Dyadic Security - End-User License Agreement

This End-User License Agreement (this "Agreement") is a legal contract between you, as either an individual or a single business entity, and Dyadic Security, Inc. and its affiliates ("Dyadic").

READ THE TERMS AND CONDITIONS OF THIS AGREEMENT CAREFULLY BEFORE DOWNLOADING OR INSTALLING DYADIC’S PROPRIETARY SOFTWARE (THE "SOFTWARE") OR USING THE SOFTWARE. THE SOFTWARE IS FURTHER DEFINED IN AN ORDER DOCUMENT (AN “ORDER”), ENTERED INTO BETWEEN YOU AND DYADIC OR YOU AND A DYADIC RESELLER, WHICH SETS FORTH COMMERCIAL TERMS APPLICABLE TO YOUR PURCHASE OF THE SOFTWARE.

THE SOFTWARE IS COPYRIGHTED AND SUBJECT TO OTHER INTELLECTUAL RIGHTS PROTECTIONS AND IT IS LICENSED TO YOU UNDER THIS AGREEMENT AND IS NOT SOLD TO YOU. BY FOLLOWING A “CLICK ACCEPT” OR OTHER ACCEPTANCE PROCESS, OR BY DOWNLOADING, INSTALLING OR USING THE SOFTWARE, OR BY ENTERING INTO AN ORDER WHICH REFERENCES AND PROVIDES SOURCE INFORMATION NECESSARY FOR ACCESSING AND REVIEWING THIS AGREEMENT, YOU ACKNOWLEDGE THAT YOU HAVE READ THIS AGREEMENT, THAT YOU UNDERSTAND IT, AND THAT YOU ACCEPT AND AGREE TO BE BOUND BY ITS TERMS. IF YOU ARE NOT WILLING TO BE BOUND BY THE TERMS OF THIS AGREEMENT, YOU SHOULD TERMINATE THE DOWNLOAD OR INSTALLATION PROCESS, AND REFRAIN FROM ACCESSING OR USING THE SOFTWARE. THIS AGREEMENT, INCLUDING ANY ORDERS, REPRESENTS THE ENTIRE AGREEMENT BETWEEN YOU AND DYADIC CONCERNING THE SOFTWARE, AND THIS AGREEMENT SUPERSEDES AND REPLACES ANY PRIOR PROPOSAL, REPRESENTATION, OR UNDERSTANDING YOU MAY HAVE HAD WITH DYADIC RELATING TO THE SOFTWARE UNLESS YOU HAVE ENTERED INTO A SEPARATE WRITTEN AGREEMENT SIGNED BY DYADIC THAT EXPRESSLY AMENDS THIS AGREEMENT.

1.1.         Grant of License. Dyadic hereby grants to you, and you accept, a limited, nonexclusive, non-transferable license to use the Software in machine-readable, object code form only, and the user manuals accompanying the Software (the “Documentation”), only as authorized in this Agreement, and subject to compliance with the terms of this Agreement, and payment of all applicable license fees. For purposes of this Agreement, the “Software” includes any updates, enhancements, modifications, revisions, or additions to the Software made available to you by Dyadic. Notwithstanding the foregoing, Dyadic shall be under no obligation to provide any updates, enhancements, modifications, revisions, or additions to the Software. The Software is licensed on a subscription basis for the limited term set forth in the Order. The term of your license is as set forth in the Order shall begin on the earlier of your download or installation of the Software. If the Order does not state a term, then the term of the license shall be for a period of one (1) year. The term of your license is renewable on terms set forth in the Order, in this Agreement, or otherwise as agreed by Dyadic.

1.2.         Evaluation License. If you have received an evaluation license for the Software as set forth in an Order, then the period during which you are granted a license to use the Software under this Agreement shall not exceed 30 days from the earlier of installation or delivery of the Software, unless you receive express authorization from Dyadic to extend such period. Under an evaluation license, the indemnification given by Dyadic in Section 5 and the warranties given in Section 6 (excluding the warranty disclaimers) shall not apply.

