Revised August 23, 2023
CUBIC ITS TERMS AND CONDITIONS
These terms and conditions of sale (the “Terms and Conditions”) constitute the terms and conditions of
sale between Cubic ITS and the party identified on the face hereof or in any separate quote, purchase
order or services agreement (“Buyer”).
TERMS OF SALE
A. GENERAL These Terms and Conditions apply to equipment purchases, spare parts, software licensing,
services and repairs obtained from Cubic. These terms apply to orders placed by the issuance of a
purchase agreement or purchase order via email, facsimile, courier, or mail as well as to electronic sales
placed by Buyer through a Cubic website, if applicable.
B. ACCEPTANCE. Buyer’s acceptance of any offer, goods or services associated with these terms is
expressly conditioned on the Buyer’s assent to these terms and conditions. Cubic hereby objects to and
expressly rejects any additional or different terms proposed by the Buyer. Buyer’s issuance of an order
in response to this quote shall constitute acceptance of the quote and these terms and conditions. No
understanding, promise or representation, and no waiver, alteration, addition to, or modification of any
provision hereof, shall be binding upon Cubic unless agreed to in writing by an authorized representative
of Cubic. These Terms and Conditions supersede all other agreements, oral or written heretofore made
between Buyer and Cubic relating to the subject matter contained herein.
C. PRICING All prices are in United States Dollars, exclusive of all applicable taxes and are subject to
correction or change upon 90 days written notice. Buyer agrees to pay and be solely responsible for
the payment of any applicable taxes other than taxes payable based on Cubic’s net income. Export
orders may be subject to special pricing. Market sensitive products will be priced according to current
market conditions. Despite our efforts, occasional pricing errors may occur. Cubic reserves the right to
cancel any and all orders resulting from such pricing errors, even if Buyer has received an order
confirmation from Cubic.
D. CHANGES All changes in any term or condition hereof must be agreed to and accepted by Cubic. Any
difference in price, delivery or other terms resulting from such change shall be equitably adjusted and
the purchase agreement/purchase order modified accordingly.
E. TERMINATION/CANCELLATION In the event of a partial termination or if the entire purchase
agreement/purchase order is terminated, the Buyer shall pay 100% of the actual costs incurred by Cubic
relating to such termination plus 15%, up to a maximum of 115% of the value of the purchase
F. DELAY IN SHIPMENT If the Buyer fails to accept shipment in accordance with the agreed schedule,
such failure may be considered by Cubic as a Breach entitling Cubic to terminate this purchase
agreement/purchase order in whole or in part, as applicable, in accordance with Clause E hereof.
G. DELIVERY date is the date stated in the purchase agreement/purchase order acknowledgment.
Cubic will not allow partial shipments without the consent of the Buyer. Partial shipments will be
subject to payment terms in Clause I. If the Buyer desires partial shipments, Buyer must place separate
purchase orders with the desired shipment date(s).
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H. SHIPMENT and RISK OF LOSS Shipment will be F.O.B. Origin Freight Paid. Transportation method
is at Cubic’s option and Cubic shall bear the responsibility for outbound transportation charges. The
risk that the ordered goods may be lost, damaged, or delayed in transit shall be borne by Buyer at
the point of origin.
I. INVOICING AND PAYMENT TERMS Invoicing shall take place at time of shipment. Payment terms are
net thirty (30) days from date of invoice. Buyer agrees that these same terms will also apply to any partial
shipments. Cubic accepts cash, check, Electronic Funds Transfer, and certain credit cards. All credit
extended by Cubic to Buyer and the limits of such credit, is at Cubic’s sole discretion, and may be reduced
or revoked by Cubic at any time, for any reason. As a condition for the continued extension of credit,
Buyer agrees to provide Cubic with current credit information and the latest annual financial statement
within five (5) business days following request by Cubic. Furthermore, Cubic reserves the right to charge
Buyer a late payment fee at the rate of one and one-half percent (1½%) of the amount due for each
month or portion thereof that the amount due remains unpaid or such amount as may be permitted
under applicable law. Export orders may be subject to special export payment terms and conditions. All
payments must be made in U.S. dollars. If Buyer fails to make payment within thirty (30) days of invoice,
or fails to comply with Cubic’s credit terms, or fails to supply adequate assurance of full performance to
Cubic within a reasonable time after requested by Cubic (such time as specified in Cubic's request), Cubic
may suspend shipments and/or services, if any, until such payment or compliance is made. Additionally,
Cubic may require cash in advance for any further shipments, demand immediate payment of all
amounts then owed, elect to pursue collection action (including without limitation, attorneys’ fees and
any and all other associated costs of collection), and/or may, at its option, cancel all or any part of an
unshipped order in accordance with Clause E hereof. Additionally, Buyer, and each of its subsidiaries and
affiliates, agrees to provide to Cubic proper authorization necessary for Cubic to request any financial
information from third parties. Buyer agrees to assume responsibility for, and Buyer hereby
unconditionally guarantees payment of, as provided herein, all purchases made by Buyer, its
subsidiaries, and affiliates. Each of Buyer’s subsidiaries and affiliates purchasing from Cubic are jointly
and severally liable for purchases with Buyer, and Buyer is also acting as agent for such subsidiaries and
J. SALES AND SIMILAR TAXES The prices provided for in any purchase agreement/purchase order are
exclusive of any present or future import duty, federal, state, provincial, county, municipal, or other
sales, use, excise, gross receipts, value added or similar tax with respect to the products and services
covered hereby, and of any inventory or property tax or other similar charges with respect to the
products and services covered hereby, unless such taxes are provided in the applicable quotation. If
Cubic is assessed or is required by applicable law or regulation to pay or collect any such duty, tax, or
charge on account of this purchase agreement/purchase order, then such amount of tax or taxes shall be
paid by the Buyer to Cubic in addition to the prices otherwise provided in the purchase
agreement/purchase order. If the Buyer is exempt from the payment of applicable duty, tax, or charge,
the Buyer shall provide Cubic with a suitable copy of the tax-exempt certificate or permit at the time the
purchase agreement/purchase order is issued.
