Extended Customer Support Policy

MotionDSP is a product line within Cubic Corporation’s wholly owned subsidiary, Cubic Digital Intelligence, Inc

Last updated July 1st, 2021

This Agreement is between Cubic Digital Intelligence, Inc Technology Inc. and Customer ordering the MotionDSP annual software license. Customer hereby agrees that the following terms and conditions shall govern the delivery of Extended Support Services “Extended Support” by Cubic Digital Intelligence, Inc to Customer under the Extended Support Program with respect to applicable registered Cubic Digital Intelligence, Inc products (“Products”) and where indicated with respect to third-party products and technologies. Subject to Customer’s termination right as set forth in Section 4 below, ordering the annual license indicates Customer’s acceptance of the terms and conditions contained in this Service Agreement. This Service Agreement is effective upon receipt and acceptance of Customer’s order by Cubic Digital Intelligence, Inc or by the authorized reseller from whom the software is purchased (“Commencement Date”).

1. Services.
   1. Cubic Digital Intelligence, Inc will provide Customer the Extended Support Services (“Support Services”) as described herein. Documentation and resources made available via the Customer Support Center (the “Support Site”). Such content on the Support Site, as may be amended from time to time, are deemed to be part of this Service Agreement. The Cubic Digital Intelligence, Inc software products are only eligible for Support Services under annual licenses. Support is not available for all Cubic Digital Intelligence, Inc software products. Support Services will be delivered by a member of Cubic Digital Intelligence, Inc’s technical support team to the Technical Support Contacts during the regional hours of operation as listed on the Customer Support Center Site. Support is delivered in English only.
      
