Important Legal Information -- California Air Resources Board and The Environmental Protection Agency (CARB and EPA)

The intended use for the Openflash Tablet hardware (retailed by Openflash Performance Inc.) is to bring ECU diagnostic operations (normally found at dealerships and repair facilities) directly to vehicle owners.

The Openflash Tablet has the ability to perform most diagnostic and troubleshooting services typically found by high-priced diagnostic tooling at dealership and/or repair facilities.

1. OFT hardware has the ability to read and clear diagnostic trouble codes (as a high-end ECU scan tool).
2. OFT hardware has the ability to record and save multiple channels of live data during engine/vehicle operation for the purpose of diagnostic and engine performance review.
3. OFT hardware offers the ability for vehicle end-users to reprogram their vehicle ECU software using programs that match their chassis’ original EPA certificate of conformity (for that OEM manufacturer).

California Air Resources Board

The state of California regulates automobile aftermarket parts which have the potential to change, impact, or remove emissions control on any smog controlled vehicle. In some cases, the sale and use of the certain aftermarket parts may be prohibited; with the exception of replacement parts (as defined by the state of California), or specific authorized use of that part granted by the California Air Resources Board which includes or has an Executive Order.

The California Air Resources Board (CARB) regulates aftermarket parts and has promulgated regulations that essentially place all emissions related aftermarket parts into several categories:

Replacement Parts

Replacement Parts are aftermarket parts that CARB considers to be functionally equivalent to the stock part they are intended to replace, and therefore would not impact the emissions from these vehicles. These parts are appropriate for sale and use on automobiles used on or off the public highways. For aftermarket exhaust systems and related parts, here are two applicable scenarios:

(a) If the automobiles stock exhaust system does not contain a catalytic converter, then an aftermarket exhaust part is a replacement part as long as the part does not remove or replace any emission control equipment originally attached to the stock exhaust system, such as oxygen sensors.

(b) If the automobiles stock exhaust system contains a catalytic converter in the manifold section of the stock exhaust system, then an aftermarket muffler positioned downstream from the catalytic converter (i.e. cat-back) is a replacement part as long as the part does not remove or replace any emission control equipment originally attached to the stock exhaust system.

Executive Order Parts

Executive Order Parts are aftermarket parts that ARB has evaluated and determined do not adversely impact emissions, and thereby are granted an Executive Order (EO), which allows the part to be sold and used on a specified automobiles. Any aftermarket part system that replaces or otherwise impacts emission control equipment, including catalytic converters, requires an E.O. to be sold and used on a automobile used on or off a public highway.

Competition Use Only

These parts may not be sold or used on automobile that is used on or off the public highways. They can be sold for, and used on, racing vehicles designed exclusively for competition. Competition Use Only Parts are aftermarket parts that replace or otherwise interfere with the operation of an emission control device, such as a catalytic converter, test pipe, header, etc. and may be sold and used on a racing vehicle that is used only for sanctioned closed course competition.

California law defines a racing vehicle as “a competition vehicle not used on public highways.” (Calif.Health & Safety Code 39048 http://www.arb.ca.gov/bluebook/bb12/hea/hea-39048_NEW_120.htm).

Some parts sold by Vishnu Performance and/or OpenFlash Performance Inc. are intended for the sole purpose of competition use only, and may never be used in a smog controlled automobile being operated on California public highways. Competition use vehicles may under no circumstance be driven to a racing event on or off a public highway. They must be transported on a trailer or other carrier.

Use of parts, hardware, or tooling purchased from Openflash Performance Inc. for which they are not intended or legal will void any and all warranties written, stated or implied.

It is the responsibility of our customers (hardware purchaser(s)) to comply with all their local, applicable, state and federal emissions laws relating to use of the aforementioned parts. Openflash Performance Inc. fully disclaims any responsibility resulting from the incorrect use, installation, or failure of compliance any customer may have whilst using hardware purchased from Openflash Performance Inc., when being compared to original equipment or other application vs. the local state and federal laws in their region.

Governing Law

These laws aim to reduce emissions from mobile sources of air pollution, including hydrocarbons (“HC”), oxides o f nitrogen (“NOx”), and carbon monoxide (“CO”). The Alleged Violations of Law, stated below, regard motor vehicles, and violations ofthe Defeat Device prohibition ofsections 203(a)(3)(A) and 203(a)(3)(B) ofthe CAA, 42 U.S.C. §§ 7522(a)(3)(A) and 7522(a)(3)(B). What follows is a summary o f the law that governs these allegations.

Definitions, as the terms are used:

(a) “Defeat Device” means a motor vehicle part or component, including Performance Tuning Products and Replacement Pipes, whose principal effect is to bypass, defeat, or render inoperative any device or element of design installed on or in a motor vehicle or motor vehicle engine in compliance with Title II of the CAA.

(b) “Element of design” means “any control system (i.e., computer software, electronic control system, emission control system, computer logic), and/or control system calibrations, and/or the results o f systems interaction, and/or hardware items on a motor vehicle or motor vehicle engine.” 40 C.F.R. § 86.094-2. For example, manufacturers of diesel engines employ retarded fuel injection timing as a primary emission control device for emissions of oxides of nitrogen (“NOx”), while manufacturers of gasoline-powered engines employ spark timing as an emission control device. Manufacturers also employ certain hardware devices as emission control systems to manage and treat exhaust to reduce levels ofregulated pollutants from being created or emitted into the ambient air. Such devices include catalytic converters, oxygen sensors, exhaust gas recirculation (“EGR”) systems, and electronic control modules (“ECMs”).

(c) “Electronic control module” or “ECM” means a device that receives inputs from
various sensors and outputs signals to control engine, vehicle, or equipment functions. The ECM uses software programming including calculations and tables of information to provide the appropriate outputs. ECMs continuously monitor engine operating parameters to manage the operation ofthe emission control systems and elements o f design, such as fuel or spark timing.

(d) “On-Board Diagnostic System” or “OBD” is a system ofcomponents and sensors designed to detect, record, and report malfunctions o f all monitored emission-related powertrain systems or components. 40 C.F.R. § 86.1806-05(b).

(e) “Performance Tuning Products” means aftermarket ECM programmers (including hardware commonly referred to as “tuners” and software commonly referred to as “tunes”) that modify ECM programming or calibrations and/or OBD operation, whose princip~ effect of is to bypass, defeat, or render inoperative devices or elements of design installed on or in motor vehicles or motor vehicle engines in compliance with Title II o f the CAA.

(f) “Replacement Pipes” means a component that physically removes, replaces, or bypasses an aftertreatment emission control device or other elements ofdesign from the exhaust system installed on or in motor vehicles or motor vehicle engines in compliance with Title II ofthe CAA.

(g) “Motor vehicle” is defined in section 216(2) ofthe CAA, 42 U.S.C. § 7550(2), as “any self-propelled vehicle designed for transporting persons or property on a street or highway.”

(h) “Person” includes individuals, corporations, partnerships, associations, states, municipalities, and political subdivisions ofa state. 42 U.S.C. § 7602(e).

Section 203(a)(l) ofthe CAA, 42 U.S.C. § 7522(a)(l), prohibits a vehicle manufacturer from selling a new motor vehicle in the United States unless the vehicle is covered by a certificate of conformity.

EPA issues certificates of conformity to vehicle manufacturers (also known as “original equipment manufacturers” or “OEMs”) under section 206(a) ofthe CAA, 42 U.S.C. § 7525(a), to certify that a particular group of motor vehicles conforms to applicable EPA requirements governing motor vehicle emissions.

Under section 202 of the CAA, 42 U.S.C. § 7521, EPA promulgated emission standards for HC, NOx, and CO. See generally 40 C.F.R. Part 86.

Under section 202(m) of the CAA, 42 U.S.C. § 752l(m), EPA promulgated regulations requiring manufacturers of light-duty vehicles and light-duty trucks to install OBD systems on vehicles beginning with the 1994 model year. The regulations required the OBD system to monitor emission control components for any malfunction or deterioration causing exceedance of certain emission thresholds. When the OBD system detected a problem, a check-engine light on the dashboard ofthe vehicle alerted the driver that a certain repair or repairs were needed. 40 C.F.R. § 86.1806-05. Thus, OBD is a critical element of design of the motor vehicle.

Section 203(a)(3)(B) of the CAA, 42 U.S.C. § 7522(a)(3)(B), prohibits any person from manufacturing, selling, offering to sell, or installing any part or component intended for use with, or as part of, any motor vehicle or motor vehicle engine, where a principal effect of the part or component is to bypass, defeat, or render inoperative any device or element of design installed on or in a motor vehicle or motor vehicle engine in compliance with regulations under Title II of the CAA, where the person knows or should know that such part or component is being offered for sale or installed for such use or put to such use.

Section 203(a)(3)(A) of the CAA, 42 U.S.C. § 7522(a)(3)(A), prohibits any person from removing or rendering inoperative any device or element of design installed on or in a motor vehicle or motor vehicle engine in compliance with regulations under Title II of the CAA.

Persons violating sections 203(a)(3)(A) and 203(a)(3)(B) ofthe CAA, 42 U.S.C. §§ 7522(a)(3)(A) and 7522(a)(3)(B), are subject to a civil penalty o f up to $3,750 for each for each violation that occurred prior to November 2, 2015, and up to $4,527 for each violation that occurred on or after November 2, 2015. CAA§ 205(a), 42 U.S.C. § 7524(a); 40 C.F.R. § 19.4.

Rather than referring a matter to the United States Department of Justice (DOJ) to commence a civil action, the EPA may assess a civil penalty through its own administrative process if the penalty sought is less than $362,141 or if the EPA and the DOJ jointly determine that a matter involving a larger penalty amount is appropriate for administrative penalty assessment. 42 U.S.C. § 7524(c); 40 C.F.R. § 19.4.