K. WARRANTY - See Warranty terms in Exhibit A
L. MAINTENANCE Buyer shall be responsible for the maintenance of any deliverables provided. In the
event Buyer elects to have Cubic perform maintenance, such maintenance will be provided at prevailing
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M. LIMITATION OF LIABILITY
CUBIC SHALL NOT BE LIABLE FOR ANY SPECIAL, INCIDENTAL, INDIRECT, CONSEQUENTIAL, EXEMPLARY
OR PUNITIVE DAMAGES OR LOSSES WHICH MAY BE SUFFERED BY BUYER WITH RESPECT TO THIS
PURCHASE AGREEMENT/PURCHASE ORDER, INCLUDING BUT NOT LIMITED TO, LOSS OF PRESENT OR
PROSPECTIVE CUBIC TERMS AND CONDITIONS PROFITS, LOSS OF INCOME OR REVENUE, EXPENDITURES,
INVESTMENTS OR COMMITMENTS, OR LOSS OF BUSINESS OR DATA, WHETHER IN AN ACTION IN
CONTRACT, EQUITY, NEGLIGENCE, INTENDED CONDUCT, TORT, OR OTHERWISE (INCLUDING BREACH OF
WARRANTY, NEGLIGENCE, AND STRICT LIABILITY IN TORT), EVEN IF CUBIC HAS BEEN ADVISED OF THE
POSSIBILITY OF SUCH DAMAGES. THE TOTAL AGGREGATE LIABILITY OF CUBIC FOR CLAIMS ASSERTED
UNDER THIS AGREEMENT SHALL BE LIMITED TO THE PURCHASE PRICE PAID FOR THE PRODUCT THAT
GIVES RISE TO ANY LIABILITY.
N. TITLE The title and right of possession of Buyer’s equipment repaired or modified hereunder shall
remain with the Buyer, subject to any applicable lien rights of Cubic. Cubic shall bear risk of loss for
Buyer’s property while on Cubic’s premises. Reasonable access to this equipment shall be provided to
Buyer. Cubic shall retain title for all shipped items until delivery F.O.B. Origin Freight Prepaid.
O. CHOICE OF LAW / DISPUTES The validity, interpretation and performance of the purchase
agreement/purchase order shall be governed by and construed under the laws of the State of Texas,
excluding its choice of law principles. Any controversy or claim arising out of or relating to the purchase
agreement/purchase order, transaction or the breach, termination, or invalidity thereof, shall be settled
by binding arbitration in Fort Bend County, Texas, USA, in accordance with the rules of the American
Arbitration Association (“AAA”). There shall be one arbitrator appointed by the AAA trained in the law
who shall have experience in arbitration of similar disputes. The language of the arbitration shall be
English. Judgment upon the award rendered by the arbitrator(s) may be entered in any court having
jurisdiction thereof. Each party shall be responsible for its respective costs and attorneys’ fees incurred
in arbitration, except that costs and fees invoiced by the AAA for the services of the arbitrator(s) and its
own fees and expenses shall be borne equally by the parties.
P. PROPRIETARY RIGHTS AND SOFTWARE Title to all Cubic and third-party software (including software
embedded within hardware), proprietary data, intangible property, intellectual property, patents,
patents pending, trade secrets, copyrights, trade dress, service and trademarks, service and trade
names, designs, drawings, and the like, shall remain with Cubic or relevant third party, as applicable. All
software usage hereunder shall be governed by the Cubic Software License Agreement, Section III. Buyer
shall have no right, title, or interest in the trade names, trademarks, trade dress, copyrights, patents,
domain names, product names, catalogs or any other intellectual property rights reserved by Cubic, or
any trademarks or service marks owned by suppliers to Cubic. Buyer shall have no right to copy or use
any of the intellectual property of Cubic or its suppliers without Cubic's written permission.
Q. CONFIDENTIALITY Buyer shall treat the delivery items as confidential, and shall not disclose them, nor
any part of them to third parties Only Buyer's employees who have a need to know, and who are
informed in writing not to disclose the deliverable items or any part of them to third parties, may have
access to the deliverable items. Buyer shall not reverse engineer the deliverable items. In addition, any
other items which are marked as confidential, proprietary, or the like, shall not be disclosed to any third
party and may be disclosed to only those employees of Buyer described above.
