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License Agreement Read and accept the terms of the License Agreement below to download the software. ALL XCITEX SOFTWARE IS LICENSED FOR USE, NOT SOLD. AS A LICENSEE, YOU HAVE SPECIFIC RIGHTS REGARDING USE AND INSTALLATION OF THE SOFTWARE. READ THE FOLLOWING TERMS AND CONDITIONS OF THIS LICENSE AGREEMENT CAREFULLY BEFORE DOWNLOADING AND INSTALLING SOFTWARE FOR YOUR PROANALYST SYSTEM (THE "SOFTWARE"). BY DOWNLOADING SOFTWARE FROM THE XCITEX WEB SITE, YOU ACCEPT AND AGREE TO THE TERMS AND CONDITIONS HEREOF. THIS LICENSE AGREEMENT REPRESENTS THE ENTIRE AGREEMENT CONCERNING THE PROANALYST SOFTWARE BETWEEN YOU AND XCITEX INCORPORATED (THE "LICENSOR"). 1. LICENSE. Xcitex Inc. hereby grants to you, as the Licensee, and you accept a nonexclusive, nontransferable license to download, install and use Software in accordance with the terms hereof.. 2. OWNERSHIP OF THE SOFTWARE. Xcitex Inc. owns and will retain all title, copyright, trademark and other proprietary rights in and to the Software. This License is NOT a sale of the Software or a sale of any copy of the Software. This License Agreement does not convey to you an interest in or to the Software but only a limited right to use the Software, as is provided herein, revocable in accordance with the terms of the Agreement. You agree as follows: 2.1 You may NOT make any copies of all or any part of the Software except for archival copies of the Software as may be permitted by the United States Copyright Act. 2.2 You may NOT reverse compile, reverse assemble, reverse engineer, modify, incorporate in whole or in part in any other product or create derivative work based on all or any part of the Software 2.3 You may NOT remove any copyright, trademark, proprietary rights, disclaimer or warning notice included on or embedded in any part of the Software 2.4 You may NOT sell, license, sublicense, rent, or otherwise transfer the Software without the prior written consent of Xcitex Inc. 3 COPYRIGHT. This software is owned by Xcitex Inc. and protected by United States copyright laws and international treaty provisions. Therefore, you must treat the software like any other copyrighted material. 4 LIMITED WARRANTY. Xcitex Inc. warrants, for your benefit alone, for a period of thirty (30) days after download by you, that the Software will conform in all material respects to the user documentation furnished to you, if appropriate. Xcitex's sole responsibility under this warranty will be to use reasonable efforts to correct documented errors in said Software that are reported to it within the foregoing warranty period. Xcitex does not warrant that the Software will be error free, nor that all program errors will be corrected. Xcitex's warranty does not apply insofar as (a) the Software is subjected to misuse, neglect, accident or exposure to environmental conditions beyond those specified by Xcitex; (b) claims resulting from acts or omissions caused by persons other than Xcitex Inc. or from products, material or software not provided by Xcitex Inc.; or (c) you use Software that does not include all updates available from Xcitex. THIS IS THE ONLY WARRANTY GIVEN WITH THE SOFTWARE; XCITEX INC. MAKES NO OTHER WARRANTIES, EXPRESS, IMPLIED, OR ARISING BY CUSTOM OR TRADE USAGE, AND SPECIFICALLY DISCLAIMER THE IMPLIES WARRANTIES OR NONINFRINGEMENT, MERCHANTABILITY OR OF FITNESS FOR ANY PARTICULAR PURPOSE. SAID EXPRESS WARRANTY SHALL NOT BE ENLARGED OR OTHERWISE AFFECTED BY XCITEX’S RENDERING OF TECHNICAL OR OTHER ADVICE OF SERVICE IN CONNECTION WITH THE SOFTWARE. LICENSOR SHALL NOT BE HELD RESPONSIBLE FOR THE PERFORMANCE OF OR OUTPUT OBTAINED FROM THE SOFTWARE NOR ANY LIABILITY TO ANY PARTY ARISING OUT OF USE OF THE SOFTWARE OR USE OF ITEMS DESIGNED WITH THE SOFTWARE 5. LIMITATION OF LIABILITY. Xcitex's cumulative liability to you or any other party for any loss or damages resulting from any claims, demands, or actions arising out or in connection with the Software, or arising out of in connection with or relating to this License Agreement shall not exceed the License fee paid to Xcitex by you or the Software. In no event shall Xcitex be liable for any indirect, incidental, special , exemplary, or consequential damages (including any damages resulting from loss of use, loss of data, loss of profits or loss of business), or lost profits, even if Xcitex has been advised of the possibility of such damages. 6. MISCELLANEOUS. This License Agreement shall be construed and governed in accordance with the laws of the Commonwealth of Massachusetts and shall be construed as an instrument under seal. Should any term of this License Agreement be declared void or unenforceable by any court or competent jurisdiction, such declaration shall have no effect on the remaining terms hereof. The failure of either party to enforce any rights granted hereunder or take action against the other party in the event of any breach hereunder shall not be deemed a waiver by that party as to subsequent enforcement of rights or subsequent actions in the event of future breaches.
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