1.3.         Scope of Use. You may use the Software for the number of computer applications owned, leased, or otherwise controlled by you, as specified in an Order. An Order may also specify other applicable license scope definitions. For purposes of this Agreement, “use” of the Software means loading the Software into the temporary or permanent memory of a computer and executing the Software. Dyadic may at any time install into the Software functionality that will automatically restrict usage of the Software to the scope of use set forth in an Order.

1.4.         Restrictions, Copies and Modifications. You may not reverse engineer, decompile, disassemble, or otherwise translate the Software you have obtained. You may not modify or adapt the Software that you have obtained in any way. You may make one copy of the Software and the Documentation that you have obtained, solely for backup or archival purposes. Any such copies of the Software and Documentation shall include any copyright or other proprietary notices that were included on such materials when you first received them. Except as authorized in this Section, no copies of the Software or Documentation, or any portions thereof, may be made or distributed by you or any person under your authority or control. You may not allow third party use of the Software or use of the Software as a service bureau.

1.5.         Assignment of Rights. You will not sublicense, lease, rent, or lend your rights in the Software or Documentation, as granted by this Agreement, to any party without prior written consent of Dyadic.

2.1.         Use Reporting, License Violations and Remedies. Upon request from Dyadic, you will provide Dyadic with a report detailing Software usage and other information deemed relevant by Dyadic, to verify that our products are being used in accordance with the terms of this Agreement. Additionally, you agree that Dyadic may, upon reasonable notice, perform an audit of your facilities to verify compliance with the terms of this Agreement. Any unauthorized use shall be considered by Dyadic to be a violation of this Agreement. Dyadic reserves the right to remedy violations immediately upon discovery, by charging the then-current list price of unauthorized usage. This is not a sole remedy for a violation of this Agreement and Dyadic may exercise any other remedies available at equity or law.

2.2.         License Expiration.  Payment must be processed prior to the expiration date in order for your license to continue in effect.  It is your responsibility to contact Dyadic regarding any potential expiration that you deem inappropriate. Dyadic shall not be liable for any damages or costs incurred in connection with expired licenses and consequent termination your license to use the Software.

2.3.         Proprietary Rights to Software and Trademarks. You acknowledge that the Software and the Documentation are proprietary to Dyadic, and the Software and Documentation are protected under national and international intellectual property laws, regulations and treaties. You further acknowledge and agree that, as between you and Dyadic, Dyadic owns and shall continue to own all right, title, and interest in and to the Software and Documentation, including associated intellectual property rights under copyright, trade secret, patent, or trademark laws. This Agreement does not grant you any ownership interest in or to the Software or the Documentation, but only a limited right of use that is revocable in accordance with the terms of this Agreement. Any and all trademarks or service marks that Dyadic uses in connection with the Software or with services rendered by Dyadic are marks owned by Dyadic. This Agreement does not grant you any right, license, or interest in such marks, and you shall not assert any right, license, or interest in such marks or any words or designs that are confusingly similar to such marks.

2.4.         Confidentiality. You shall permit only authorized users to use the Software or to view the Documentation. Except as expressly authorized by this Agreement, you shall not make available the Software or Documentation to any third party. You will use your best efforts to cooperate with and assist Dyadic in identifying and preventing any unauthorized use, copying, or disclosure of the Software, Documentation, or any portion thereof.

The license granted to use the Software is conditioned upon payment of applicable license fees. The Software will be available to you for use upon your acceptance of this Agreement. You shall, in addition to license fees, pay all applicable sales, use, transfer, or other taxes and all duties, whether national, state, or local, however designated, that are levied or imposed by reason of your purchase and use of the Software, excluding income taxes on the net profits of Dyadic.

This Agreement is effective upon your acceptance of the Agreement, or upon your downloading, installing, accessing, or using the Software, even if you have not expressly accepted this Agreement. This Agreement shall continue in effect until expiration of the applicable license term or as otherwise terminated as herein provided. Without prejudice to any other rights, this Agreement will terminate automatically if you fail to comply with any of the limitations or other requirements described herein. The Software is licensed on a limited term basis, and this Agreement will automatically expire upon the end of the limited term set forth in the Order, unless this Agreement is renewed.  If you fail to pay the applicable license fees or renewal license fees, Dyadic shall have the right to interrupt your use of the Software. You may terminate this Agreement at any time by: (i) providing written notice of your decision to terminate the Agreement to Dyadic and (ii) either returning the Software, Documentation and all copies thereof that you have obtained to Dyadic or destroying all such materials and providing written verification of such destruction to Dyadic. Dyadic may terminate this License Agreement if you breach any term of the Agreement by giving you written notice of your breach and Dyadic’s decision to terminate the Agreement. Upon termination of this Agreement, you agree to either return to Dyadic the Software, Documentation, and all copies thereof that you have obtained, or to destroy all such materials and provide written verification of such destruction to Dyadic.

Dyadic shall, at its expense, defend and indemnify you for damages and reasonable costs finally incurred in any suit or claim brought against you alleging that the Software infringes any U.S. patent, copyright, trade secret or similar right, provided that Dyadic is promptly notified, rendered reasonable assistance by you as required, and permitted to direct the defense or settlement negotiations. Dyadic shall have no obligation to defend or indemnify any infringement claim that arises from or relates to: (i) a modification of the Software by you or any third party, (ii) a combination of the Software with other software products, components, processes or materials, (iii) your failure to incorporate or implement modifications as directed by Dyadic, (iv) third party or open source software components, (v) use of the Software in a manner inconsistent with the Documentation, or (vi) any Software provided for evaluation or trial use or marked as beta or early access. Should the use of Software by you be enjoined, or in the event Dyadic wishes to minimize its potential liability hereunder, Dyadic may, at its option, either: (i) substitute fully equivalent non-infringing software; (ii) modify the infringing Software so that it no longer infringes but remains functionally equivalent; (iii) obtain for you, at Dyadic’s expense, the right to continue use of the Software; or (iv) take back the infringing Software and refund to you pre-paid license fees applicable to the remainder of the license term. If a perpetual license has been granted, then the refund shall be calculated as the license fees paid reduced in accordance with three-year straightline depreciation. This indemnification sets forth Dyadic’s sole liability and your sole remedy for claims of infringement arising from your use of the Software.

You will, at your own expense, indemnify and hold Dyadic, and its subsidiaries and affiliates, and all officers, directors, and employees thereof, harmless from and against any and all claims, actions, liabilities, losses, damages, judgments, grants, costs, and expenses, including reasonable attorneys’ fees, arising out of any use of the Software by you, any party related to you, or any party acting upon your authorization in a manner that is not expressly authorized by this Agreement or Documentation. Your indemnification does not include claims of infringement that are covered by Dyadic’s indemnification above.

Dyadic warrants for a period of sixty (60) days from your receipt of the Software that the Software will materially conform to the Documentation. This warranty covers only problems that are reproducible and verifiable and does not cover software, or other items or any services provided by any persons other than Dyadic. Software, which has been abused, misused, damaged, modified, or subjected to unauthorized use or installation, used in a manner inconsistent with the Documentation or used with components not authorized by Dyadic, shall void this warranty. Dyadic’s sole liability (and your sole and exclusive remedy) for any breach of this warranty shall be, in Dyadic’s sole discretion, to use commercially reasonable efforts to provide you with an error-correction or workaround which corrects the reported non-conformity, or if Dyadic, in its sole discretion, determines such remedies to be impracticable within a reasonable period of time, to refund to you license fees paid.  This limited warranty does not apply for any Software provided for evaluation or trial use or marked as beta or early access.

EXCEPT AS SET FORTH ABOVE IN THIS SECTION, THE SOFTWARE AND DOCUMENTATION ARE LICENSED “AS IS,” AND DYADIC DISCLAIMS ANY AND ALL OTHER WARRANTIES, WHETHER EXPRESS OR IMPLIED, INCLUDING, WITHOUT LIMITATION, ANY IMPLIED WARRANTIES OF MERCHANTABILITY OR FITNESS FOR A PARTICULAR PURPOSE OR NON-INFRINGEMENT, TO THE EXTENT AUTHORIZED BY LAW. WITHOUT LIMITATION OF THE FOREGOING, DYADIC EXPRESSLY DOES NOT WARRANT THAT THE SOFTWARE WILL MEET YOUR REQUIREMENTS OR THAT OPERATION OF THE SOFTWARE WILL BE UNINTERRUPTED OR ERROR FREE. YOU ASSUME RESPONSIBILITY FOR SELECTING THE SOFTWARE TO ACHIEVE YOUR INTENDED RESULTS, AND FOR THE RESULTS OBTAINED FROM YOUR USE OF THE SOFTWARE. YOU SHALL BEAR THE ENTIRE RISK AS TO THE QUALITY AND THE PERFORMANCE OF THE SOFTWARE.

