MEDIA EVALUATION AGREEMENT
1. Limited Evaluation License and Term. For value received, Vapor Music licenses to Licensee for a period of ninety (90) days from the date of the corresponding Licensee download of Licensed Material (as hereafter defined), a non-exclusive, non-sub-licensable, non-transferable and non-assignable right to use the audio files Licensee selects and so downloads and any derivatives, versions or copies (collectively, the "Licensed Material"), on Licensee’s personal computer for evaluation purposes. The Licensed Material may only be used in materials for personal, non-commercial use and evaluation. All rights to the Licensed Material are owned or controlled by Vapor Music and its licensors, and are protected by Canadian copyright laws, international treaty provisions and other applicable laws. Vapor Music and its licensors retain all rights not expressly granted by this Agreement. No use of information and material contained within the Licensed Material, including the metadata, sound recordings, sound effects and musical compositions, may be made except in compliance with this Agreement. The evaluation license contained in this Agreement will terminate automatically without notice from Vapor Music upon expiry of the said ninety (90) day evaluation license term, or immediately earlier upon the Licensee failing to comply with any provision of this Agreement. Upon termination, Licensee must immediately stop using the Licensed Material and either destroy any digital Licensed Material or return the Licensed Material and all copies to Vapor Music.
2. Restrictions. The Licensed Material may not be used in any final materials distributed inside of the Licensee’s company or in any materials in any state of completion distributed outside of the Licensee’s company or to the public, including, but not limited to, advertising and marketing materials or in any online or other electronic distribution system, and may not be distributed, sublicensed or made available for use or distribution separately or individually and no rights may be granted to the Licensed Material. Except as specifically provided in this Agreement, the Licensed Material may not be shared or copied for example by including it in a disc library, audio file storage jukebox, network configuration or other similar arrangement. Use which would be defamatory, pornographic or otherwise unlawful is prohibited.
4. Limited Warranty. Vapor Music warrants the digital copy of the Licensed Material in the form downloaded by the Licensee during this on-line session to be free from defects in reproducible material and workmanship for the saidninety (90) day evaluation license term. The Licensee’s sole and exclusive remedy for a breach of the foregoing warranty is the replacement of the digital copy of the Licensed Material. VAPOR MUSIC MAKES NO OTHER WARRANTY, EXPRESS OR IMPLIED, INCLUDING, WITHOUT LIMITATION, ANY WARRANTY AS TO TITLE, OR ANY IMPLIED WARRANTIES OF MERCHANTABILITY OR FITNESS FOR A PARTICULAR PURPOSE. VAPOR MUSIC SHALL NOT BE LIABLE TO LICENSEE OR ANY OTHER PERSON OR ENTITY FOR ANY GENERAL, SPECIAL, DIRECT, INDIRECT, CONSEQUENTIAL, INCIDENTAL OR OTHER DAMAGES ARISING OUT OF THIS EVALUATION LICENCE OR OTHERWISE.
5. Liability for Collectively Administered Rights and Union Obligations. Nothing contained herein shall be deemed to constitute a waiver of any fee which, as a result of the use or misuse of the Licensed Material contemplated by this Agreement, shall become due and payable to any applicable performance or collective rights society or pursuant to any union or collective bargaining requirements. The Licensee agrees to pay all such fees immediately when due and also to submit to all applicable performance or collective rights societies and to all union and other collective bargaining entities such filings, including so-called "cue sheets", as may be required and further agrees to take such actions as are necessary, in keeping with common industry practice, to enable such performance or collective rights societies and such union and other collective bargaining entities to monitor and administer any applicable performing, mechanical and/or other rights fees payable to the copyright owners of the Licensed Material and/or to the performers of the Licensed Material.
