|Rand McNally TND™ 765
|Electronic Driver Logs (HOS compliance) and Vehicle Inspection Reporting via Rand McNally Connect Portal.||$19.95|
|Rand McNally TND™ 765 Basic Plan||EOBR Plan + Mapping, messaging and integration via Rand McNally Connect Portal.||$29.95|
Term and Conditions for Use of
The Rand McNally TND™760/765 Fleet Edition
1. Definitions. Capitalized terms used in these Terms and Conditions shall have the following meanings:
a. "Accessories" shall mean any hardware or parts used by, on or within the Device.
b. "Activation Date" means the date on which the Device purchased by the Customer is activated by purchasing a subscription to the Service.
c. "Customer" means the individual utilizing the Device and/ or whose Service account is set up in Customer's name.
d. "Device" or "Devices" means the Rand McNally TND™760/765 Fleet Edition unit(s) purchased and/or operated by Customer.
f. "Service Term" means the time period commencing on the Activation Date until termination of the Service, as described in the Service Plan Terms, subject to Section 10 of these Terms & Conditions.
g. "Service" or "Services" means the applicable Service Plan product(s) purchased by Customer, including, but not limited to, activation services for the Device, to be accessed through Rand McNally's web portal.
h. "Service Plan" shall mean the wireless plan, describing the features forming a part of the bundle purchased by Customer as part of the Services.
i. "Service Plan Terms" shall mean the terms and conditions regarding the Service Plan accepted by Customer when purchasing the Services.
j. "Software" means all of the contents of the files, disk(s), or other media contained in the Device, including but not limited to all Rand McNally and/or third-party computer-related intellectual property, or software included by Rand McNally with the Device, related explanatory written materials or files ("Documentation"), fonts, interfaces, content, upgrades, modified versions, updates, and additions to the Software, and may include content in back-end databases accessible through Rand McNally's web portal.
a. Ownership; License. The Software is licensed, and not sold, to Customer by Rand McNally for use only under these Terms & Conditions. Rand McNally expressly retains ownership and title of the Software and reserves all rights not expressly granted to Customer. Subject to these Terms & Conditions, Customer is granted a limited non-exclusive, non-transferable, revocable license to use the Software in conjunction with the Device, solely for the Customer's internal business purposes. Customer's termination of the Services will result in immediate termination of this license.
b. Usage. Access to the Software is provided to Customer for use by Customer for Customer's internal operations in furtherance of Customer's business and for no other purpose. This license to access the Software is not assignable or transferable by Customer. Customer's access to the Software is limited to the purpose for which it was designed, intended, and as set forth in these Terms & Conditions. Customer may not and agrees not to, or to enable others to, customize or extend the functionality of the Software, otherwise alter, modify or translate the Software, or copy, reverse engineer, decompile, disassemble or otherwise attempt to discover the source code, and/ or modify or create derivative works of the Software.
c. Updates. Rand McNally may provide periodic updates to the Software. Customer acknowledges that any obligation Rand McNally may have to support the previous versions of the Software may be ended after the complete transition to the updated version.
d. Third-Party Applications. Customer acknowledges that Rand McNally may incorporate third-party applications and data into its Software for use in connection with the Device. The third-party applications may require Customer to accept additional terms and conditions. By using the third-party applications in connection with the Device, Customer agrees to the applicable terms of service of that third-party application.
a. Website Access. Customer shall have access to Rand McNally's web portal and web-based applications used in connection with the Device (the "Website"). The Website will be available for Customer, under these Terms & Conditions, 24 hours a day, 7 days a week, 365 days a year, except for excused or scheduled maintenance periods, or for downtime due to a failure outside of Rand McNally's realm of reasonable control. Customer's access to and use of the Website may be governed by separate terms and conditions. If Customer accesses the Website by a wireless internet connection, Customer shall be solely responsible for any unauthorized use of the Website.
b. Service. Pursuant to these Terms & Conditions, Customer will receive the Services described in the Service Plan purchased by Customer.