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R. FORCE MAJEURE The parties shall not be liable to each other for any loss, damage or other claim
whatsoever arising out of a delay, failure, or inability to perform any obligation(s) contained in the
purchase agreement/purchase order which is beyond a party’s reasonable control. Such causes may
include, but are not limited to, any act of God, severe weather conditions, catastrophic events, fire,
flood, lightning, earthquake, tornado, labor disputes, transportation delays, pandemic, war, terrorism
(actual or threatened), revolution, riot, sabotage, act of the public enemy, explosion, embargo,
confiscation or act or failure to act of any government, agency, board, or commission. Lack of finances
shall in no event be deemed to be a cause beyond a party’s reasonable control.
S. CUSTOM PRODUCTS Cubic may offer products manufactured or assembled to Buyer’s specifications
(“Custom Product(s)”). Cubic is not responsible for verifying or confirming the accuracy of specifications
provided by Buyer to Cubic for Custom Products. All Custom Products are sold on a “FINAL SALE” basis
only, and no cancellations, returns, refunds or credits are allowed. CUBIC'S LIMITED WARRANTY TERMS
INCLUDED IN THESE TERMS AND CONDITIONS (AS EXHIBIT A) DO NOT APPLY TO CUSTOM PRODUCTS.
CUSTOM PRODUCT WARRANTY PROVIDED BY CUBIC SHALL BE LIMITED TO WHATEVER WARRANTY
TERMS ARE AGREED BETWEEN THE PARTIES AS REFLECTED IN APPLICABLE SALES OR PURCHASE ORDER
T. EXPORT COMPLIANCE Cubic's performance hereunder may be subject to export restrictions,
regulations, and licensure. Buyer shall assist Cubic, to the extent necessary, in obtaining all applicable
U.S. Government export licenses. Cubic's failure to timely receive appropriate export licensure or
government documentation shall excuse Cubic from performance.
Once the delivery items are in Buyer's custody, Buyer shall comply with continuing export restrictions,
regulations, licensure, and technical assistance agreement(s), including without limitation, the
International Traffic in Arms Regulations, Title 22 Code of Federal Regulations Section 120 et seq. Buyer
shall defend and indemnify Cubic from all losses and damages arising from Buyer's breach of the
obligations set forth in this Section.
U. ANTI-BRIBERY/GRATUITIES/CORRUPTION COMPLIANCE Buyer hereby certifies that it has and will
continue to comply with all applicable anti-bribery, anti-corruption, and procurement integrity laws and
regulations (including, but not limited to, the United States Foreign Corrupt Practices Act and the U.S.
Procurement Integrity Act) in all matters pertaining or related to the subject matter of this Agreement.
Buyer shall, from time to time, provide written certifications to this effect upon written request from
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ADDITIONAL TERMS AND CONDITIONS RELATED TO THE PERFORMANCE OF SERVICES.
IN ADDITION TO THE STANDARD TERMS AND CONDITIONS IN SECTION I, PERFORMANCE OF
SERVICES WILL BE GOVERNED BY THE FOLLOWING ADDITIONAL TERMS AND CONDITIONS
(“ADDITIONAL SERVICE TERMS”). SERVICES MAY BE PERFORMED BY: (i) CUBIC, ITS EMPLOYEES AND
AGENTS (“CUBIC PERSONNEL”); (ii) CUBIC SUBSIDIARIES OR AFFILIATES (“CUBIC SERVICE ENTITIES”);
OR THIRD-PARTY SUBCONTRACTORS ("THIRD-PARTY PROVIDERS"). FOR PURPOSES OF THIS SECTION
II, CUBIC PERSONNEL, CUBIC SERVICE ENTITIES AND THIRD-PARTY PROVIDERS ARE EACH REFERRED
TO AS A “SERVICE PROVIDER” AND EACH SERVICE PROVIDER, TOGETHER WITH ITS PERSONNEL, IS
REFERRED TO AS “SERVICE PROVIDER PERSONNEL.” THE TERMS AND CONDITIONS CONTAINED IN
THIS SECTION II ARE EXTENDED SOLELY BY THE SPECIFIC SERVICE PROVIDER PERFORMING SERVICES.
DEPENDING UPON THE NATURE OF THE SERVICES PROVIDED, THE APPLICABLE SERVICE PROVIDER
MAY REQUIRE BUYER TO EXECUTE ADDITIONAL CONTRACTUAL DOCUMENTS PRIOR TO THE
PERFORMANCE OF SUCH SERVICES. IN THE EVENT OF A CONFLICT BETWEEN THE STANDARD TERMS
AND CONDITIONS IN SECTION I AND THE ADDITIONAL SERVICE TERMS IN SECTION II, THE
ADDITIONAL SERVICE TERMS IN SECTION II SHALL PREVAIL FOR THE PERFORMANCE OF SERVICES.
