Yubico Sale and License Agreement – AWS Marketplace
Updated September 1, 2022
This Yubico Sale and License Agreement for AWS Marketplace (this “Agreement”) contains terms and conditions that govern subscriptions to Yubico’s subscription products obtained through the AWS Marketplace, operated by Amazon Web Services (“AWS”). This Agreement is entered into between Yubico Inc., a Delaware corporation located at 5201 Great America Parkway, Suite 122, Santa Clara, CA 95054, U.S.A. (“Yubico”), and the entity or organization that you represent(“Customer”). This Agreement replaces and supersedes all previous agreements and other communications between Customer and Yubico relating to the subject matter of this Agreement.
You represent and warrant that you have the right, power and authority to enter into this Agreement on behalf of Customer. References herein to the “Parties” or a “Party” shall mean Customer and Yubico, as applicable.
This Agreement becomes binding and effective on Customer upon the earliest of: (1) when Customer accesses or uses Subscription Products for which you obtained subscriptions through the AWS Marketplace, (2) when you click a “Create”, “I Agree” or a similar button or check box referencing this Agreement, or (3) when you enter into a Marketplace Order (as defined below) through the AWS Marketplace.
- This Agreement governs Customer’s access and use of Yubico’s subscription-based YubiKey offerings listed on the AWS Marketplace (“Subscription Products”) in connection with a Marketplace Order placed with AWS. “Marketplace Order” means each separate order, subscription or contract for Subscription Products pursuant to this Agreement: (a) completed and submitted by Customer through the AWS Marketplace and accepted by Yubico or (b) entered into by Yubico and Customer pursuant to a private offer through the AWS Marketplace.
- For purposes of this Agreement, the term Subscription Products does not include alpha, beta other pre-commercial releases, or optional utilities for Yubico product or service (or feature of functionality of a Subscription Product), or any Yubico product or service to which Customer purchases outside of the AWS Marketplace (collectively, “Non-AWS Offerings”), which are subject to the applicable terms at https://www.yubico.com/support/terms-conditions/ unless Customer and Yubico have entered into a separate written agreement to govern such Non-AWS Offerings.
- Subscription License and Restrictions
- Subscription License and Term. Yubico grants to Customer a non-exclusive, non-transferable (except as may be expressly stated otherwise in this Agreement), worldwide, royalty-free license to use the Subscription Products during the Subscription Term for its internal non-commercial use in accordance with published specifications and subject to this Agreement and the applicable executed Marketplace Order. The licensed “Subscription Term” with respect to the Subscription Product begins on the date the Marketplace Order is executed (the date Customer accepts the Marketplace Order offer through AWS Marketplace), and the Subscription Term runs for the subscription period specified on such executed Marketplace Order. At the end of the initial Subscription Term (and each renewal term, if any), the Subscription Term will automatically renew for additional one-year terms, unless either Party provides the other Party with notice of nonrenewal at least 30 days prior to the end of the then-current term.
- Restrictions. Customer shall not: (i) modify, translate or create derivative works from the Subscription Products; (ii) disassemble, decompile, reverse engineer, perform cryptographic analysis on or otherwise attempt to derive the source code of the Subscription Products, in whole or in part, unless expressly permitted by applicable law in the jurisdiction of use despite this prohibition; (iii) disclose, publish or otherwise make publicly available any benchmark, performance or comparison tests that Customer (or a third-party contracted by Customer) run on the Subscription Products, in whole or in part; (iv) separate the firmware included in Subscription Products from the remainder of hardware or use software accompanying or embedded in Subscription Products (“Software”) on another device; (v) sell, resell, distribute, transfer, publish, disclose, rent, lend, lease or sublicense the Subscription Products or its Software (for the avoidance of doubt, if Customer is acquiring Subscription Products on behalf of a company Customer may make the Subscription Products available to Customer employees for use as well as Customer’s Affiliates and Third-Party Contractors subject to Section 2.3. below); (vi) make the functionality of the Subscription Products available to any third-party through any means, including without limitation by uploading Software to a network or file-sharing service or through any hosting, application services provider, service bureau or other type of services.