4. Customer Obligations.
a. Service Fees. Customer shall pay the Service Fees for each Device as set forth in Section 8 and in accordance with the Service Plan Terms. In the event Customer fails to pay the Service Fees as provided under the Service Plan Terms, Rand McNally may suspend or terminate the Service, as outlined in Section 8(b). However, in no event shall Rand McNally's failure to terminate the Services be construed as a waiver to do so at a later date.
b. Safe Driving Practices. Customer acknowledges that the use of mobile communications systems in a vehicle while a vehicle is in motion is distracting and DANGEROUS. Rand McNally expressly discourages any use of a mobile communication system in a moving vehicle, and in no event shall Rand McNally be liable for damages by a Customer when operating a motor vehicle. Customer shall exercise caution and common sense when the vehicle is in motion.
5. Rand McNally Obligations.
a. Support. Technical telephone support for the Devices will be available five (5) days a week, 7:00 am to 6:00 pm Central Time, excluding weekends and Rand McNally recognized holidays.
b. Training. From time to time, Rand McNally may offer training to its Customers regarding installation and use of the Devices and regarding access to and use of the Website. Such training services may be purchased separately by Customer.
6. Taxes. Customer shall pay, reimburse, and/or hold Rand McNally harmless for all applicable sales, use, transfer, privilege, tariffs, excise, and all other taxes and all taxes, whether international, national, state, or local, however designated, which are levied or imposed by reason of the sale of the Devices or Accessories, training, extended warranties or Customer's use of the Services under these Terms & Conditions; provided, however, this Section (6) shall not apply to income taxes assessed to Rand McNally on revenue received by reason of the sale of the Devices or Accessories, training, extended warranties or the performance of the Services.
7. Publicity. Rand McNally shall be permitted to issue a press release (subject to written approval by both parties) announcing Customer's purchase of the Device, Services, and/or Accessories. Rand McNally shall be permitted to use Customer's name and quotations in marketing, sales and business promotion activities, provided, Rand McNally first (i) provides a copy of the proposed marketing, sales and business promotion materials and a description of the intended use of such materials to Customer for his/ her review, and (b) obtains Customer's prior approval of the materials and intended use, which approval shall not be unreasonably withheld or delayed beyond ten (10) days. All rights in Customer’s trademarks, trade names and other intellectual property shall remain the exclusive property of Customer.
a. Payments. Customer shall pay the Service Fee for the Device purchased, under these Terms & Conditions, in advance on a monthly basis starting with the day each Device is activated and continuing for the Service Term, or as otherwise described in the Service Plan Terms.
b. Failure to Pay. If the Customer fails to pay any invoice, bill, or other amount when due, and Customer's default continues for ten (10) business days after written notice thereof from Rand McNally, all sums unpaid shall become immediately due and payable, and Rand McNally may without prejudice to its other rights or remedies under these Terms & Conditions or at law or in equity: (i) charge the Customer late fees on the amount owing from the due date until the date of actual payment at the rate of the lesser of 1.5% per month or the highest rate allowed by law, and (ii) suspend any Services provided under these Terms & Conditions until Rand McNally is fully paid. In the event the Customer desires to re-activate the account during the suspension period, a twenty five dollar ($25.00) re-activation fee per Device will be charged by Rand McNally. In addition, Rand McNally shall have all rights and remedies provided under the applicable Uniform Commercial Code and any applicable municipal, state, or federal law. Rand McNally's remedies shall be cumulative.
9. Term and Termination.
a. Term. Unless terminated earlier as provided herein, the initial term of the Service for each Device shall commence on the Activation Date and shall continue until the Service Term expires. Thereafter, these Terms & Conditions shall automatically renew on a month to month basis until either party gives written notice of termination to the other party not less than thirty (30) days in advance of the end of the initial term or any subsequent renewal period.
b. Termination. The Service may be terminated for "Cause" by either party if the other party fails or refuses to (i) pay amounts required when due and such default is not cured within ten (10) business days after the non-defaulting party gives the defaulting party written notice of such default; or (ii) keep and perform any of the other terms, covenants or conditions herein required of that party, including, but not limited to, any unauthorized disclosure or use of the Device, Accessories, Software or Services provided pursuant to these Terms & Conditions, and such default is not cured within ten (10) business days after the non-defaulting party gives the defaulting party written notice of such default.
