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In the absence of a written agreement signed by mProver that expressly
addresses the matters set forth below, for any analyses and recommendations,
or any other work or services performed by mProver ("Work"),
and any writings, reports, evaluations or materials generated or delivered
by mProver ("Materials"), the following terms and conditions
apply:
1. Payment
Unless otherwise agreed in writing, full payment for a Usability Evaluation
is required on or before the date the evaluation is initiated by mProver.
2.
No License
mProver does not grant to any other person or entity any copyright or
other intellectual property rights in or license to any Materials or Work,
or in any of mProver's methods, tools, logos, or other intellectual property.
mProver retains all rights in all Materials and Work.
3.
No Warranties
mProver does not make, and mProver specifically disclaims, any representations
or warranties, express or implied, regarding any Materials or Work, including
any implied warranty of merchantability, fitness for a particular purpose,
title, or non-infringement, and any implied warranties arising from course
of dealing or course of performance.
4.
Limitation of Liability
Under no circumstances will mProver be liable to any other person or entity
for indirect, incidental, consequential, punitive, special or exemplary
damages (even if mProver has been advised of the possibility of such damages
and regardless of the theory of liability), arising from any Work or Materials,
or any promises concerning the provision of Work or Materials by mProver,
such as, but not limited to, loss of revenue or anticipated profits or
lost business. These limitations apply notwithstanding any failure of
essential purpose of any remedy. In no event shall mProver's total liability
for any damages or loss to any other person or entity exceed the fees
paid to mProver by such person or entity during the twelve months immediately
preceding the claim by such person or entity, regardless of whether any
action or claim is based on warranty, contract, tort or otherwise.
5.
Governing Law
Any Work or Materials, or promises concerning the provision of Work or
Materials by mProver, shall be governed by and interpreted under the laws
of the State of New York, without giving effect to applicable conflicts
of law principles. Any dispute, claim or controversy of any kind arising
in connection with, or relating to, any Work or Materials, or promises
concerning the provision of Work or Materials by mProver, shall be resolved
exclusively by binding arbitration in Westchester County, New York in
accordance with the Commercial Arbitration Rules of the American Arbitration
Association then in effect, by three (3) arbitrators appointed in accordance
with said rules. Judgment on the award rendered by the arbitrators may
be entered into any court of competent jurisdiction.
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