- Affiliates and Third-Party Contractors. Customer may allow its “Affiliates” to use the Subscription Products, provided that Customer shall (i) provide the Affiliate with a copy of the Agreement; (ii) ensure that the Affiliate complies with this Agreement; and (iii) be responsible for any breach by such Affiliate. “Affiliate” means any entity that Controls, is Controlled by, or is under common Control with Customer or Yubico, as applicable, where “Control” means having the power, directly or indirectly, to direct or cause the direction of the management of the entity, whether through ownership of voting securities, by contract or otherwise. If Customer contracts with a third-party contractor providing IT services solely for Customer’s benefit, they may use the Subscription Products subject to their compliance with this Agreement.
- Subscription Usage Requirements
- Users and Quantity. Customer may elect to allocate the Subscription Product among its employees, agents and contractors (collectively “Users”) provided that the amount of Users that are using or have been allocated to use the Subscription Product (“Licensed Users”) shall not exceed the amount of Licensed Users specified in the Marketplace Order. Unless Customer has purchased backup Subscription Products pursuant to Section 3.3, below, Yubico will make available to Customer a Subscription Product unit for each Licensed User. For the purposes of illustration, if Customer has 1,000 Users and licenses 600 of them, then Yubico shall make available 600 Subscription Product units to be allocated among Customer’s 600 Licensed Users. Customer may reassign a Subscription Product among its Users, provided that the total number of Users using the Subscription Products cannot exceed the number of Licensed Users.
- Additional User Licenses. If Customer wishes to purchase additional licenses for new Users during the Subscription Term, Customer may do so by paying the applicable license fee, which shall be pro-rated to be co-termed with the then-current Subscription Term. If such intended purchase is to be within six months of expiration of the then-current Subscription Term, then Yubico reserves the right to condition such purchase on the requirement to renew the Subscription Term.
- Backup Subscription Products. If Customer wishes to license additional backup Subscription Products for Licensed Users during the Subscription Term, Customer may do so by paying the applicable license fee, which shall be pro-rated to be co-termed with the then-current Subscription Term. Licenses for backup Subscription Products may be subject to additional discount. If such intended purchase is to be within six months of expiration of the then-current Subscription Term, then Yubico reserves the right to condition such purchase on the requirement to renew the Subscription Term.
- Buffer Stock. Yubico shall also make available to Customer a “Buffer Stock” that shall not exceed 5% of the amount of Customer’s licensed Subscription Products. For example, if Customer has 600 Licensed Users and has purchased an additional 200 backup Subscription Product units, then Customer will receive 30 Subscription Product units as Buffer Stock for the primary license and will receive 10 Buffer Stock Subscription Product units as Buffer Stock for the backup portion. This Buffer Stock is intended to assist Customer with its administration and re-assignment of the Subscription Products among the Licensed Users as well as to address time sensitive warranty issues.
- License Tiers; Upgrades. The Marketplace Order will specify the license tier that Customer has subscribed to and Yubico shall make available to Customer Subscription Products corresponding to the Yubico Products available in that specific license tier. Each year of the Subscription Term, Customer may elect to (1) replace up to 25% of its licensed Subscription Products, provided that, Customer ceases to use the replaced Subscription Products; or (2) pays the applicable license fees to allow either new Users to use the replaced Subscription Products or existing Licensed Users to use them as backup keys, as applicable. Purposes for replacement may include replacing lost or stolen Subscription Products, addressing employee churn, or simply upgrading. If Customer replaces Subscription Products with Subscription Products within the same license tier, such replacement shall be at no additional cost. If Customer upgrades by replacing the Subscription Products with those in a higher tier, then Customer shall be responsible for paying the increased license fee for that User the remainder of the Subscription Term. At no point during the Subscription Term can Customer downgrade a User to a lower license tier. Customer shall be responsible for all shipping related fees including but not limited to freight, duties and customs fees, as applicable for the replacement Subscription Products.
The Subscription Products are licensed not sold. All title to the Subscription Products and its Software and other Yubico intellectual property rights related to the Subscription Products such as, but not limited to, copyright, trade secrets, patents, trademarks and service marks, shall always remain with Yubico and its licensors as applicable. To the extent Customer provides any suggestions or comments related to the Subscription Products, Yubico shall have the right to retain and use any such suggestions or comments in current or future products or subscriptions, without Customer’s approval or compensation to Customer. The Parties agree that a material breach of this Agreement adversely affecting Yubico’s proprietary or intellectual property rights in the Subscription Products, including the Software, would cause irreparable injury to Yubico and its Affiliates for which monetary damages would not be an adequate remedy and that Yubico therefore shall be entitled to preliminary and permanent injunctive relief (without the requirement to post a bond) to address such a breach, in addition to any other remedies it may have hereunder or at law.