AA. LIMITED SERVICES WARRANTY ALL SERVICES WILL (i) BE PERFORMED IN A WORKMANLIKE
MANNER; (ii) CONFORM TO THE SPECIFICATIONS (IF ANY) PROVIDED BY THE SERVICE PROVIDER IN A
STATEMENT OF WORK; AND (iii) IF SERVICES ARE IMPROPERLY PERFORMED AND BUYER NOTIFIES
THE SERVICE PROVIDER OF THE IMPROPERLY PERFORMED SERVICES WITHIN 90 DAYS AFTER
PERFORMANCE OF SUCH SERVICES, THEN THE SERVICE PROVIDER WILL RE-PERFORM THOSE
SERVICES, IN WHOLE OR IN PART, AS NECESSARY TO CURE THE PARTICULAR BREACH, OR AT THE
SERVICE PROVIDER'S SOLE OPTION, REFUND THE AMOUNT PAID BY BUYER FOR THE SERVICES
DIRECTLY ATTRIBUTABLE TO THE PARTICULAR BREACH. THE SERVICE PROVIDER'S RE-PERFORMANCE
OR REFUND OF AMOUNTS PAID BY BUYER FOR THE SERVICE DIRECTLY ATTRIBUTABLE TO THE
PARTICULAR BREACH SHALL BE BUYER'S SOLE AND EXCLUSIVE REMEDY.
BB. WARRANTY DISCLAIMER AND WAIVER FOR SERVICES TO THE MAXIMUM EXTENT PERMITTED BY
APPLICABLE LAW, THE EXPRESS WARRANTIES SET FORTH IN THIS SECTION II FOR SERVICES ARE IN
LIEU OF ALL OTHER WARRANTIES, EXPRESS OR IMPLIED, AND THE SERVICE PROVIDER DISCLAIMS,
AND BUYER WAIVES, ALL OTHER WARRANTIES FOR SERVICES, INCLUDING, BUT NOT LIMITED TO,
ANY IMPLIED WARRANTIES OF NON-INFRINGEMENT, FITNESS FOR A PARTICULAR PURPOSE AND
MERCHANTABILITY. THE WARRANTIES SET FORTH IN THIS SECTION II ARE EXPRESSLY CONDITIONED
UPON THE USE OF THE SERVICES FOR THEIR INTENDED PURPOSE AND SHALL NOT APPLY TO
SERVICES WHICH HAVE BEEN SUBJECT TO MODIFICATION BY BUYER OR ANY THIRD PARTY.
CC. LIMITATION OF LIABILITY THE SERVICE PROVIDER EXPRESSLY DISCLAIMS ANY LIABILITY FOR
CONSEQUENTIAL, INCIDENTAL, SPECIAL, EXEMPLARY OR PUNITIVE DAMAGES IN THE PERFORMANCE
OF SERVICES. THE SERVICE PROVIDER'S LIABILITY IN ALL CIRCUMSTANCES IS LIMITED TO, AND SHALL
NOT EXCEED, THE PURCHASE PRICE FOR THE PERFORMANCE OF THE PORTION OF SERVICES THAT
GIVES RISE TO ANY PARTICULAR LIABILITY.
DD. PAYMENT AND CREDIT TERMS Except as otherwise agreed to by the parties, Buyer will be
invoiced upon completion of mutually agreed milestone(s) or completion of services. Payment terms
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are net thirty (30) days from the date of invoice. All other payment terms are as set forth in Section
EE. TERMINATION Either party may terminate the service agreement at any time and for any reason
upon sixty (60) days' written notice to the other party. If terminated by Buyer, Buyer shall, in
addition to amounts previously paid, pay Service Provider an amount equal to the value of any work
completed and not billed plus all reasonable wind-down costs to close out the service agreement
the greater of (i) Ten percent (10%) of the total project cost quotation thereto (the “Total Project
Cost”), or (ii) an amount equal to the Total Project Cost multiplied by the percentage completion for
such project at the time the notice of termination is given, as determined by Service Provider.
FF. INDEMNITY Buyer shall defend, indemnify and hold harmless Service Provider and its respective
officers, directors, employees, subcontractors and agents (each individually, an “Indemnified Party”)
from and against any and all any claims, suits, liabilities, damages, settlements, charges, taxes and
any other losses or expenses (including reasonable attorneys' fees) (collectively “Liabilities”) for
physical injury to, illness or death of, any third party regardless of status and damage to or
destruction of any tangible property which the third party may sustain or incur, to the extent such
Liabilities relate to the services; except for such Liabilities relating to or arising out of a final
judgment of gross negligence or willful misconduct of the Indemnified Party. In any action, suit or
proceeding brought against an Indemnified Party by reason of any such claim as specified above,
Buyer shall resist and defend such action, suit or proceeding by counsel of its choice with consent
from the Indemnified Party, at the sole expense of Buyer, provided that (i) the Indemnified Party
notifies Buyer promptly in writing of the claim; (ii) Buyer's counsel does not give rise to a conflict of
interest with respect to the Indemnified Party; (iii) Buyer has control of the defense and all related
settlement negotiation but shall keep the Indemnified Party reasonably informed of status, provided
that Buyer shall only settle the legal action with consent from the Indemnified Party; and (iv) the
Indemnified Party provides Buyer with all reasonably necessary assistance, information, and
authority to perform the foregoing at Buyer's expense.
ACCESS TO BUYER’S PREMISES To the extent access to and/or office space within Buyer's premises is
required; Buyer shall provide Service Provider personnel such access to and/or office space within
Buyer's premises free of charge as necessary for performance of services supplied by Service Provider.
