COBUS 3000 with air conditioning in driver's and passengers' cabin
GTC
General Terms and Conditions for the Sale of Brand-new Motor Vehicles
(Version of 04/2019)
Preamble
The following terms and conditions apply to the offer and sale of brand-new motor vehicles from the seller (COBUS INDUSTRIES GmbH) to the buyer, if the buyer is an entrepreneur for whom the purchase belongs to the operation of its company, or a legal entity under public law or a special fund under public law.
1. Validity of the conditions / written form
1.1 These terms and conditions shall apply to all services, including future services, provided within the framework of an ongoing and intended business relationship, even if these terms and conditions are no longer expressly agreed with regard to a specific service. Other provisions, including but not limited to the buyer’s terms and conditions of business or purchase, shall not become part of the contract, even if the seller has not expressly objected to them.
1.2 Individual agreements made with the buyer in individual cases (including collateral agreements, supplements and amendments) shall in any case take precedence over these terms and conditions. Subject to proof to the contrary, the content of such agreements shall be governed by a written contract or written confirmation by the seller.
1.3 Legally relevant declarations and notifications of the buyer with regard to the contract (e.g. setting of a deadline, notification of defects, withdrawal or reduction) must be made in writing, i.e. in written or text form (e.g. letter, e-mail, fax). Legal formal requirements and further evidence, in particular in cases of doubt as to the legitimacy of the declarant, remain unaffected.
2. Offer and conclusion of contract / transfer of rights and obligations of the buyer
2.1 The offers of the seller are subject to confirmation and non-binding. The order of the object of purchase by the buyer is considered as a binding contractual offer. Unless otherwise stated in the order, the seller shall be entitled to accept this contractual offer within one week of its receipt.
2.2 The acceptance can be declared either in writing (e.g. by order confirmation) or by delivery of the object of purchase to the buyer.
2.3 The sales representatives of the seller are not authorised to represent the seller in legal transactions.
2.4 Transfers of rights and obligations of the buyer from this contract require the written consent of the seller.
3. Prices
Unless otherwise stated, the seller shall be bound by the prices contained in his offer for 30 days from the date thereof. The prices are understood to be net prices in EURO ex works plus packaging, the statutory value added tax, transfer costs for export deliveries, customs duties as well as fees and other public charges. Additional deliveries and services (e.g. transfer costs) shall be invoiced separately unless otherwise agreed.
4. Payment / default
4.1 The purchase price and prices for ancillary services shall be due for payment upon delivery of the object of purchase, but no later than 8 days after receipt of the notification of readiness for delivery and delivery or dispatch of the invoice.
4.2 If partial payments have been agreed, the entire remaining debt shall become due for payment immediately, irrespective of the due date of any bills of exchange, if the buyer is in arrears with 2 consecutive instalments in whole or in part, or if the buyer suspends his payments or if composition or insolvency proceedings have been applied for against his assets.
4.3 Money orders, cheques, bills of exchange and assignments of claims shall only be accepted after special agreement and only on account of payment, including all collection and discount charges.
4.4 The buyer can only assert rights of set-off and retention if the counterclaim of the buyer is undisputed or a legally binding title exists.
4.5 If the buyer is in arrears with the payment, if partial payments with 2 successive instalments are agreed, the seller can withdraw from the contract after setting a reasonable grace period and claim damages for non-performance.
5. Delivery / delay in delivery
5.1 The delivery dates or delivery periods, which may be agreed as binding or non-binding, must be stated in writing. Delivery periods begin with the conclusion of the contract. If subsequent changes are agreed, a new delivery date or delivery period shall also be agreed if necessary.
5.2 6 weeks after a non-binding delivery date or a non-binding delivery period has been exceeded, the buyer may request the seller in writing to deliver within a reasonable period of time. This period is reduced to 2 weeks for vehicles which are available at the seller. Upon receipt of the request, the seller shall be in default. In addition to delivery, the buyer can only demand compensation for damage caused by delay if the seller is guilty of intent or gross negligence. In the event of default, the buyer may also set the seller a reasonable grace period in writing, stating that it will refuse acceptance of the object of purchase after expiry of the grace period. After unsuccessful expiration of the grace period, the buyer is entitled to withdraw from the purchase contract by written declaration and in case of intent or gross negligence to claim damages for non-performance. The claim to delivery is excluded in this case.