- 5. Payment and Taxes
- Payment. Customer agrees to the pricing for, and to pay all fees for use of, the Subscription Products in accordance with the Marketplace Order and this Agreement. Yubico reserves the right to terminate any Marketplace Order with no penalty or liability to Customer where AWS fails to timely pay amounts due in respect of the fees. All fees are non-refundable unless otherwise specified. For any pro-rata refunds expressly stated in this Agreement, Yubico will issue the pro-rata refund directly to AWS and any pass-through of some or all of that amount will be between AWS and Customer.
- Taxes. All fees are exclusive of taxes, levies, duties or charges imposed by government authorities (collectively, “Taxes”) and, as between the Parties, Customer shall be responsible for all sales, service, value-added, use, excise, consumption and any other Taxes on amounts payable by Customer under Marketplace Orders (other than any Taxes on Yubico’s income, revenues, gross receipts, personnel or assets).
All Subscription Products that require shipping will be shipped Free Carrier (INCOTERMS 2010 FCA) Yubico’s designated shipping point. On behalf of Customer, after 15 days from the execution of the Marketplace Order, Yubico will begin processing the shipment of Subscription Products in a single bulk shipment to Customer’s US-based shipping address listed in the Marketplace Order. If Customer has not taken shipment within 90 days of execution of the Marketplace Order, Yubico will ship the initial fulfillment to Customer’s US-based shipping address listed in the Marketplace Order and Yubico shall select the form factors at its discretion on behalf of Customer. If a US-based shipping address is not listed, Yubico will use Customer’s US-based billing address. Buffer stock and replacement Subscription Products, as described in Section 3.4 and 3.5, above, are also shipped in bulk shipments (no partial shipments).
- Limited Warranty, Exclusions, Disclaimer, Support
- Warranty. Yubico warrants that the Subscription Products will be free from defects in material and workmanship during the Subscription Term (the “Warranty Period”) (such warranty being the “Limited Warranty”). If a defect in material or workmanship arises within the Subscription Products during the Warranty Period and the Subscription Products are returned to Yubico within the Warranty Period, Yubico will, at its sole option and subject to applicable laws: (a) repair or replace any defective Subscription Products with a new or refurbished product; or (b) accept return and issue a pro-rata refund for the specific non-conforming Subscription Product unit. The Warranty Period for any repaired or replacement Subscription Products will persist through the Subscription Term. This Section 7.1 sets forth Yubico’s sole obligation and Customer’s sole remedy for any breach of this Limited Warranty.
- Exclusions. The Limited Warranty does not apply to a Subscription Product that: (a) is altered or modified, other than by Yubico; (b) is not maintained in a normal and customary fashion or is operated outside of Yubico’s recommended guidelines; (c) has been subjected to abnormal physical or electrical stress, misuse, negligence or accident; (d) has had its original serial number altered or removed, other than as a result of normal wear and tear; or (e) Yubico has provided free of charge.
- Warranty Disclaimer. EXCEPT FOR THE LIMITED WARRANTY EXPRESSLY STATED IN SECTION 7.1. ABOVE AND TO THE FULLEST EXTENT PERMITTED BY APPLICABLE LAW, THE SUBSCRIPTION PRODUCTS ARE PROVIDED “AS IS”. YUBICO AND ITS SUPPLIERS MAKE NO OTHER WARRANTIES AND EXPRESSLY DISCLAIM ALL OTHER WARRANTIES, EXPRESS OR IMPLIED, INCLUDING WITHOUT LIMITATION ANY IMPLIED WARRANTIES OF MERCHANTABILITY, FITNESS FOR A PARTICULAR PURPOSE, AND ANY WARRANTIES ARISING OUT OF COURSE OF DEALING OR USAGE OF TRADE. Yubico does not warrant that (a) the products will meet Customer’s requirements, (b) use thereof shall be uninterrupted or error-free, (c) the products or any equipment, system or network on which the Subscription Products are used will be free of vulnerability to intrusion or attack, or (d) or that all programming errors can be found in order to be corrected. Customer is solely responsible for the data, software and other content carried on Customer’s equipment, system or network on which the Subscription Products are used and for backing-up Customer’s data, software and other content. Customer agrees that its purchases are not contingent on the delivery of any future functionality or features (including future availability of Subscription Products or any new releases), or dependent on any oral or written public comments made by Yubico regarding future functionality or features.
