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.