5.3 If a binding delivery date or a binding delivery period is exceeded, the seller shall be in default as soon as the delivery date or the delivery period is exceeded. The buyer’s rights shall then be determined in accordance with the third sentence et seq. of Section 5.2.
5.4 The seller shall not be responsible for delays in delivery and performance due to force majeure and due to events which make delivery considerably more difficult or impossible for the seller not only temporarily – this includes in particular strikes, lock-outs, official orders, etc., even if they occur at the seller’s suppliers or their sub-suppliers – even in the case of bindingly agreed deadlines and dates. They entitle the seller to postpone the delivery or service for the duration of the hindrance plus a reasonable start-up period, or to withdraw from the contract in whole or in part because of the part not yet fulfilled. If the hindrance lasts longer than 6 weeks, the buyer is entitled, after setting a reasonable grace period, to withdraw from the contract with regard to the part not yet fulfilled. If the delivery time is extended or if the seller is released from his obligation, the buyer cannot derive any claims for damages from this. The seller can only invoke the aforementioned circumstances if he notifies the buyer immediately.
5.5 The seller reserves the right to make changes to the design or shape, deviations in colour and changes to the scope of delivery during the delivery period, provided that the object of purchase is not significantly changed and the change is reasonable for the buyer.
5.6 Information contained in descriptions of the scope of delivery, appearance, performance, dimensions and weights, consumption of operating materials, operating costs, etc. of the object of purchase that are valid at the time of conclusion of the contract shall form part of the contract; they shall be regarded as approximate and do not constitute warranted characteristics, but shall serve as a yardstick for determining whether the object of purchase is free from defects in accordance with Section 8.1, unless an expressed warranty is given in accordance with Section 1.2. If the seller uses signs or numbers to designate the order or the object of purchase ordered, no rights can be derived from this alone.
6. Acceptance
6.1 The buyer has the right to inspect the object of purchase at the agreed place of acceptance within 8 days of receipt of the notification of readiness and the obligation to accept the object of purchase within this period. If the buyer is in default of acceptance, fails to cooperate or if delivery is delayed for other reasons for which the buyer is responsible, the seller shall be entitled to claim compensation for the resulting damage including additional expenses (e.g. storage costs). For this purpose, the seller shall be entitled to charge a flat-rate compensation amounting to 0.1% of the net price per calendar day from the occurrence of the delay, but not exceeding 2% of the net price, plus any value added tax. The proof of a higher damage and the legal claims of the seller (including but not limited to reimbursement of additional expenses, appropriate compensation, termination) remain unaffected; however, the flat rate is to be set off against further monetary claims. The buyer shall be entitled to prove that the seller has incurred no damage at all or only considerably less damage than the above flat rate.
6.2 If the buyer remains in arrears with the acceptance of the object of purchase for longer than 14 days from receipt of the notification of readiness, the seller is entitled, after setting a grace period of 14 days, to withdraw from the contract and claim damages for non-performance.
6.3 The setting of a grace period is not necessary if the buyer seriously and finally refuses acceptance or is obviously unable to pay the purchase price within this period.
6.4 If the seller demands compensation, this amounts to 10% of the purchase price. The compensation shall be set higher or lower if the seller proves a higher damage or the buyer proves that a lower damage or no damage at all has occurred.
7. Retention of title
7.1 The object of purchase shall remain the property of the seller until settlement of the claims to which the seller is entitled on the basis of the purchase contract. The retention of title also applies to the claims which the seller has against the buyer from his current business relations.
7.2 For the duration of the retention of title, the buyer shall be entitled to possess and use the object of purchase as long as he meets his obligations under the retention of title in accordance with the following provisions of this section and is not in default of payment. In the event of breach of contract by the buyer, including but not limited to default in payment, the seller shall be entitled to withdraw from the contract and demand the return of the object of purchase, as well as to claim damages.