Prior to starting any work at Buyer's premises, Buyer will: (i) provide documentation that identifies
any existing hazardous materials or dangerous or potentially dangerous conditions on or about
Buyer's premises; and (ii) allow Service Provider personnel, at its option, reasonable access to Buyer's
premises to perform or have performed a visual site inspection. Service Provider will have no
responsibility or liability for the actual existing conditions; or identifying, correcting or advising Buyer
of existing conditions on Buyer's premises (“Pre-Existing Conditions”), and Buyer shall be responsible
for and shall indemnify each Service Provider and each of the Service Provider personnel from and
against any Liabilities arising out of or relating to any Pre-Existing Conditions, regardless of whether
previously disclosed to any Service Provider or Service Provider personnel. Buyer shall not attempt to
condition the right of Service Provider personnel to obtain free access to Buyer's premises upon the
signing of any agreement, waiver, or release which in any way purports to affect the legal rights or
obligations of Service Provider or Service Provider personnel. If any Service Provider personnel sign
such an agreement, waiver, or release, it shall be of no force and effect.
Buyer shall comply with Cubic’s workplace safety requirements, including the COVID-19 Workplace
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Safety Protocols and all other applicable laws relating to workplace safety and COVID-19 including
Executive Order (EO) 14042 on Ensuring Adequate COVID Safety Protocols for Federal Contractors,
DFARS 252.223-7999 Ensuring Adequate COVID-19 Safety Protocols for Federal Contractors
(Deviation 2021-O009) and FAR 52.223-99 Ensuring Adequate COVID-19 Safety Protocols for Federal
Contractors (Oct 2021) (Deviation). Buyer shall also comply with such other and further protocols
and rules as may be announced by Cubic from time to time or required by additional US
Government regulations, EOs or under the guidance of the Safer Federal Workforce Task Force.
GG. RIGHT TO SUBCONTRACT Buyer agrees that the Service Provider may subcontract the
performance of services to third parties. Buyer authorizes the Service Provider to disclose all
information to the subcontractor, including confidential information necessary for such
performance of services by the subcontractor.
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SOFTWARE LICENSE AGREEMENT
THE SOFTWARE PROGRAMS AND/OR DOCUMENTATION (“SOFTWARE”) PROVIDED TO YOU ARE
LICENSED, NOT SOLD. CUBIC ITS, (“CUBIC ”), OWNS ALL COPIES OF THE SOFTWARE, INCLUDING
BACKUP AND ARCHIVAL COPIES. YOU (THE “LICENSEE”) ONLY HAVE THE LIMITED RIGHTS EXPRESSLY
GRANTED TO YOU UNDER THE TERMS OF THIS SOFTWARE LICENSE AGREEMENT (“SLA”).
LICENSEE UNDERSTANDS AND ACKNOWLEDGES THE FOLLOWING TERMS AND CONDITIONS AND
AGREES THAT INSTALLING, OPERATING OR USING THE SOFTWARE IN ANY WAY INDICATES
LICENSEE’S ACCEPTANCE OF THESE TERMS AND CONDITIONS.
1. Rights in Data. Licensee acknowledges and agrees that all ownership rights, title and interest in
the Software shall remain with Cubic, whether or not incorporated into or with other software,
including, but not limited to, the right of copyright. Licensee acknowledges and agrees that the
Software is the proprietary information of Cubic and that this Agreement grants Licensee no title or
right of ownership in the Software.
2. License Grant. In consideration of the payment of the license fee under separate agreement and
Licensee’s acceptance of the terms of this SLA, Cubic hereby grants to Licensee a royalty free,
irrevocable, perpetual, nonexclusive, non-transferable, non-sublicensable license to use the
Software. Any revision changes, updates, upgrades or enhancements to the Software that are
provided to Licensee shall be subject to all terms of this SLA. Licensee may make one (1) copy of the
Software for back-up purposes only.
3. Restrictions. Licensee may not: (a) copy (other than the one copy for back-up purposes),
distribute, rent, lease, assign, transfer, mortgage, or sell the Software or sublicense all or any
portion of the Software; (b) reverse engineer, decompile or disassemble the Software; or (c) modify,
alter or make derivative works of the Software. Licensee agrees to keep confidential and implement
reasonable measures to prevent and protect the Software and its contents from unauthorized
disclosure or use. Licensee also agrees to include the copyright notice, trademark, or proprietary
legends of Cubic associated with the Software on the back-up copy, and to verify the same has been
affixed to any revision changes, updates, upgrades or enhancements that are provided to Licensee.