IN NO EVENT WILL DYADIC BE LIABLE FOR ANY CONSEQUENTIAL, INCIDENTAL OR INDIRECT DAMAGES, INCLUDING, WITHOUT LIMITATION, ANY LOSS OF DATA, OR LOSS OF PROFITS OR LOST SAVINGS, ARISING OUT OF USE OF OR INABILITY TO USE THE SOFTWARE OR DOCUMENTATION, EVEN IF DYADIC HAS BEEN ADVISED OF THE POSSIBILITY OF SUCH DAMAGES. IN NO EVENT SHALL DYADIC BE LIABLE FOR ANY DAMAGES IN EXCESS OF THE FEES PAID TO DYADIC FOR THE SOFTWARE WITHIN THE PERIOD OF TWELVE (12) MONTHS PRIOR TO ANY CLAIM ARISING.

8.1.         Governing Law and Choice of Forum. This Agreement shall be governed by and interpreted in accordance with the laws of the State of Delaware, without regard to the conflicts of law rules thereof. Any claim or dispute arising in connection with this Agreement shall be resolved in the applicable courts situated within the County of New Castle, State of Delaware. To the maximum extent permitted by law, you hereby consent to the jurisdiction and venue of such courts and waive any objections to the jurisdiction or venue of such courts. Application of the United Nations Convention on Contracts for the International Sale of Goods is excluded from this Agreement. Additionally, application of the Uniform Computer Information Transaction Act (UCITA) is excluded from this Agreement.

8.2.         Severability. If any term or provision of this Agreement is declared void or unenforceable in a particular situation, by any judicial or administrative authority, this declaration shall not affect the validity of enforceability of the remaining terms and provisions hereof or the validity or enforceability of the offending term or provision in any other situation.

8.3.         Survival. Any provisions of this Agreement that, in order to fulfill the purposes of such provisions, need to survive the termination or expiration of this Agreement, shall be deemed to survive for as long as necessary to fulfill such purposes.

8.4.         Headings. The Section headings contained in this Agreement are incorporated for reference purposes only and shall not affect the meaning or interpretation of this Agreement.

8.5.         No Waiver; Amendments. The failure of either party to enforce any rights granted hereunder or to 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. Amendments to the Agreement shall only be effective if in writing and signed by all parties.

8.6.         Assignment. You may not assign your rights under this Agreement and any attempted assignment shall be void and of no effect. Dyadic may assign its rights and obligations under this Agreement.

8.7.         United States Government Restricted Rights. The Software and Documentation are provided with Restricted Rights. Use, duplication, or disclosure by the government is subject to restrictions as set forth in subparagraph (c)(f)(ii) of the Rights in Technical Data and Computer Software clause at DFARS 252.227-7013 or subparagraphs (c) (1) and (2) of the Commercial Computer Software-Restricted Rights at 48 C.F.R. S:52.227-19, as applicable.

8.8.         Export Restrictions. THIS AGREEMENT IS EXPRESSLY MADE SUBJECT TO ANY LAWS, REGULATIONS, ORDERS, OR OTHER RESTRICTIONS ON THE EXPORT, REEXPORT OR IMPORT OF THE SOFTWARE OR DOCUMENTATION ABOUT SUCH SOFTWARE WHICH MAY BE IMPOSED FROM TIME TO TIME BY THE GOVERNMENT OF THE UNITED STATES OF AMERICA OR ANY OTHER GOVERNMENT. YOU SHALL NOT EXPORT, REEXPORT OR IMPORT THE SOFTWARE, DOCUMENTATION, OR INFORMATION ABOUT THE SOFTWARE OR DOCUMENTATION WITHOUT THE WRITTEN CONSENT OF DYADIC AND COMPLIANCE WITH SUCH LAWS, REGULATIONS, ORDERS, OR OTHER RESTRICTIONS.