7.3 As long as the retention of title exists, a sale, pledging, transfer by way of security, leasing or any other transfer of the object of purchase as well as its modification which impairs the security of the seller is only permissible with the prior written consent of the seller.
7.4 In the event of seizure by third parties, in particular in the event of seizure of the object of purchase or the exercise of the entrepreneurial lien of a workshop, the buyer must notify the seller immediately in writing and inform the third party immediately of the seller’s retention of title. The buyer shall bear all costs which must be incurred for the cancellation of the seizure and for the recovery of the object of purchase, insofar as they cannot be collected from third parties.
7.5 For the duration of the retention of title, the buyer shall take out insurance with an appropriate deductible, subject to the proviso that the rights arising from the insurance contract shall accrue to the seller. If the buyer fails to comply with this obligation, the seller may take out the insurance himself at the buyer’s expense, disburse the premium amounts and collect them as part of the claim under the purchase contract. Unless otherwise agreed, the insurance benefit shall be used in full for the repair of the object of purchase. If, in the case of serious damage, repair is waived with the consent of the seller, the insurance benefit shall be used to repay the purchase price and the prices for ancillary services of the seller.
7.6 The buyer is obliged to keep the object of purchase in proper condition for the duration of the retention of title, to have all maintenance work and necessary repairs planned by the manufacturer carried out without delay – apart from emergencies – by the seller or by a workshop recognised by the seller for servicing the object of purchase.
8. Warranty
8.1 The seller warrants that the goods will be free from defects in accordance with the general rules of technology of the type of the object of purchase for 24 months from the transfer of risk in accordance with the provisions of this section.
8.2 The buyer is entitled to the removal of defects and damages caused by them to other parts of the object of purchase (repair). The following applies to the settlement:
a) The buyer may assert the claims with the seller or with companies recognised by the seller for servicing the object of purchase. The buyer must either notify the relevant company of any defects in writing or have them recorded by it immediately after they have been discovered.
b) Repairs must be carried out immediately in accordance with the technical requirements by replacing or repairing defective parts without charging the necessary wage, material and freight costs. Replaced parts become the property of the seller. If the repair necessitates additional maintenance work prescribed by the manufacturer, the seller shall bear the costs thereof, including the costs of the materials and lubricants required.
c) For the parts installed during the repair, a warranty is provided until the end of the warranty period for the object of purchase on the basis of the purchase contract.
d) If the object of purchase becomes inoperable due to a defect covered by warranty, the buyer shall immediately contact the seller, who shall then determine whether the seller himself has the defect remedied by one of his technicians or whether the seller shall refer the buyer to a company recognised by the seller for servicing the object of purchase.
e) The seller is entitled to exchanged spare parts. At the seller’s request and expense, they shall be sent to the seller or stored until they are released for recycling.
8.3 If the defect cannot be remedied, or if the seller wrongly refuses to remedy the defect or if further attempts at repair are unacceptable to the buyer, the buyer may demand a reduction in payment instead of repair or withdraw from the contract. A claim for replacement delivery does not exist.
8.4 Warranty obligations are not affected by a change of ownership of the object of purchase.
8.5 Warranty obligations do not exist if the error that occurred is causally connected with the fact that
a) the buyer has not reported a defect in accordance with Section 8.2 letter a) and has immediately given the seller the opportunity to remedy the defect;
b) the object of purchase has been improperly handled or overstressed or
the object of purchase has previously been repaired, serviced or maintained in an operation c) not recognised by the seller for servicing and the buyer had to recognise this or
c) parts have been incorporated into the object of purchase whose use has not been approved by the seller, or the object of purchase has been altered in a manner not approved by the seller, or
d) the buyer has not followed the seller’s or manufacturer’s instructions regarding the handling, maintenance and care of the object of purchase (e.g. operating instructions).
8.6 Liability for normal wear and tear is excluded.
8.7 All claims for defects shall become statute-barred upon expiry of the warranty period in accordance with Section 8.1. For defects asserted but not eliminated within the warranty period, warranty shall be given until the defect has been eliminated; the limitation period for this defect shall be suspended for this period. In such cases, however, it shall end 3 months after the seller has declared that the defect has been rectified or that there is no defect.