c. Effect of Termination. Upon termination of the Service for any reason, Customer shall pay Rand McNally for the Services provided up to the effective date of termination or expiration. In the event of a termination of the Service by Rand McNally for Cause, Customer shall pay to Rand McNally the remaining Service Fees for the Device(s) for the remainder of the Service Term, unless otherwise agreed to by Rand McNally. In the event of a termination by Customer for Cause, Customer shall be released from any additional monetary or other obligations otherwise due had the Service continued in force and effect.
10. Waiver. Unless otherwise specified in these Terms & Conditions or any other terms and conditions applicable to the use of the Device, the failure by one of the parties under these Terms & Conditions to assert its rights for any breach of these Terms & Conditions shall not be deemed a waiver of such rights. The rights and remedies specified herein are in addition to, and shall not restrict, any other right or remedy either party may have at law or in equity for any breach of these Terms & Conditions.
11. Confidentiality. Each Party or its Affiliates (together, the “Disclosing Party”) may disclose to the other Party or its Affiliates (together, the “Receiving Party”) information that the Disclosing Party considers to be proprietary or confidential including the identity of Disclosing Party’s employees, customers, financial information, technical information, business plans, marketing plans, costs or pricing, trade secrets, systems and non-public information related to products and services (“Confidential Information”). Confidential Information does not include information that is or becomes a part of the public domain through no act or omission of the Receiving Party in violation of this Agreement or information which the Receiving Party had within its possession or control prior to disclosure by the Disclosing Party, each as established by tangible evidence. Each Party will hold the other’s Confidential Information in confidence. Neither Party will use the other’s Confidential Information for any purpose other than as permitted herein and will not make the other’s Confidential Information available in any form to any third party, except that Confidential Information may be disclosed to the Receiving Party’s employees, independent contractors, Affiliates, accountants, attorneys, Third Party Providers and Rand McNally’s other third-party vendors related to subject matter of these Terms and Conditions, on a need-to-know basis only, and under obligations of confidentiality at least as restrictive as those contained in these Terms and Conditions. The terms of these Terms and Conditions are included in the definition of Confidential Information. Upon termination of the Service, and at any other time upon the Disclosing Party’s written request, the Receiving Party shall either return or destroy (at the Disclosing Party’s option), the Disclosing Party’s Confidential Information. That portion of the Confidential Information that is comprised of trade secrets, computer source code, and customer information will be subject to the restrictions contained in this Section 11 in perpetuity. For the avoidance of doubt, all Intellectual Property shall be deemed to include and constitute Confidential Information and trade secrets to the extent permitted by applicable law. Notwithstanding any of the foregoing, nothing herein shall be construed to prevent either Customer or Rand McNally from making disclosures to comply with any order or directive from any authority of law or as may be required under applicable law, provided that each Party shall advise the other immediately of any such order, directive, or requirement so as to permit such other Party a reasonable opportunity to attempt to prevent or limit any such disclosure.
12. Intellectual Property.
a. Definition. "Intellectual Property" shall include, but not be limited to: the Device, the Accessories, the Software, the Documentation, and all other technical information and materials owned by or licensed to Rand McNally that is disclosed in connection with these Terms & Conditions, including technology, algorithms, source code, object code and computer code in other form, databases, indexing, search, and retrieval methods and routines, HTML, active server pages, and similar materials, knowledge, know-how, expertise, practices, procedures, methods, techniques, processes, data analysis, devices, equipment, tools, materials, consumables, data bases, costs, revenues, graphics, designs, copyrights, trademarks, patents, trade secrets, or other information capable of copyright, trademark or patent protection, and all enhancements, modifications, adaptations, extensions, derivatives and configurations of the foregoing.
b. Right, Title and Interest. All right, title and interest in the Intellectual Property shall remain vested in Rand McNally or its suppliers at all times. The sale of the Device or use of the Service does not constitute a transfer to Customer of any title or intellectual property rights in or related to the Device, Accessories, Software, documentation, modifications, or enhancements thereof.