2. Restrictions. Cubic Digital Intelligence, Inc may limit or terminate the Support Services being provided if Customer uses the Support Services in an abusive or fraudulent manner, as determined by Cubic Digital Intelligence, Inc in its reasonable discretion. Cubic Digital Intelligence, Inc Support Engineers will make reasonable efforts to resolve the issue but Cubic Digital Intelligence, Inc cannot guarantee that every issue will be resolved.
3. Exclusions. Cubic Digital Intelligence, Inc shall not be required to provide any Support Services relating to problems or issues arising out of or from (i) Customer’s use of the Products in a manner for which they were not designed; (ii) damage to the media on which the Products are provided or to the computer on which the Products are installed; (iii) Customer’s negligence, misuse, or modification of the Products; (iv) versions of Products that have been discontinued (v) third-party products and technologies not associated with network installation assistance as listed on the Support Site as supported technologies or (vii) conflicts related to replacing or installing hardware, drivers, and software that have not been Cubic Digital Intelligence, Inc certified.
4. Term and Termination.
   1. Absent early termination for the reasons stated herein, this Service Agreement shall have a term that aligns with the subscription term committed to by the customer when purchasing an Annual or Multi-year subscription from Cubic Digital Intelligence, Inc. Term shall run from the Commencement Date of that subscription or one year from the 1st of the following month established by the Commencement Date.
   2. Notwithstanding anything to the contrary herein, these Support Terms may be terminated by Cubic Digital Intelligence, Inc for failure of Customer to pay annual fee upon annual or multi-year subscription renewal, if such failure to pay continues for ten (10) days after Cubic Digital Intelligence, Inc gives Customer written notice of such failure. Cubic Digital Intelligence, Inc may also terminate these Support Terms if Customer materially breaches the terms of these Support Terms and fails to cure such breach within thirty (30) days of written notice thereof, except that a material breach of any license granted to Customer in the terms of use or end user license agreement applicable to the Software End User Licensing Agreement shall be grounds for immediate termination.
   3. Customer acknowledges that Cubic Digital Intelligence, Inc has the right to discontinue the manufacture and development of any of the Software and the Support Services for any Software, including without limitation the distribution of older Software versions, at any time in its sole discretion, provided that Cubic Digital Intelligence, Inc agrees not to discontinue the Support Services for the Software during the current annual term of this Service Agreement, subject to the termination provisions herein. Cubic Digital Intelligence, Inc reserves the right to alter these Support Services from time to time, using reasonable discretion but in no event shall such alterations result in (i) diminished support from the level of support set forth herein; (ii) materially diminished obligations for Cubic Digital Intelligence, Inc; or (iii) materially diminished rights of Customer. Cubic Digital Intelligence, Inc shall provide Customer with thirty (30) days prior written notice of any permitted material changes to these Support Services contemplated herein.
5. Support Activation. All Support Programs for annual or multi-year subscription for MotionDSP software become active 14 days after successful payment in full of annual or multi-year subscription by customer and will remain active throughout (i) the term of the subscription, (ii) until the customer ends the subscription, or (iii) or the customer material breaches any such terms of use or end user license agreement terms, resulting in the cancellation of their service by Cubic Digital Intelligence, Inc.
6. Warranty and Disclaimer. Cubic Digital Intelligence, Inc will use commercially reasonable efforts to provide the Support Services in a professional manner, but Cubic Digital Intelligence, Inc cannot guarantee that every question or problem raised by Customer can or will be resolved. Nothing in this Service Agreement shall be construed as expanding or adding to the warranty for the Software set forth in the Product End User License Agreement or any other agreement with Cubic Digital Intelligence, Inc governing use of the software. EXCEPT FOR ANY WARRANTY, CONDITION, REPRESENTATION, OR TERM TO THE EXTENT TO WHICH THE SAME CANNOT OR MAY NOT BE EXCLUDED OR LIMITED BY LAW APPLICABLE TO CUSTOMER IN ITS JURISDICTION, CUBIC DIGITAL INTELLIGENCE MAKES, AND CUSTOMER RECEIVES, NO WARRANTIES OR CONDITIONS OF ANY KIND, EXPRESS, IMPLIED, OR STATUTORY, RELATED TO OR ARISING IN ANY WAY OUT OF THIS SERVICE AGREEMENT OR THE PROVISION OF MATERIALS OR SERVICES UNDER THIS SERVICE AGREEMENT. CUBIC DIGITAL INTELLIGENCE SPECIFICALLY DISCLAIMS ANY IMPLIED WARRANTY OF MERCHANTABILITY OR FITNESS FOR A PARTICULAR PURPOSE.
7. LIMITATION OF LIABILITY. CUBIC DIGITAL INTELLIGENCE’S LIABILITY UNDER THIS SERVICE AGREEMENT IS LIMITED TO THE AMOUNTS PAID BY CUSTOMER FOR THE SUPPORT SERVICES ORDERED BY CUSTOMER. IN NO EVENT SHALL CUBIC DIGITAL INTELLIGENCE, INC. HAVE ANY LIABILITY FOR ANY SPECIAL, PUNITIVE, INDIRECT, OR CONSEQUENTIAL DAMAGES, INCLUDING, WITHOUT LIMITATION, DAMAGES FOR LOST PROFITS, LOSS OF DATA, COSTS OF PROCUREMENT OF SUBSTITUTE GOODS OR SERVICES, LOSS OF USE OF EQUIPMENT OR FACILITIES, OR INTERRUPTION OF BUSINESS, ARISING IN ANY WAY OUT OF THIS SERVICE AGREEMENT UNDER ANY THEORY OF LIABILITY, WHETHER OR NOT CUBIC DIGITAL INTELLIGENCE, INC. HAS BEEN ADVISED OF THE POSSIBILITY OF SUCH DAMAGES. THESE LIMITATIONS SHALL APPLY NOTWITHSTANDING THE FAILURE OF THE ESSENTIAL PURPOSE OF ANY LIMITED REMEDY.
8. Additions. Any additional services added to this Service Agreement by written notice to Customer will be governed by the terms of this Service Agreement.
9. General. This Service Agreement may not be assigned by Customer. Any assignment in violation of the foregoing shall be null and void. This Service Agreement supersede all other written and oral proposals, purchase orders, prior agreements, and other communications between Customer and Cubic Digital Intelligence, Inc concerning the subject matter hereof and constitutes the entire agreement between Cubic Digital Intelligence, Inc and Customer regarding provision of Support Services. If Customer is a resident of the United States, Mexico, or Canada then (i) this Service Agreement shall be governed by the laws of the State of California without reference to conflict of law principles; and (ii) Customer consents to the personal jurisdiction of the state and federal courts located in Santa Clara County, California. If Customer is a resident of any other country, then (i) this Service Agreement shall be governed by the laws of the Republic of Ireland without reference to conflict of law principles, as such laws are applied to agreements entered into and to be performed entirely within the Republic of Ireland between residents of the Republic of Ireland; and (ii) Customer consents to the personal jurisdiction of the courts located in Courts of Ireland in Dublin, Ireland for all disputes relating to this Service Agreement. If any action at law or in equity is necessary to enforce the terms of this Service Agreement, the prevailing party shall be entitled to reasonable attorney’s fees, costs and expenses in addition to any other relief to which such prevailing party may be entitled. Sections 8, 9 and 10 shall survive expiration or earlier termination of this Service Agreement for any reason.