9. Liability
9.1 Claims for damages are excluded regardless of the type of breach of duty, including unlawful acts, unless intentional or grossly negligent action or the conditions specified in the following paragraph 2 are present.
9.2 In the event of a breach of material contractual obligations (obligations the fulfilment of which is essential for the proper performance of the contract and on the observance of which the contractual partner regularly relies and may rely), the seller shall be liable for any negligence, but only up to the amount of the foreseeable damage.
9.3 The limitations of liability and exclusions in paragraphs 1 and 2 shall not apply to claims which have arisen due to fraudulent conduct on the part of the seller as well as in the case of liability for guaranteed characteristics, for claims under the Product Liability Act as well as damages arising from injury to life, limb or health.
9.4 Insofar as the seller’s liability is excluded or limited, this shall also apply to the seller’s employees, workers, representatives and vicarious agents.
9.5 The COBUS airport bus is subject to constant technical changes and adaptations in accordance with the legal and technical requirements of the European Union. It is the buyer’s responsibility to check before conclusion of the contract whether national regulations are applicable at the place of operation of the COBUS airport bus planned by it which go beyond the legal and/or technical requirements of the European Union and to inform the seller immediately of any need for adjustment. The seller will then examine whether such an adjustment is actually possible and economically feasible. Any technical or legal adjustment shall be reflected in a reasonable adjustment of the purchase price. The seller assumes no liability or responsibility for the operation of the COBUS airport buses and compliance with national regulations that go beyond the requirements of the European Union and are not part of the contract concluded with the buyer.
10 General provisions
10.1 Place of performance is the registered office of the seller.
10.2 These terms and conditions and the entire legal relationship between the seller and the buyer shall be governed by the laws of the Federal Republic of Germany and our “Code of Ethics” in the version valid at the time of conclusion of the contract published at www.cobus-industries.de. Uniform law, including but not limited to the provisions of the UN Convention on Contracts for the International Sale of Goods, shall not apply.
10.3 If the buyer is a merchant, a legal entity under public law or a special fund under public law, Wiesbaden shall be the exclusive place of jurisdiction for all disputes arising directly or indirectly from the contractual relationship. However, the seller is also entitled to sue at the buyer’s place of business.
General Terms and Conditions
(Version of 02/2025)
1. Entire Agreement. These General Terms and Conditions, together with the sales or purchase order attached hereto (the “Order”, and collectively with these General Terms and Conditions, the “Terms and Conditions”), shall be the exclusive agreement between COBUS LLC, a Delaware limited liability company (“Cobus”), and the buyer identified on the Order (“Buyer”) with respect to all vehicles and associated products and ancillary services provided pursuant to the Order (collectively, “Vehicle(s)”). To the extent that anything in the attached Order conflicts with these General Terms and Conditions, these General Terms and Conditions control unless such conflicting terms were expressly authorized by an officer of Cobus in writing. Notwithstanding the foregoing, to the extent that the Order references or incorporates by reference any of Buyer’s terms and conditions, such terms and conditions are expressly rejected by Cobus, shall be ineffective and shall not be binding upon Cobus, and shall not be deemed part of these Terms and Conditions. Any terms that dissent from or are in addition to these Terms and Conditions, whether provided by Buyer or contained in any oral or written supplement, agreement, or understanding between the parties, are expressly rejected by Cobus and shall be ineffective and shall not be binding upon Cobus. Any action by Buyer in furtherance of a sale or purchase of any Vehicle shall constitute acceptance of these Terms and Conditions. These Terms and Conditions shall apply to all future purchase and/or sales orders between Cobus and Buyer, whether or not these Terms and Conditions are attached thereto, and shall govern all future communications, writings, and transactions between Cobus and Buyer.
2. Acceptance of Order. The Order shall be subject to acceptance by Cobus in its sole discretion. Cobus shall indicate its acceptance of the Order by providing written acceptance of the same. In the absence of any written acceptance of the Order, shipment of goods ordered shall be deemed acceptance of the Order.
3. Price. The purchase price for each Vehicle shall be the price shown on the Order that has been accepted by Cobus pursuant to Section 2.
4. Payment. Cobus shall invoice Buyer for all amounts owed hereunder. Payment for the full amount of each invoice shall be made to Cobus, addressed as indicated on an invoice, in United States currency. Payment milestones shall be defined subject to their acceptance by Cobus. If the Buyer and COBUS cannot agree on any such payment milestones payment shall be made as follows: (i) Thirty percent (30%) (“Initial Payment”) of the total Order value immediately upon acceptance of the Order by Cobus; and (ii) seventy percent (70%) (“Final Payment”) contemporaneously with the delivery of the Vehicle and transfer of Vehicle title document to Buyer. Buyer shall not offset or deduct any amounts owed from Cobus to Buyer from its payment amounts. Time is of the essence with respect to all of Buyer’s payment obligations hereunder. All past due amounts owed from Buyer to Cobus shall accrue interest from the due date at one and one-half percent (1.5%) or the interest rate as determined by applicable law, whichever is higher. In addition to all other rights and remedies of Cobus set forth herein or under applicable law, in the event that Buyer fails to make any payment when due, Cobus shall have the right (i) to decline to make any further deliveries pursuant to the Order until all outstanding amounts (including all interest) are paid by Buyer in full, and/or (ii) to offset any and all outstanding payment obligations or other indebtedness of Buyer to Cobus against any outstanding payment obligations or other indebtedness that Cobus or any of its affiliates may owe Buyer. Buyer shall reimburse Cobus for any and all costs and expenses, including reasonable attorneys’ fees, incurred by Cobus in the collection of any sum payable by Buyer to Cobus.
5. Taxes and Duties. To the extent applicable, Buyer shall submit to Cobus a properly completed sales tax exemption certificate or a direct payment permit certificate (“Certificate”) with respect to any taxes or duties for which Buyer claims it is exempt. If Buyer fails to convey the Certificate upon placement of the Order, any applicable sales or equivalent tax shall be added to the Price of the Vehicle. To the extent that such exemption certificate or direct payment permit certificate is disallowed or rejected by the applicable governmental or taxing authority, Buyer shall be responsible for the payment of any such applicable tax or duties. Buyer shall immediately reimburse Cobus for any taxes or duties paid by Cobus on Buyer’s behalf.
6. Delivery. All Vehicles ordered pursuant to these Terms and Conditions shall be delivered to Buyer on a Delivery Duty Paid (DDP) basis (Incoterms 2020) (“Delivery”) to Buyer’s designated airport facility (“Delivery Site”). Cobus will make commercially reasonable efforts to meet specified delivery or performance dates; provided however, that all such dates are estimates only and shall not be binding upon Cobus. Delays in delivery or performance by Cobus shall not entitle Buyer to cancel any order, refuse any items, or claim any damages. Cobus expressly reserves the right to deliver the Vehicles in parts, and Buyer consents to the same. Delay in delivery of a part shall not relieve Buyer of its obligation to accept any remaining deliveries. If any Vehicle is manufactured, Cobus so shall advise Buyer and invite Buyer to perform the Pre-Delivery Inspection as set forth in Section 7 below by written notice. Buyer can then proceed to inspect the Vehicle at Cobus’ manufacturing site in Vila Nova de Gaia, Portugal, (“Manufacturing Site”) within fourteen (14) days of receipt of such notice, all as set forth in Section 7 herein below. After the Pre-Delivery Inspection has been performed, Cobus shall (i) deliver the Vehicle to the Delivery Site or (ii) correct any defects noted in the course of the Pre-Delivery Inspection, as the case may require, and then proceed with Delivery to the Delivery Site. Upon delivery of the Vehicle to the Delivery Site, Buyer shall, within fourteen (14) days of delivery, perform the Final Inspection as set forth in Section 7 below. If and in case Buyer should fail to perform the Pre-Delivery Inspection within thirty (30) days after receipt of notice, the Initial Payment shall be deemed forfeited and Cobus may retain the Vehicle so ordered, and proceed as it sees fit. If and in case Buyer should fail to perform the Final Inspection within thirty (30) days after receipt of notice, the Initial Payment shall be deemed forfeited and Cobus may remove the Vehicle from the Delivery Site and retain the Vehicle so ordered and proceed as it sees fit, provided further that the Buyer shall be liable for any transportation cost of the Vehicle to and from the Manufacturing Site to the Delivery Site and all ancillary expenses related thereto.]If Cobus deems it necessary to store any Vehicles due to Buyer’s failure to accept delivery of such Vehicles or any other delay caused by Buyer, Cobus may store such Vehicles at Buyer’s sole expense, and Buyer shall reimburse Cobus for any such expenses. In addition to the foregoing, Cobus shall retain all rights provided under applicable law for breach of contract, direct and incidental, and other applicable legal remedies to seek damages.