c. Disclosure; No Rights Conferred. Customer shall not disclose any of the Intellectual Property to any third-party except as may be provided in these Terms & Conditions. Nothing in these Terms & Conditions or in the course of dealings between the parties, whether past, present, or future, or usage or custom in the industry or trade, shall be construed to confer any other rights or licenses concerning the Intellectual Property by implication, estoppel or otherwise.
d. Restrictions. Customer shall not, directly or indirectly, do or attempt to do any of the following: (i) upload, post, distribute, link to, publish, reproduce or transmit to or through any of the Intellectual Property any virus, trojan horse, worm or other disruptive or harmful software or data or any software, Customer Device Data or other data or content that does not legally belong to Customer or for which Customer does not have the permission from the owner thereof; (ii) copy any portion of the Intellectual Property; (iii) customize or extend the functionality of the Intellectual Property, or otherwise alter, modify, create derivative works of or translate the Intellectual Property; (iv) decompile, disassemble or otherwise reverse engineer the Intellectual Property or any portion thereof, or determine or attempt to discover the source code, algorithm, methods, interfaces, data structures or techniques embodied in or used by the Intellectual Property; (v) defeat or circumvent any security mechanism (including logon mechanism) with respect to any of the Intellectual Property; (vi) distribute, disclose, market, sell, rent, lease, assign, sublicense, pledge, encumber or otherwise transfer or make available the Intellectual Property or rights granted under this Agreement, as applicable, in whole or in part, to a third party except as may be provided in these Terms & Conditions; (vii) transfer, cause to transfer, or export any of the Intellectual Property, or any materials related thereto outside of North America without Rand McNally’s prior written approval; (viii) use the Intellectual Property other than in accordance with the provisions of these Terms & Conditions; (ix) remove, obscure or alter any trademark or copyright, confidentiality or other rights notice or legend appearing on or in any of the Intellectual Property; or (x) use any of the Intellectual Property in any manner that does not comply with applicable laws and regulations.
a. ALL WARRANTIES EXTENDED BY RAND MCNALLY TO CUSTOMER WITH RESPECT TO THE DEVICE AND THE SOFTWARE ARE SET FORTH SOLELY AND EXCLUSIVELY IN THESE TERMS AND CONDITIONS, WHICH CONTAIN LIMITATIONS OF WARRANTIES, LIMITATIONS OF DAMAGES, AND LIMITATIONS OF LIABILITY THAT APPLY TO RAND MCNALLY'S PERFORMANCE UNDER THESE TERMS AND CONDITIONS. ACCESSORIES AND OTHER PRODUCTS MANUFACTURED BY THIRD PARTIES SHALL BE SUBJECT TO THE WARRANTIES PROVIDED BY SUCH MANUFACTURERS.
b. Device Warranty. RAND MCNALLY makes no warranties expressed or implied, including without limitation, the Implied Warranty of Merchantability and Fitness for a Particular Purpose, EXCEPT AS FOLLOWS. RAND MCNALLY EXPRESSLY WARRANTS ONLY AS FOLLOWS: Rand McNally warrants to the Customer only, for a period of one (1) year after purchase of the Device ("Warranty Period"), that Rand McNally's Devices (i) are merchantable and fit for the purpose intended by Rand McNally; (ii) will be in operating condition and will substantially conform to their specifications and will be free from material defects in materials or workmanship for the Warranty Period after purchase and proper use and Service; and (iii) will be free from damages caused by environmental effects within the specified operating parameters of the Device; provided, no alteration has been made thereto after purchase. Rand McNally shall not be liable for fair wear and tear, damage caused by usage outside the specified environmental parameters of the Device, failure to properly maintain, damage caused by corrosives, abrasives or foreign objects, or for damage to cables used in or in connection with the Device. Rand McNally shall have no obligation as to any Device which has been improperly stored or handled, which has been placed in environmental conditions beyond the recommended specifications, or which has not been operated or maintained according to good practice or according to instructions in any manuals, nor shall Rand McNally be liable for any misuse, or the fault, negligence, want of skill, or wrongful acts of Customer or agents of Customer. If Customer requires repair after expiration of the Warranty Period, then Customer shall be charged the then-applicable rates to repair such Device together with the costs of shipping.
c. Software Warranty. Rand McNally represents and warrants to Customer that during the Warranty Period, the Software: (i) will operate in all material respects in accordance with the Documentation, (ii) will be free from physical defects in the media that tangibly embodies the Software, (iii) is free from harmful viruses (e.g. Trojan horse, worm or other software routines designed to permit unauthorized access, to disable, erase or otherwise harm software, hardware or data), and (iv) does not infringe any valid intellectual property right owned by persons or entities other than Rand McNally (or its licensors and suppliers); provided, however, that the representations and warranties described above do not extend to the operation of the Software on any hardware configuration other than as described in these Terms & Conditions or as to any copy of the Software that is modified by any person or entity other than Rand McNally (or its licensors or suppliers).
d. Defective Product Return Procedure. Any part or parts proven defective after acceptance by Customer, and within the Warranty Period, will be, upon return of such defective part(s), either adjusted, repaired, or replaced, at the sole discretion of Rand McNally; provided, however, that Customer shall (i) notify Rand McNally in writing during the Warranty Period that such Device failed to conform to the warranty set forth in this section and furnish a reasonably detailed explanation of any alleged nonconformity; (ii) obtain a return merchandise authorization number ("RMA") by submitting a form approved by Rand McNally to receive a Rand McNally-issued RMA number for the nonconforming Device from Rand McNally; and (iii) within thirty (30) days following receipt of the RMA number, return such product to Rand McNally, with the RMA number prominently attached, F.O.B. Rand McNally at such location as Rand McNally may designate in writing. Customer shall assume all responsibility and expense for removal, reinstallation and freight in connection with the foregoing. In the event Rand McNally's evaluation of the returned product results in no problem found, Customer shall pay Rand McNally for the resources used to conduct the product evaluation (currently $75.00) and the cost of returning the Device to Customer. If Customer fails to notify Rand McNally during the Warranty Period, pursuant to clause (a) of this Section 13, with respect to any Device returned by Customer, then Customer shall be charged the then-applicable rates to repair such Device, in addition to shipping costs.
14. Limitation of Damages and Liability.
a. RAND MCNALLY AND ITS EMPLOYEES AND AGENTS SHALL NOT BE LIABLE TO CUSTOMER OR TO ANY THIRD-PARTY FOR ANY PUNITIVE, EXEMPLARY, INDIRECT, SPECIAL, INCIDENTAL, OR CONSEQUENTIAL DAMAGES (INCLUDING, WITHOUT LIMITATION, ANY LOSS OF PROFITS, LOSS OF GOODWILL OR BUSINESS REPUTATION, BUSINESS INTERRUPTION, LOSS OF DATA, DEATH OR INJURY) WHETHER BASED ON BREACH OF CONTRACT, BREACH OF WARRANTY, TORT (INCLUDING NEGLIGENCE), PRODUCT LIABILITY, OR OTHERWISE, EVEN IF RAND MCNALLY HAS BEEN ADVISED OF THE POSSIBILITY OF SUCH DAMAGES. THIS NEGOTIATION OF LIABILITY IS FUNDAMENTAL TO THE BARGAIN ON WHICH THESE TERMS AND CONDITIONS ARE BASED. NOTWITHSTANDING ANYTHING TO THE CONTRARY HEREIN, IN NO EVENT SHALL RAND MCNALLY'S TOTAL CUMULATIVE LIABILITY TO CUSTOMER OR TO ANY THIRD-PARTY ARISING UNDER THESE TERMS AND CONDITIONS, WHETHER FOR DIRECT OR INDIRECT DAMAGES, EXCEED (IN THE AGGREGATE) THE TOTAL SERVICE FEES RECEIVED BY RAND MCNALLY FROM CUSTOMER, WHETHER ARISING FROM CONTRACT (INCLUDING FUNDAMENTAL BREACH), TORT (INCLUDING NEGLIGENCE), EQUITY OR ANY OTHER THEORY OF LIABILITY. ANY ACTION BY EITHER PARTY MUST BE BROUGHT WITHIN TWO (2) YEARS AFTER THE CAUSE OF ACTION AROSE.
b. Customer acknowledges that the Service provided by Rand McNally hereunder is based upon cellular telephone Service that is furnished to Rand McNally by one or more participating carriers ("Participating Carriers") pursuant to agreements between Rand McNally and such Participating Carriers. CUSTOMER FURTHER ACKNOWLEDGES THAT NETWORK SERVICES MAY BE TEMPORARILY REFUSED, INTERRUPTED, CURTAILED OR OTHERWISE LIMITED BECAUSE OF TRANSMISSION LIMITATIONS CAUSED BY ANY FACTOR, INCLUDING ATMOSPHERIC, ENVIRONMENTAL OR TOPOGRAPHICAL CONDITIONS, PARTICIPATING CARRIER FACILITIES LIMITATIONS OR CONSTRAINTS OR FACILITIES CHANGES, MODIFICATIONS, UPDATES, RELOCATIONS, REPAIRS, MAINTENANCE OR OTHER SIMILAR ACTIVITIES NECESSARY FOR THE PROPER OR IMPROVED OPERATION OF THE PARTICIPATING CARRIER FACILITIES. RAND MCNALLY AND PARTICIPATING CARRIERS ARE NOT LIABLE TO CUSTOMER WITH RESPECT TO ANY CLAIM OR DAMAGE RELATED TO OR ARISING OUT OF OR IN CONNECTION WITH (I) ANY COVERAGE GAP, OR (II) ANY NETWORK SERVICE REFUSAL, INTERRUPTION, CURTAILMENT OR OTHER LIMITATION DESCRIBED HEREIN. CUSTOMER FURTHER ACKNOWLEDGES THAT RAND MCNALLY AND PARTICIPATING CARRIERS DISCLAIM ALL LIABILITY OF ANY NATURE TO CUSTOMER, WHETHER DIRECT, INDIRECT, INCIDENTAL OR CONSEQUENTIAL, ARISING OUT OF CUSTOMER'S USE OF A RAND MCNALLY SERVICE, AND CUSTOMER AGREES THAT CUSTOMER SHALL HAVE NO CLAIMS AGAINST RAND MCNALLY OR PARTICIPATING CARRIERS OF ANY KIND WITH RESPECT THERETO.
15. Indemnification. Customer hereby agrees to defend, indemnify, and hold Rand McNally harmless from all third-party claims, causes of action, demands, suits or legal proceedings of any sort arising from or relating to (i) intentionally wrongful, reckless or negligent acts or omissions of Customer during the receipt or use of the Services; or (ii) any material breach of Customer's representations, warranties and/or other obligations set forth in these Terms & Conditions.
16. Miscellaneous Provisions.
a. No Third-Party Beneficiaries. These Terms & Conditions are solely for the benefit of these parties and their successors and permitted assigns, and do not confer any rights or remedies on any other person or entity.
b. Assignment. These Terms & Conditions shall be binding upon the parties and their respective successors and permitted assigns. Customer shall not assign the Service or any of its rights or obligations hereunder without the written consent of Rand McNally, and any such attempted assignment shall otherwise be void. Notwithstanding the foregoing, no prior written consent shall be required in the event of (i) an assignment by Rand McNally or its successor to an affiliate of the assignor in connection with a reorganization or restructuring; (ii) an assignment by Rand McNally or its successor to an assignee or successor in the case of a merger, consolidation, sale of substantially all of the assets or other transaction as a result of which the assignee acquires substantially all of that portion or the business and assets of Rand McNally to which these Terms & Conditions relate.
c. Relationship. NEITHER PARTY IS THE AGENT, FIDUCIARY, TRUSTEE, EMPLOYEE OR OTHER REPRESENTATIVE OF THE OTHER PARTY. Customer and Rand McNally acknowledge and agree that either party shall perform its duties under these Terms & Conditions as an independent contractor. Neither party has any authority to bind the other party, by contract or otherwise, to any obligation. Neither party shall make representations to the contrary, either expressly, implicitly, by appearance, or otherwise.
d. Severability. If any provision of these Terms & Conditions is declared or found to be illegal, unenforceable or void, that provision will be ineffective, but only to the extent that it is illegal, unenforceable or void, and such provision will be amended to the extent necessary to make it legal and enforceable while preserving its intent. In addition, if the remainder of these Terms & Conditions will not be affected by that declaration or finding and is capable of substantial performance, then each provision not so affected will be enforced to the maximum extent permitted by law. IT IS EXPRESSLY UNDERSTOOD AND AGREED THAT EACH AND EVERY PROVISION OF THESE TERMS AND CONDITIONS WHICH PROVIDES FOR A LIMITATION OF LIABILITY, DISCLAIMER OF WARRANTIES OR EXCLUSION OF DAMAGES IS INTENDED BY THE PARTIES TO BE SEVERABLE AND INDEPENDENT OF ANY OTHER PROVISION AND SHALL BE ENFORCED AS SUCH.
e. Governing Law / Jurisdiction. These Terms & Conditions shall be governed and construed in accordance with the laws of the United States and the State of Illinois (except for that State's choice of law provisions), and, the parties consent to the sole and exclusive jurisdiction of the state courts and U.S. federal courts located in the Northern District of Illinois. The United Nations Convention on Contracts for the International Sales of Goods expressly does not apply and is hereby waived by the parties. Should either party to these Terms and Conditions institute any legal action or proceeding to enforce these Terms & Conditions or any provision hereof, or otherwise arising under these Terms & Conditions, or for a declaration of rights hereunder, the prevailing party in any such action or proceeding shall be entitled to receive from the other party all costs and expenses, including, without limitation, reasonable attorneys' fees and costs, incurred by the prevailing party in such action or proceeding.
g. Force Majeure. Rand McNally shall be excused from performance under these Terms & Conditions to the extent that it is prevented from performing any action, in whole or in part, as a result of a delay beyond its reasonable control, caused by Customer, or caused by an act of God or the public enemy, war, civil disturbance, court order, U.S. or foreign governmental actions, strikes and other labor disturbances, or failure of telecommunications or Internet equipment outside of Rand McNally’s control.
h. Notices. All notices, communication or invoicing between Rand McNally and Customer shall be delivered via electronic transmission via the e-mail address provided to Rand McNally by Customer at the time of purchase of the Services. All communication from the Customer to Rand McNally shall be copied to Rand McNally, c/o Legal Department at 8770 W Bryn Mawr Ave, Chicago, Illinois 60031 or to fax number (847) 329-6704.
i. Survival. The following provisions shall survive termination or expiration of the Service for any reason: Sections 1, 6, 7, 9, 10, 12, 14, 15, 16 and the provisions of these Terms & Conditions that, by their terms and nature, survive termination of the Service.
j. Compliance with Terms and Conditions. Each party shall be solely responsible for ensuring that it complies with, and abides by, all the terms and conditions of these Terms and Conditions. All rights to the products sold pursuant to these Terms and Conditions are granted on the condition that such rights are forfeited if Customer fails to comply with these Terms & Conditions.
k. Compliance with Laws; Export Rules. In performing their obligations hereunder, Customer and Rand McNally each shall comply with all applicable federal, state, and local laws, rules, and regulations applicable to their individual businesses. Customer agrees that the Device, Accessories, and/ or Software purchased hereunder will not be shipped, transferred or exported into any country or used in any manner prohibited by the United States Export Administration Act or any other export laws, restrictions or regulations (collectively, the "Export Laws"). In addition, if the products are identified as export controlled items under the Export Laws, Customer represents and warrants that Customer is not a citizen of, or otherwise located within, an embargoed nation (including, without limitation, if so classified under the Export Laws, Iran, Iraq, Syria, Sudan, Libya, Cuba, North Korea, and Serbia) and that Customer is not otherwise prohibited under the Export Laws from receiving the products.