- Support. During the Subscription Term, Customer shall receive 24/7 365 days/year Support Services for Severity 1 and Severity 2 problems in accordance with the Yubico Services Agreement located at https://www.yubico.com/support/terms-conditions/yubico-services-agreement/.
- Compliance with Laws
The Parties shall at all times comply with all applicable laws, ordinances, and regulations including but not limited to, those pertaining to anti-corruption or anti-bribery. In connection with the use and transport of the Subscription Products, including the Software, Customer shall comply with all applicable export, import, and other relevant laws of any applicable jurisdiction. Determination of the applicable law is Customer’s responsibility. Customer acknowledges and understands that the Product, including the Software, is cryptographic in nature and that it therefore is highly regulated. Customer is strictly prohibited from exporting, re-exporting or importing the Product and/or Software, regardless of method, without first complying with all applicable government use, import, and export laws, rules, regulations, and orders, and obtaining any necessary approvals or permits. Obtaining any necessary export or import approval for the Product is Customer’s responsibility.
- Privacy Notice
Yubico may process personal data provided by Customer in relation to the performance of this Agreement. Yubico shall comply with applicable data privacy laws and regulations, including but not limited the European General Data Protection Regulation 2016/679 (“GDPR”) and the California Consumer Privacy Act (“CCPA”), governing the protection of personal data in relation to its performance under this Section 9. For more information regarding our processing of personal data and Customer’s rights in relation thereto, please see Yubico’s Privacy Notice and Cookie Notice.
- Limitation of Liability
- EXCEPT FOR YUBICO’S BREACH OF ITS CONFIDENTIALITY OBLIGATIONS UNDER THIS AGREEMENT, IN NO EVENT WILL YUBICO AND ITS AFFILIATES,’ AND ITS AND THEIR SUPPLIERS,’ DISTRIBUTORS,’ RESELLERS,’ AND EMPLOYEES’ BE LIABLE FOR DAMAGES IN RESPECT OF LOST REVENUE, INCIDENTAL, PUNITIVE, EXEMPLARY, INDIRECT, SPECIAL, OR CONSEQUENTIAL DAMAGES, EVEN IF ANY OF THEM HAVE BEEN ADVISED OF THE POSSIBILITY OF SUCH DAMAGES INCLUDING, BUT NOT LIMITED TO, BUSINESS INTERRUPTION, LOST BUSINESS REVENUE, LOST PROFITS, FAILURE TO REALIZE EXPECTED SAVINGS, ECONOMIC LOSS, LOSS OF DATA, LOSS OF BUSINESS OPPORTUNITY OR ANY CLAIM AGAINST CUSTOMER BY ANY OTHER PARTY. The foregoing limitations will apply even if any warranty or remedy provided under this Agreement fails of its essential purpose. Some jurisdictions do not allow the exclusion or limitation of incidental or consequential damages, so the above limitation or exclusion may not apply to Customer.
- EXCEPT FOR A PARTY’S: (i) BREACH OF ITS CONFIDENTIALITY OBLIGATIONS UNDER THIS AGREEMENT; (ii) BREACH OF ITS INDEMNIFICATION OBLIGATIONS UNDER THIS AGREEMENT; AND/OR (iii) THE MISAPPROPRIATION OF THE OTHER PARTY’S INTELLECTUAL PROPERTY RIGHTS, IN NO EVENT WILL EITHER PARTY AND ITS AFFILIATES,’ AND ITS AND THEIR AGENTS,’ OFFICERS,’AND EMPLOYEES’ TOTAL CUMULATIVE LIABILITY RELATING TO THIS AGREEMENT OR THE USE OF THE PRODUCT AND/OR SERVICES EXCEED THE AMOUNT PAID OR PAYABLE FOR THE PRODUCT AND/OR SERVICES GIVING RISE TO THE CLAIM IN THE TWELVE MONTHS PRECEDING THE CLAIM.
- Nothing in this Agreement shall limit or exclude any Party’s liability for fraud or for death or personal injury resulting from negligence, or to the extent otherwise not permitted by law.