7. Inspections. Buyer can initially inspect all Vehicles supplied hereunder at the Cobus Manufacturing Site upon receipt of written notice by Cobus pursuant to the Pre-Delivery Inspection protocol (PDI Certificate) provided by Cobus. Upon delivery of the Vehicle at the Delivery Site, Buyer shall inspect the Vehicles pursuant to the final inspection protocol (“Final Acceptance Certificate”). Any Initial or Final Inspection, respectively, shall constitute acceptance of the Vehicle(s) by Buyer in any and all respects except for those deficiencies or defects noted in the respective inspection protocol in writing, provided that the foregoing shall not be applicable to any defects or deficiencies that the Initial or Final Inspection could reasonably not have revealed. Nothing herein shall permit Buyer to retain payments due to Cobus.
8. Title and Risk of Loss. Title to and risk of loss of all Vehicles supplied pursuant to these Terms and Conditions shall transfer to Buyer at the Delivery Site upon payment in full of the Price.
9. Force Majeure. Cobus shall not be responsible for delays in delivery or performance due to any cause beyond its reasonable control, including without limitation: (a) acts of God, fires, storms, floods, strikes, lockouts, accidents, acts of war or terrorism, strikes, labor shortages, riots, civil commotion, embargoes; (b) any regulation, law, order or restriction of any governmental department, commission, board, bureau, agency, court, or other similar government instrumentality; (c) inability of Cobus to obtain any required raw material, energy source, supplies, equipment, labor, or transportation, at prices and on terms Cobus deems in its sole discretion to be commercially reasonable, or (d) epidemics, pandemics (including COVID-19) (each, a “Force Majeure Event”). Without limiting the generality of the foregoing, under no circumstances shall Cobus be obligated to purchase vehicles from a third party for delivery to Buyer in the event of a Force Majeure Event. Cobus may allocate its available supply of Vehicle, and its raw materials and other resources, among its customers, itself, and its affiliates on such basis Cobus deems fair and reasonable if Cobus is unable, for any reason, to supply the quantities of Vehicle contemplated by the Order.
10. Buyer‘s Agreement to Defend. If any Vehicle(s) (i) sold or supplied to Buyer by Cobus are not maintained and/or operated in accordance with applicable operating procedures applicable at the Delivery Site or other recommended procedures or (ii) if any Vehicle(s) are sold or supplied to Buyer by Cobus according to Buyer‘s individual vehicle specifications, requirements or instructions, Buyer agrees to defend, protect and save Cobus harmless against all suits at law or in equity and from all costs and suit, legal fees and expenses, damages, claims and demands arising out of or awarded in connection with the sale, use or operation of the respective Vehicle(s).
11. Notice of Accident or Malfunction. Buyer shall notify Cobus promptly and in any event within five (5) days of any accident or malfunction involving any Vehicles which result in personal injury or damage to property and shall cooperate fully with Cobus in investigating and determining the cause of such accident or malfunction. In the event that Buyer fails to give such notice to Cobus and to so cooperate, Buyer agrees to protect, defend and save Cobus harmless as provided herein.
12. Compliance with Laws; Export Controls. Buyer shall comply with all applicable laws, statutes, ordinances and regulations of any federal, state, or local governmental authority having jurisdiction thereover, including, without limitation, the Foreign Corrupt Practices Act, the anti-money laundering provisions of the USA Patriot Act and Bank Secrecy Act, International Traffic in Arms Regulations (ITAR) and United States export control laws. Buyer shall not export or re-export any Vehicles purchased hereunder to any person or entity that is a “denied party” under the Denied Parties List (or any similar list maintained by any governmental authority) or to entities or persons located within embargoed countries (in both cases as defined under the referenced export control laws).
13. LIMITED WARRANTY. Cobus warrants solely to Buyer that the Vehicles sold hereunder shall conform to Cobus’s “COBUS Warranty Conditions” (“Standard Warranty”) attached to these terms applicable to the Vehicle at the time of manufacture. COBUS MAKES NO OTHER WARRANTY OR GUARANTEE OF ANY KIND, EXPRESS OR IMPLIED, INCLUDING WITHOUT LIMITATION IMPLIED WARRANTIES OF FITNESS FOR A PARTICULAR PURPOSE OR MERCHANTABILITY, ALL OF WHICH ARE EXPRESSLY DISCLAIMED BY COBUS. Buyer assumes full responsibility for quality control, testing and determination of suitability of each Vehicle for its intended application or use. Any and all claims for breach of warranty hereunder shall be made by Buyer during the Warranty Period by providing written notice to Cobus of the same. Warranty claims not made by Buyer during the Warranty Period pursuant to this Section 12 shall be deemed waived by Buyer. For the purposes of these Terms and Conditions, the “Warranty Period” shall mean the period set forth in the Standard Warranty. Buyer shall refrain from making any warranties, promises, direct or implied specifications relating to any Vehicle(s) to third parties except those set forth in the Standard Warranty. Buyer specifically acknowledges that the Vehicles are not suitable for public road transportation purposes.
14. LIMITATION ON LIABILITY. IN NO EVENT SHALL THE LIABILITY OF COBUS TO BUYER, WHETHER BASED IN CONTRACT, IN TORT OR OTHERWISE, EXCEED THE PRICE OF THE VEHICLES WITH RESPECT TO WHICH COBUS’S LIABILITY IS CLAIMED, AND IN NO EVENT WILL COBUS BE LIABLE TO BUYER FOR ANY SPECIAL, INDIRECT, INCIDENTAL OR CONSEQUENTIAL DAMAGES OF ANY NATURE, WHETHER BASED IN CONTRACT, IN TORT OR OTHERWISE, THAT ARISE IN CONNECTION WITH THE VEHICLES OR IN CONNECTION WITH EITHER COBUS’S FAILURE TO DELIVER OR ITS LATE DELIVERY OF THE VEHICLES (INCLUDING, BUT NOT LIMITED TO, LOSS OF USE OF THE VEHICLES AND LOSS OF PROFITS). Buyer acknowledges that the remedies provided herein are exclusive and in lieu of all other remedies available to Buyer at law or in equity.
15. License Grant. In consideration of payment of the fees invoiced to Buyer, and provided that the first 24 months of the Delivery Site such fees shall be deemed to be paid in full, Cobus hereby grants to Buyer, and Buyer hereby accepts, a nonexclusive, personal and limited license to use the Software only as authorized herein. The term “Software” shall mean such operating software embodied in or necessary to electronically monitor or diagnose Vehicle data as supplied by Cobus. The Software, including all data or images incorporated in or generated by the Software, are licensed (not sold) to Buyer. By the license granted hereunder, Buyer acknowledges that Cobus does not transfer title to or any of Cobus’s right in the Software to Buyer, and under no circumstances shall the transaction contemplated hereby be considered a “sale” of the Software or of any portion thereof. Cobus retains full and complete right and title to the Software and all intellectual and industrial property rights therein, subject only to a limited right of use granted to Buyer hereunder, which right of use may be revoked in accordance with the terms hereof. Buyer is hereby permitted to use the Software., or in the event of the inoperability of such computer, on a backup computer selected by Buyer. Neither the concurrent use on two or more computers nor the use in a local area network or other network of the Software is permitted without separate written authorization by Cobus and the payment of additional license fees. Buyer may, upon loading the Software into Buyer’s computer, retain the software CD for backup purposes. In addition, Buyer may make one copy of the Software for the purpose of backup in the event the original Software CD is damaged or destroyed. Buyer may also make one copy of the User’s Manual for backup purposes. Any such copies of the Software or the User’s Manual shall include Cobus’s copyright and other proprietary rights notices. Except as authorized under this paragraph, no copies of the Software or any portions thereof may be made by Buyer or any person under Buyer’s authority or control.
16. Software Restrictions. Buyer acknowledges and agrees that the Software contains copyrighted material, trademarks, trade secrets and other proprietary material of Cobus protected under applicable intellectual property laws. Buyer agrees that, except as provided for herein, Buyer will not copy, modify, network, rent, lease or otherwise distribute the Software; or make the Software available by “bulletin boards,” on line services, remote dial in, or network or telecommunications link of any kind; or create derivative works or any other works that are based upon or derived, in whole or in part, from the Software or the accompanying user documentation. Buyer agrees not to assign, sublicense, transfer, pledge, or otherwise share the rights granted to Buyer hereunder. Buyer agrees further not to re sell, decompile, reverse engineer, disassemble, translate or otherwise reduce the Software to a human perceivable form.
17. Waiver of Rights. BUYER’S FAILURE TO COMMENCE ANY CAUSE OF ACTION RELATED TO THE VEHICLE OR OTHERWISE ARISING UNDER THE CONTRACT WITHIN ONE (1) YEAR AFTER THE DATE OF DELIVERY SHALL CONSTITUTE A WAIVER BY BUYER OF ANY OTHERWISE APPLICABLE STATUTE OF LIMITATIONS AND FOREVER BAR ALL RIGHTS TO COMMENCE ANY CAUSE OF ACTION WITH RESPECT THERETO.
18. Security. If at any time the financial responsibility of Buyer, or the credit risk involved, shall become unsatisfactory to Cobus in Cobus’s sole discretion, Cobus shall have the option to require Buyer to provide cash or security that is reasonably satisfactory to Cobus prior to subsequent shipments or deliveries hereunder. The election by Cobus to require such cash or security shall not affect the obligation of Buyer to take and pay for the Vehicle. Cobus may further, at any time, require the Buyer to enter into a purchase money security agreement to secure the purchase price of Vehicles delivered hereunder and the Buyer shall execute all required documents in that regard at Cobus’s request.
19. Changes; Cancellations. Buyer shall not be permitted to change or cancel any order without the express written consent of Cobus.
20. No Assignment. Buyer shall not assign all or any portion of these Terms and Conditions without Cobus’s prior written consent. These Terms and Conditions shall bind and inure to the benefit of the successors and permitted assigns of the respective parties.
21. Miscellaneous Provisions. These Terms and Conditions shall be governed by the laws of the State of Georgia, USA, excluding its conflict of laws principles. The parties agree, consent, and waive contest to the exclusive jurisdiction and venue of the federal or state courts of Georgia for all disputes arising out of or relating to these Terms and Conditions. The United Nations Convention on Contracts for the International Sale of Goods and the United Nations Convention on the Limitation Period in the International Sale of Goods, as amended, shall not apply to these Terms and Conditions. Failure of either party to exercise any right it has under the Terms and Conditions on one occasion shall not operate or be construed as a waiver by such party of its right to exercise the same right on another occasion or any other rights it has. Except as otherwise described herein, any such waiver must be in a writing signed by the waiving party. If any provision of these Terms and Conditions shall be adjudicated to be invalid or unenforceable, it is the parties’ intent that the remaining provisions of these Terms and Conditions will remain in full force and effect, and the affected provision or portion thereof will be deemed modified so that it is enforceable to the maximum extent permissible to reflect as closely as possible the intentions of the parties as evidenced from the provisions of these Terms and Conditions. The section headings used herein are intended for convenience of reference only and shall not be considered in interpreting these Terms and Conditions. Nothing herein shall be construed as creating any direct or beneficial right in or on behalf of any third party.