6. Indemnity. The Licensee agrees to indemnify and hold harmless Vapor Music and each of Vapor Music’s licensors and each of Vapor Music’s and each such licensor’s directors, officers, employees, independent contractors and agents (collectively, the “Indemnified Parties”) from any and all costs and expenses (including but not limited to reasonable attorney’s fees and costs of investigation), losses, claims, liabilities or obligations suffered or incurred by one or more of the Indemnified Parties and arising out of, or in any way connected with, the Licensee’s breach or purported breach of, or any claim inconsistent with, the Licensee’s representations and warranties and/or the terms and provisions of this Agreement to be observed or performed by the Licensee.
7. Unauthorized Use. Any use of Licensed Material in a manner not expressly authorized by this Agreement or in breach of a term of this Agreement constitutes copyright infringement, entitling Vapor Music and its licensors to exercise all rights and remedies available to each of them under copyright laws around the world. In addition, and without prejudice to Vapor Music’s and its licensors’ other remedies under this Agreement or otherwise at law, Vapor Music reserves the right, at Vapor Music’s election, to charge and Licensee agrees to pay a fee equal to up to five (5) times Vapor Music’s standard license fee plus exigible HST, for the unauthorized use of the Licensed Material as liquidated damages and not as a penalty. Without limitation or impairment to the forgoing, Vapor Music reserves the right to terminate this Agreement automatically and without any period of grace whatsoever, in the event Licensee: (i) breaches any of the terms or provisions of this Agreement on the part of the Licensee to be observed or performed; or (ii) provides inaccurate information regarding its proposed use of the Licensed Material. Upon termination, Licensee must immediately (I) stop using the Licensed Material; and (II) destroy or, upon the request of Vapor Music, return the Licensed Material to Vapor Music forthwith.
- Entire Agreement. This Agreement is the entire agreement between Vapor Music and the Licensee pertaining to the right to use the Licensed Material and the other subject matter hereof, superseding any other agreement or discussions, oral or written, and may not be changed except by a signed agreement.
- Governing Law. This Agreement shall be governed by and construed in accordance with the laws of the Province of Ontario and the federal laws of Canada applicable therein for contracts to be wholly performed in Ontario (without regard to any principles of conflict of laws that may otherwise require the application of the laws or any other jurisdiction). Vapor Music and the Licensee irrevocably attorn to the non-exclusive jurisdiction of the Courts of the Province of Ontario. Les parties aux presentes ont exige que ce contrat et les documents y affrents soient rediges en anglais.
- Independent Advice. The Licensee has read and understands all of this Agreement. The Licensee acknowledges that it/he/she has had the opportunity to seek independent legal advice with the respect to the provisions of this Agreement, and confirms that it/he/she is executing this Agreement freely, voluntarily and without duress.
- Notices. All notices or other communications required to be given to either party shall be in writing and given in person or sent via registered mail, return receipt requested, or by E Mail to Vapor Music at the address of (and contact person at) Vapor Music set out on the first page of this Agreement or if to the Licensee at the Licensees then current address of record on file with Vapor Music, or to such other address as either party may hereafter designate by notice in writing to the other party.
- Binding nature of this Agreement. This Agreement, and the evaluation license contained in it, are binding upon the parties and are not assignable or sub-licensable by the Licensee. Vapor Music shall have the right, at its election, to assign any of its rights or obligations hereunder, in whole or in part, to any person, firm or corporation including without limitation, any affiliate or publishing designee of Vapor Music.
- No Partnership. Nothing contained in this Agreement shall be construed as: (i) placing the parties hereto in the relationship of joint ventures or partners; or (ii) creating a fiduciary relationship on the part of Vapor Music.. Each and every provision of this Agreement is entirely separate from every other provision and should any provision herein be declared invalid, illegal or unenforceable, such declaration shall in no way affect the validity or enforceability of the remaining provisions of this Agreement.
- Counterparts: This Agreement may be executed in counterparts, each of which counterparts when so executed shall be deemed to be an original and such counterparts together shall constitute one and the same instrument which shall be sufficiently evidenced by any such original counterpart.