- IP Infringement Indemnification. Yubico will defend, indemnify and hold harmless Customer and its Affiliates, their officers, employees, shareholders and agents from and against all losses, damages, claims, liabilities and expenses to the extent that it is based upon a third-party claim that the Subscription Products, as provided by Yubico to Customer under this Agreement, infringes any U.S. patent or any copyright or misappropriates any trade secret, and will pay any costs, damages and reasonable attorneys’ fees attributable to such claim that are awarded in final judgment against Customer or are payable in settlement by Customer. As an express condition to Yubico’s obligation under this Section 11, Customer must: (i) promptly notify Yubico in writing of the claim; (ii) grant Yubico sole control of the defense and settlement of the claim; and (iii) provide Yubico, at Yubico’s expense, with all assistance, information and authority reasonably required for the defense and settlement of the claim. Yubico will not be bound by any settlement or compromise that Customer enters into without Yubico’s express prior written consent.
- Exceptions. Yubico shall have no liability for any claim of infringement if such infringement is caused by (i) modification made to the Subscription Products, provided that the unmodified Subscription Products are non-infringing, or (ii) use or combination of the Subscription Products with third-party products, processes, methods or technologies not recommended in writing by Yubico; provided that the Subscription Products alone are non-infringing.
- Remedy. Upon notice of an alleged infringement, or upon Yubico’s conclusion that such a claim is likely, Yubico shall have the right, at its option, to obtain the right for Customer to continue the usage of Subscription Products and/or Services or modify the Subscription Products so they are no longer infringing. If none of the above are reasonably available in Yubico’s sole opinion, Yubico may terminate this Agreement with respect to the affected Subscription Products, Customer shall cease using and return the affected Subscription Products, and Customer may be entitled to a pro-rata refund of pre-paid fees corresponding to the amount of the affected Product and corresponding to the remaining subscription term starting at the date the affected Product is no longer permitted to be used by Customer.
- Definition. As used in this Agreement, “Confidential Information” means any information disclosed by one Party, its Affiliates, business partners or their respective employees, agents or contractors (collectively, the “Discloser”) that is designated as confidential, either orally or in writing, or that, given the nature of the information or circumstances surrounding its disclosure, reasonably should be understood to be confidential. Confidential Information includes without limitation: (a) information relating to the Discloser’s or its Affiliates’ technology, customers, business plans, promotional and marketing activities, finances and other business affairs; and (b) third-party information that the Discloser is obligated to keep confidential. However, Confidential Information does not include any information that: (i) was known to the Party that receives any Confidential Information (the “Recipient”) prior to receiving the same from the Discloser in connection with this Agreement; (ii) is independently developed by the Recipient without reference to or use of the Discloser’s Confidential Information; (iii) is acquired by the Recipient from another source without restriction as to use or disclosure; or (iv) is or becomes publicly available through no fault or action of the Recipient.
- Obligations. The Recipient shall not (a) use the Discloser’s Confidential Information for any purpose outside the scope of this Agreement without the Discloser’s prior written consent or (b) disclose the Discloser’s Confidential Information to any person or entity, except to AWS for the sole purpose of supporting account billing pursuant to this Agreement or to the Recipient’s employees, agents, contractors and service providers who (i) are bound by non-use and non-disclosure obligations at least as protective as those contained in this Agreement and (ii) have a need to know the Confidential Information for the Recipient to exercise its rights or perform its obligations under this Agreement. Notwithstanding the foregoing, the Recipient may disclose the Discloser’s Confidential Information to the limited extent any use or disclosure is required by applicable law or a valid and binding order of a governmental body (such as a subpoena or court order), provided that, to the extent permitted under Applicable Law, the Recipient uses reasonable efforts to give the Discloser reasonable advance notice thereof to afford the Discloser an opportunity to intervene and seek an order or other appropriate relief for the protection of its Confidential Information. In the event of any breach or threatened breach by the Recipient of its obligations under this Section, the Discloser will be entitled to seek injunctive and other equitable relief to enforce such obligations.
- Term and Termination
- Term. The term of this Agreement will continue through the expiration or earlier termination of the last Marketplace Order to be in effect.
- Termination. A non-breaching Party may terminate this Agreement and/or a Marketplace Order for cause if the other Party materially breaches this Agreement and such breach remains uncured after 30 days’ notice of such breach. If Customer terminates a Marketplace Order for cause due to Yubico’s uncured material breach, upon such termination Yubico will issue a pro-rata refund of pre-paid fees corresponding to the remaining Subscription term. If Customer terminates a Marketplace Order for any reason other than for cause as stated in the preceding sentence, