END USER LICENSE AGREEMENT

IONESCU TECHNOLOGIES’ VIRTUAL CONCIERGE SERVICE

 

IMPORTANT - READ CAREFULLY:  BY ACCESSING AND USING THIS WIRELESS DEVICE AND THE SOFTWARE OR OTHER MATERIALS PROVIDED BY IONESCU TECHNOLOGIES, LLC (“IONESCU TECH”), YOU ACKNOWLEDGE THAT YOU HAVE READ THIS END USER LICENSE AGREEMENT (“AGREEMENT”), THAT YOU UNDERSTAND IT, AND THAT YOU AGREE TO BE BOUND BY ITS TERMS.  IONESCU TECH IS WILLING TO LICENSE THE LICENSED TECHNOLOGY (AS DEFINED HEREIN) TO YOU OR THE ENTITY FOR WHICH YOU ARE ACCESSING AND USING THE LICENSED TECHNOLOGY (“CUSTOMER”) ONLY UPON THE CONDITION THAT CUSTOMER ACCEPTS ALL OF THE TERMS AND CONDITIONS CONTAINED IN THIS AGREEMENT.  IF CUSTOMER DOES NOT AGREE TO THE TERMS AND CONDITIONS OF THIS AGREEMENT, THEN CUSTOMER SHOULD PROMPTLY EXIT THIS PAGE WITHOUT ACCESSING OR USING THE LICENSED TECHNOLOGY.

 

1.  Definitions.

 

1.1 “Customer Content” shall mean videos, photographs, data, information and other content downloaded onto or transmitted by Customer via the Licensed Technology.

 

1.2 “Licensed Hardware” shall mean one (1) iPad computer (including the third party software installed on such iPad computer), one (1) case protector, two (2) charge cables, and the software application to access the Licensed Service. 

 

1.3  “Licensed Service” shall mean Ionescu Tech’s Landmark® web-based virtual concierge service. 

 

1.4 “Licensed Technology” shall mean the Licensed Service and the Licensed Hardware.  

 

1.5 “Terms of Service” shall mean the terms of service for any software application included as a part of the Licensed Technology.

 

2.  License Grant. 

 

2.1 During the Term, Ionescu Tech grants to Customer a non-exclusive, non-transferrable, non-sublicensable right and license to use each unit of the Licensed Technology in the Territory. “Territory” shall mean a thirty (30) mile radius around the location where the Licensed Technology is initially licensed to Customer.  Each unit of Licensed Hardware and Licensed Service must be sublicensed together and may not be licensed separately.

 

2.2 Customer agrees to abide by the Terms of Service.

 

3.   Restrictions.  Any rights not expressly granted by Ionescu Tech to Customer are reserved by Ionescu Tech and its suppliers, and all implied licenses are disclaimed.  Except as otherwise stated herein, Customer shall not (i) reverse engineer, decompile, reverse compile, translate, adapt, or disassemble or otherwise access the source code to the Licensed Technology, or any part thereof; (ii) copy the Licensed Technology, or any part thereof, in any form, except as set forth herein; (iii) publish, display, disclose, sell, rent, lease, modify, store, loan, distribute, or create compilations or derivative works of the Licensed Technology, or any part thereof, except as set forth herein; (iv) assign, sublicense, convey, transfer, pledge as security or otherwise encumber the rights and licenses granted hereunder; (v) make available any portion of the Licensed Technology through electronic mail or the Internet; or (vi) save, store or otherwise archive the Licensed Technology or any part thereof, except as set forth herein.  Customer shall not cause, assist or permit any third party to do any of the foregoing

 

4. Support.  Ionescu Tech shall make reasonable efforts to provide remote maintenance support for the Licensed Technology via telephonic means during Monday through Friday from 9 a.m. to 6 p.m. Eastern Standard Time, except for United States federal holidays.  

 

5. Damage to Licensed Technology.  Each unit of the Licensed Technology shall be inspected by Ionescu Tech or its agents before each license to an applicable Customer and immediately upon return of each unit of Licensed Technology from each applicable Customer, and any and all damage to each unit of Licensed Technology shall be recorded.  Customer agrees to pay the following charges: (i) $899.00 for each iPad of any unit of Licensed Technology that is returned broken or non-working or not returned by the applicable Customer, and (ii) $20.00 for each charging cable, and $100.00 for each case protector, of any unit of the Licensed Technology that is returned broken or non-working or not returned by the applicable Customer.     

 

6. Fees and Payment.

 

6.1  Customer shall pay the current pricing for each unit of the Licensed Technology licensed to such Customer.  Such pricing is currently $25.00 per day for each unit of Licensed Technology licensed.  Ionescu Tech reserves the right to increase or otherwise modify such pricing upon at least seven (7) days’ prior written notice. 