4. Warranty. See software warranty terms in Exhibit A.
5. CUBIC SHALL NOT BE LIABLE FOR ANY SPECIAL, INCIDENTAL, INDIRECT, CONSEQUENTIAL,
EXEMPLARY OR PUNITIVE DAMAGES OR LOSSES WHICH MAY BE EXPERIENCED BY LICENSEE WITH
RESPECT TO THIS SOFTWARE LICENSE AGREEMENT AND/OR USE OF THE SOFTWARE, INCLUDING
BUT NOT LIMITED TO, LOSS OF PROFITS, LOSS OF INCOME OR REVENUE, EXPENDITURES,
INVESTMENTS OR COMMITMENTS, OR LOSS OF BUSINESS OR DATA, WHETHER IN AN ACTION IN
CONTRACT, EQUITY, NEGLIGENCE, INTENDED CONDUCT, TORT, OR OTHERWISE (INCLUDING BREACH
OF WARRANTY, NEGLIGENCE, AND STRICT LIABILITY IN TORT), EVEN IF CUBIC HAS BEEN ADVISED OF
THE POSSIBILITY OF SUCH DAMAGES. THE TOTAL AGGREGATE LIABILITY OF CUBIC FOR CLAIMS
ASSERTED UNDER THIS SOFTWARE LICENSE AGREEMENT SHALL BE LIMITED TO THE TOTAL VALUE
OF THE LICENSE FEE PAID FOR THE SOFTWARE GIVING RISE TO ANY SUCH LIABILITY.
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(a) Cubic agrees to defend, or at its option settle, indemnify and hold Licensee harmless from any
and all third party intellectual property infringement suits, claims, or proceedings brought against
Licensee as a result of Licensee’s stand-alone use of the Software where Licensee has (i) given Cubic
prompt notice of such suit, claim, or proceeding; (ii) allowed Cubic to have sole control of the
defense or settlement of such suit, claim or proceeding; and (iii) given Cubic all necessary assistance
to defend the same.
Notwithstanding subparagraph (a) above, Cubic shall not be bound to defend, indemnify, or hold
Licensee harmless where (i) such claim or action would have been avoided but for modifications of
the Software, or portions thereof, made after delivery to the Licensee; (ii) such claim or action
would have been avoided but for the combination or use of the Software, or portions thereof, with
other products, processes or materials not supplied or specified in writing by Cubic; (iii) Licensee
continues allegedly infringing activity after being notified thereof or after being informed of
modifications that would have avoided the alleged infringement; or (iv) Licensee’s use of the
Software is not strictly in accordance with the terms of this Software License Agreement. Licensee
will be liable for all damages, costs, expenses, settlement and attorneys’ fees related to any claim of
infringement arising as a result of (i) – (iv) in the immediately preceding sentence.
(b) If a third party's claim endangers or disrupts Licensee's use of the Software, Cubic shall, at Cubic’s
option and at no charge to Licensee, (i) obtain a license so Licensee may continue use of the
Software; (ii) modify the Software to avoid the infringement; (iii) replace the Software with a
compatible, functionally equivalent and non-infringing product; or (iv) refund to Licensee the
amount paid for the Software as depreciated on a straight-line sixty (60) month basis; provided,
however, Cubic shall have no such obligation where any of subparagraphs (b)(i)-(iv) apply.
(c) THE FOREGOING PROVISIONS OF THIS SECTION STATE THE ENTIRE LIABILITY AND OBLIGATIONS
OF CUBIC, AND THE EXCLUSIVE REMEDY OF LICENSEE, WITH RESPECT TO ANY ACTUAL OR ALLEGED
INFRINGEMENT OF ANY INTELLECTUAL PROPERTY RIGHTS BY THE SOFTWARE.
7. EXPORT REGULATIONS. If the Software is for use outside of the United States, Licensee agrees to
comply fully with all relevant regulations of the United States Department of Commerce and with
the United States Export Administration Act to assure that the Software and media are not exported
in violation of the United States Export Laws.
8. MAINTENANCE. Licensee may obtain maintenance support after the one year period for the
Software by purchasing a software maintenance contract from Cubic at its then current applicable
9. GOVERNING LAW. This Software License Agreement shall be deemed to have been made in, and
shall be construed pursuant to, the laws of the State of Texas, USA.
10. DISPUTE. In the event of any unresolved dispute between the parties relating to this Software
License Agreement, such unresolved dispute shall be submitted to binding arbitration under the
Commercial Rules of Arbitration of the American Arbitration Association (AAA). The arbitration shall
be held in Fort Bend County, Texas, USA. There shall be a single arbitrator appointed by the AAA.
The decision of the arbitrator shall be final and binding. The prevailing party shall be entitled to
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recover actual attorney fees and costs, including expert witness fees and associated expenses.
Licensee acknowledges that, due to the unique nature of the Software, there may be no adequate
remedy at law for the Licensee’s unauthorized use or disclosure of the Software in breach of this
Software License Agreement and that such breach may cause immediate and irreparable harm to
Cubic. Accordingly, notwithstanding the provisions of the paragraph above, upon any such breach or
any threat thereof by the Licensee, Cubic shall be entitled to pursue appropriate equitable or
injunctive relief from any court of competent jurisdiction.
11. NON-WAIVER. Failure or neglect by Cubic to enforce at any time any of its rights or remedies
shall not be deemed a waiver of its rights or remedies nor prejudice Cubic’s right to take subsequent
12. SEVERABILITY. In the event any of these terms are determined to be invalid or unenforceable to
any extent such term shall be modified to the limited extent required to permit its enforcement in a
manner most closely representing the intention of the Parties as expressed herein, and the
remainder of this Software License Agreement shall continue to be valid to the fullest extent
permitted by law.
13. ASSIGNMENT. Licensee may not assign this Software License Agreement without the prior
written consent of Cubic which shall not be unreasonably withheld.
14. TAXES. Licensee is responsible for payment of all applicable taxes associated with this Software
15. ENTIRE AGREEMENT. No change, waiver, or discharge hereof shall be valid unless in writing and
signed by authorized representatives of both the Licensee and Cubic. This Software Agreement is
the exclusive statement of the understanding between the parties with respect to licensing the
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CUBIC ITS HARDWARE WARRANTY
CUBIC WARRANTS TO THE BUYER THAT THE HARDWARE DELIVERABLES HEREUNDER WILL BE FREE
FROM DEFECTS IN MATERIAL AND WORKMANSHIP FOR THESE PERIODS:
• THREE (3) YEARS FOR GRIDSMART PROCESSORS AND FISHEYE CAMERAS;
• NINETY (90) DAYS FOR GRIDSMART ACCESSORIES;
• ONE (1) YEAR FOR ALL OTHER NEW HARDWARE NOT EXPLICITLY NAMED ABOVE INCLUDING,
BUT NOT LIMITED TO, TRAFFIC SIGNAL CONTROLLERS, TRAFFIC CABINETS, TRAFFIC CABINET
PLUG-INS, TRAFFIC CABINET ACCESSORIES, AND GRIDSMART TRADITIONAL CAMERAS.
THE APPLICABLE WARRANTY PERIOD SHALL BEGIN NINETY (90) DAYS AFTER THE DATE OF SHIPMENT.
THE WARRANTY PERIOD FOR ANY REPAIRED HARDWARE OUTSIDE THE INITIAL WARRANTY PERIOD IS
ONE (1) YEAR AND APPLIES TO THE REPAIRED COMPONENTS ONLY. IF ANY DELIVERABLES DO NOT
CONFORM TO THE APPLICABLE WARRANTY, AND IF THE BUYER PROMPTLY NOTIFIES CUBIC, CUBIC
SHALL DETERMINE WHETHER OR NOT THE CLAIMED DEFECT EXISTS. IF CUBIC DETERMINES THAT A
DEFECT DOES EXIST, IT WILL, AT CUBIC’S OPTION, EITHER (I) REPAIR THE DEFECT, (II) REPLACE THE
DEFECTIVE PRODUCT, OR (III) CREDIT OR REFUND THE BUYER A PRO-RATED AMOUNT OF THE PURCHASE
PRICE OF THE PRODUCT. BUYER MAY OPTIONALLY PURCHASE ADDITIONAL YEARS OF WARRANTY FROM
THIS LIMITED WARRANTY DOES NOT COVER LOSS OR DAMAGE WHICH: (i) IS DUE TO IMPROPER
INSTALLATION (OTHER THAN INSTALLATION BY CUBIC), MAINTENANCE, MISUSE, NEGLECT, OR ANY
CAUSE OTHER THAN THE BUYER’S, OR ITS CUSTOMER’S OR CONTRACTOR’S, USE OF THE PRODUCT IN
THE APPLICATION IT WAS INTENDED; (ii) IS DUE TO ADJUSTMENT, REPAIR OR MODIFICATION BY ANY
PERSON OTHER THAN AS AUTHORIZED BY CUBIC; OR, (iii) IS DUE TO STORAGE OR USE IN AN IMPROPER
ENVIRONMENT, EXCESSIVE OR INADEQUATE HEATING OR AIR CONDITIONING, AND ELECTRICAL POWER
FAILURES, SURGES OR OTHER IRREGULARITIES WHILE IN THE CUSTODY OR CONTROL OF BUYER OR ITS
CUSTOMER OR CONTRACTORS.
CUBIC IS NOT RESPONSIBLE FOR PROBLEMS CAUSED BY HARDWARE OR COMPUTER OPERATING
SYSTEMS WHICH ARE NOT COMPATIBLE WITH THE SYSTEM SPECIFICATIONS AS SET FORTH IN CUBIC’S
TECHNICAL DOCUMENTATION, OR FOR PROBLEMS IN THE INTERACTION WITH NON-CUBIC SUPPLIED
SOFTWARE OR EQUIPMENT, THE USE OF WHICH IS NOT APPROVED BY CUBIC. CUBIC SHALL HAVE NO
LIABILITY WITH RESPECT TO DELIVERABLES THAT WERE SUBJECTED TO ABUSE, VANDALISM OR MISUSE.
THE WARRANTY SET FORTH HEREIN IS THE SOLE AND EXCLUSIVE WARRANTY, IN LIEU OF ALL OTHER
WARRANTIES, AND NO OTHER WARRANTIES OF ANY KIND SHALL APPLY, WHETHER EXPRESSED OR
IMPLIED, INCLUDING, BUT NOT LIMITED TO, THE IMPLIED WARRANTIES OF MERCHANTABILITY, FITNESS
FOR A PARTICULAR PURPOSE, AND FREEDOM FROM THIRD PARTY INFRINGEMENT CLAIMS.
NO RETURNS, FOR ANY REASON, WILL BE ACCEPTED WITHOUT BUYER OBTAINING A RETURN MATERIAL
AUTHORIZATION (RMA) NUMBER IN ADVANCE FROM CUBIC. A 25% RESTOCKING FEE BASED ON THE
ITEM PRICE WILL BE CHARGED TO THE BUYER FOR ALL RETURNS FOR REASONS OTHER THAN WARRANTY.
FREIGHT CHARGES WILL BE THE RESPONSIBILITY OF THE BUYER. BEFORE RETURNING ANY PRODUCT FOR
ANY REASON, BUYER MUST:(I) CONTACT THE CUBIC FACILITY FROM WHICH THE PRODUCT WAS
PURCHASED; (II) USE THE CUBIC TICKETING SYSTEM HTTP://CUBICITS.FRESHDESK.COM; OR (III) CALL
CUSTOMER CARE AT 1-866-652-5347 TO SPEAK TO YOUR CUSTOMER SERVICE REPRESENTATIVE.
Revised August 23, 2023
CUBIC ITS SOFTWARE WARRANTY
CUBIC WARRANTS TO THE BUYER THAT THE SOFTWARE SHALL SUBSTANTIALLY PERFORM AS DESCRIBED
IN THE CUBIC DOCUMENTATION, AS IT EXISTS ON THE DATE OF DELIVERY FOR A PERIOD OF ONE YEAR
FROM THE DATE OF DELIVERY WITH RESPECT TO TRAFFICWARE SOFTWARE AND FOR THE LIFE OF THE
SYSTEM WITH RESPECT TO GRIDSMART SOFTWARE. BUYER MAY OPTIONALLY PURCHASE ADDITIONAL
YEARS OF WARRANTY FROM CUBIC FOR THE TRAFFICWARE SOFTWARE, UP TO FIVE (5) YEARS TOTAL.
CUBIC’S SOLE OBLIGATION WITH RESPECT TO THIS SOFTWARE WARRANTY SHALL BE LIMITED TO USING
REASONABLE EFFORTS TO CORRECT CUBIC CONFIRMED DEFECT(S) AND TO EITHER (I) SUPPLY A
CORRECTED VERSION WITHIN CUBIC’S NORMAL DEVELOPMENT PROCESS AND SOFTWARE RELEASE
CYCLE, OR (II) IF A CORRECTED VERSION CANNOT BE COMMERCIALLY REASONABLY DEVELOPED CREDIT
OR REFUND THE BUYER A PRO-RATED AMOUNT OF THE PURCHASE PRICE OF THE SOFTWARE.
THE LIMITED WARRANTIES CONTAINED HEREIN DO NOT INCLUDE LOSS OR DAMAGE WHICH: (i) IS DUE
TO IMPROPER INSTALLATION (INSTALLATION BY ANYONE OTHER THAN CUBIC OR AS APPROVED BY
CUBIC); (ii) IS DUE TO MISUSE, NEGLECT, FAILURE TO PERFORM PROPER AND REQUIRED MAINTENANCE,
OR ANY USE OTHER THAN IN A TRANSIT APPLICATION BY LICENSEE OR ITS CUSTOMER OR
CONTRACTORS; OR (iii) IS DUE TO ADJUSTMENT, REPAIR OR MODIFICATION BY ANY PERSON OTHER
THAN CUBIC OR AS AUTHORIZED BY CUBIC.
CUBIC DOES NOT WARRANT THAT OPERATION OF THE SOFTWARE WILL BE UNINTERRUPTED OR ERRORFREE;
THAT THE FUNCTIONS CONTAINED IN THE SOFTWARE WILL OPERATE IN ALL COMBINATIONS OR
SEQUENCE; THAT ALL SOFTWARE ERRORS OR DEFECTS FOR WHICH THERE IS A REASONABLE WORKAROUND
WILL BE CORRECTED; OR THAT THE SOFTWARE IS FREE FROM VIRUS AND ALL LATENT
DEFECTS. CUBIC IS NOT RESPONSIBLE FOR PROBLEMS CAUSED BY COMPUTER HARDWARE OR OTHER
COMPUTER OPERATING SYSTEMS WHICH ARE NOT COMPATIBLE WITH THE SYSTEM SPECIFICATIONS
REQUIRED TO RUN THE SOFTWARE AS SET FORTH IN CUBIC’S TECHNICAL DOCUMENTATION, OR FOR
PROBLEMS IN THE INTERACTION OF THE SOFTWARE WITH NON-CUBIC SUPPLIED SOFTWARE OR
EQUIPMENT, THE USE OF WHICH IS NOT APPROVED BY CUBIC.
EXCEPT FOR THE EXPRESS WARRANTIES STATED ABOVE, CUBIC GRANTS NO OTHER WARRANTIES,
EXPRESS OR IMPLIED, INCLUDING ANY IMPLIED WARRANTIES OF MERCHANTABILITY, FITNESS FOR A
PARTICULAR PURPOSE, AND FREEDOM FROM THIRD PARTY INFRINGEMENT CLAIMS.
FOR ANY SOFTWARE WARRANTY CLAIMS, BUYER MUST: (i) LOG A SUPPORT TICKET USING CUBIC’S
ONLINE SUPPORT PORTAL, HTTP://CUBICITS.FRESHDESK.COM; OR (ii) CALL CUSTOMER CARE AT 1-866-
652-5347 TO SPEAK TO A CUSTOMER SERVICE REPRESENTATIVE.