 

6.2 Fees for the license of the Licensed Technology for the initial license period shall be invoiced to Customer at the time of license of the Licensed Technology.   Such amounts shall be due promptly on the date of license of the Licensed Technology.  In the event that the Customer extends the license period for the Licensed Technology, fees for such additional license period for the Licensed Technology shall be invoiced and due immediately.  All amounts not paid when due shall accrue interest daily at the lesser of a monthly rate of one and one-half percent (1.5%) or the highest rate permissible by law on the unpaid balance until paid in full.  Customer shall be responsible for any and all collections’ costs and related attorneys’ fees.  

6.3 Customer hereby authorizes Ionescu Tech and its agents to immediately charge Customer’s designated credit card account for the fees under this Agreement in such amounts as become due under this Agreement. Such authorization shall be made via Ionescu Tech’s designated credit card processing service and in accordance with the terms and conditions of such credit card processing service.

7. Intellectual Property.

 

7.1 Customer acknowledges and agrees that Ionescu Tech and its suppliers own all right, title and interest in and to the Licensed Technology and the associated intellectual property rights.  Customer agrees that all Licensed Technology is being licensed, not sold, to Customer. 

7.2 Customer shall not obscure or remove any copyright, trademark or other intellectual property or proprietary notices or markings from the Licensed Technology.

7.3 Customer shall retain any ownership rights in and to the Customer Content and the associated intellectual property rights therein.  However, subject to the terms and conditions set forth herein, Customer hereby grant to Ionescu Tech a royalty-free, perpetual, irrevocable, world-wide, non-exclusive license to use the Customer Content to fulfill its obligations under this Agreement.   Notwithstanding any other provision in this Agreement, Customer shall not place any confidential information on the unit of Licensed Technology, and Ionescu Tech and its agents shall not be responsible for the confidentiality of such information.

 

7.4 Customer represents and warrants that: (i) Customer owns or has the necessary licenses and other rights to use and authorize Ionescu Tech to use the Customer Content, and the associated patent, trademark, copyright, trade secret and other intellectual property and proprietary rights therein, in connection with this Agreement; (ii) Customer has the written consent, release and/or permission of each identifiable individual person in the Customer Content to use the name and likeness of such identifiable individual person to enable the inclusion and use of the Customer Content via the Licensed Technology in accordance with this Agreement, (iii) the Customer Content does not infringe the intellectual property or proprietary rights, including without limitation, patents, copyrights, trademarks and trade secrets, of any third party; (iv) Customer shall not submit any material that may disrupt or interfere with the hardware or software operating the Licensed Technology; and (v) Customer shall not use the Licensed Technology to submit or transmit offensive or disruptive material, including without limitation, spam, offensive sexual, racial or gender related material, defamatory, libelous or threatening material, or any other material that is unlawful, encourages criminal conduct or is otherwise inappropriate.

 

8. Term.

 

8.1 The term of this Agreement shall commence on the date of this Agreement and continue in effect, unless otherwise terminated under the terms of this Agreement.

 

8.2 Customer may terminate this Agreement at any time by returning via hand delivery the Licensed Technology to Ionescu Tech or its agents at the original location of license of the Licensed Technology.  Customer’s right to use the Licensed Technology terminates automatically if Customer violates any part of this Agreement.  Upon notification of termination, Customer agrees to return via hand delivery the Licensed Technology to Ionescu Tech or its agents at the original location of license of the Licensed Technology.  All provisions relating to confidentiality, intellectual property and proprietary rights, payment and damage fees shall survive the termination of this Agreement.

 

9.  Warranty.

 

9.1 The Licensed Technology is provided to Customer on an “AS IS” and “AS AVAILABLE” basis and without a warranty of any kind and, to the maximum extent permitted by law.  IONESCU TECH, ITS AGENTS AND ITS SUPPLIERS DISCLAIM ALL OTHER WARRANTIES OF ANY KIND, EITHER EXPRESS, IMPLIED OR STATUTORY, INCLUDING WITHOUT LIMITATION, IMPLIED WARRANTIES OF MERCHANTABILITY, FITNESS FOR A PARTICULAR PURPOSE, ACCURACY, INFRINGEMENT AND TITLE.  IONESCU TECH, ITS AGENTS AND ITS SUPPLIERS DO NOT WARRANT THAT THE FUNCTIONS CONTAINED IN THE LICENSED TECHNOLOGY WILL MEET ANY REQUIREMENTS OR NEEDS CUSTOMER MAY HAVE, OR THAT THE LICENSED TECHNOLOGY WILL OPERATE ERROR FREE, OR IN AN UNINTERRUPTED FASHION, OR THAT ANY DEFECTS OR ERRORS IN THE LICENSED TECHNOLOGY WILL BE CORRECTED. 

 

9.2 Customer represents and warrants to Ionescu Tech that (i) Customer is either: (a) an individual of at least eighteen (18) years of age or (b) a duly authorized representative of an entity, including without limitation, a corporation, limited liability company, or partnership; and (ii) the execution, delivery and performance of this Agreement is within its power and has been duly authorized by all necessary actions.  Customer further represents and warrants to Ionescu Tech, to its best knowledge (i) Customer’s use of the Licensed Technology complies in all respects with all applicable laws, statutes, regulations and ordinances; and (ii) any and all information provided by Customer to Ionescu Tech and its agents is truthful and accurate. 

 

10. Limitation of Liability.  IN NO EVENT SHALL IONESCU TECH, ITS AGENTS OR ITS SUPPLIERS BE LIABLE TO CUSTOMER FOR ANY INCIDENTAL OR CONSEQUENTIAL DAMAGES (INCLUDING, WITHOUT LIMITATION, INDIRECT, SPECIAL, PUNITIVE, OR EXEMPLARY DAMAGES FOR LOSS OF BUSINESS, LOSS OF PROFITS, BUSINESS INTERRUPTION, OR LOSS OF BUSINESS INFORMATION) ARISING OUT OF THE AGREEMENT, THE USE OF OR INABILITY TO USE THE LICENSED TECHNOLOGY, OR FOR ANY CLAIM BY ANY OTHER PARTY, EVEN IF IONESCU TECH, ITS AGENTS OR ITS SUPPLIERS HAVE BEEN ADVISED OF THE POSSIBILITY OF SUCH DAMAGES.   IONESCU TECH’S, ITS AGENTS’ AND ITS SUPPLIERS’ AGGREGATE LIABILITY IN CONNECTION WITH THE AGREEMENT AND THE LICENSED TECHNOLOGY, WHETHER IN CONTRACT OR TORT OR OTHERWISE, SHALL NOT EXCEED THE AMOUNTS PAID TO IONESCU TECH BY CUSTOMER UNDER THIS AGREEMENT. 

 

11.   Indemnification.  Customer shall indemnify, defend and hold harmless each of Ionescu Tech and its agents and suppliers, and their respective directors, officers, employees, agents and representatives from and against any and all claims, losses, damages, liabilities, costs and expenses, including reasonable attorneys’ fees, that arise out of or are related to (i) a breach by Customer of any warranty, representation or covenant set forth herein, (ii) Customer’s negligence or willful misconduct, (iii) any other claim resulting from Customer’s use or operation of the Licensed Technology, and/or (iv) damage caused to any third party by the Customer Content.  

 

12.   Governing Law.  THE PARTIES AGREE THAT THIS AGREEMENT AND THE RELATIONSHIP BETWEEN THE PARTIES SHALL BE GOVERNED BY AND CONSTRUED IN ACCORDANCE WITH THE LAWS OF THE STATE OF MARYLAND, WITHOUT REGARD TO ITS PRINCIPLES OF CONFLICTS OF LAWS AND WITHOUT APPLICATION OF THE MARYLAND UNIFORM COMPUTER INFORMATION TRANSACTION ACT.  THE PARTIES AGREE TO SUBMIT TO THE EXCLUSIVE JURISDICTION AND VENUE OF THE FEDERAL AND/OR STATE COURTS IN THE STATE OF MARYLAND FOR THE RESOLUTION OF ANY DISPUTES AMONGST THE PARTIES UNDER THIS AGREEMENT.

 

13.  Miscellaneous.

 

13.1 This Agreement, including the attached exhibits, constitutes the entire agreement, superseding all prior oral or written agreements, understandings, conditions and warranties, between the parties hereto on the subject matter hereof, and may be modified or amended only by a writing signed by both of the parties hereto.  Ionescu Tech shall not be bound by any provision of any purchase order, receipt, acceptance, confirmation, correspondence, or otherwise, unless Ionescu Tech specifically agrees to the provision in writing.

13.2 This Agreement may not be assigned by Customer, whether voluntarily or by operation of law, without the prior written consent of Ionescu Tech, which may be withheld at its sole discretion.  This Agreement shall bind and inure to the benefit of the successors and assigns of the parties.

13.3 Customer agrees that the failure of Ionescu Tech at any time to require performance by Customer of any of the provisions herein shall not operate as a waiver of the right of Ionescu Tech to request strict performance of the same or like provisions, or any other provisions hereof, at a later time.

 

13.4 The invalidity or unenforceability in whole or in part of any provision of this Agreement shall not affect the validity and enforceability of the remaining provisions which shall be read as if such invalid or unenforceable provisions had never been included.  The parties acknowledge and agree that any provision that by its nature survives shall survive cancellation or termination of this Agreement.

 

13.5   If either party brings an action to enforce the terms of this Agreement, the prevailing party shall be entitled to recover all costs and expenses, including attorneys’ fees, from the other party.

 

  13.6 Any notice provided pursuant to this Agreement shall be in writing and shall be deemed given (i) if by hand delivery, upon receipt thereof; (ii) if mailed, three (3) days after deposit in the U.S. mails, postage prepaid, certified mail return receipt requested, or (iii) if sent via overnight courier, upon receipt.  All notices to the parties hereunder shall be addressed to the parties at the respective addresses indicated above (or to such other address as either party may provide written notice of to the other in the manner provided for herein).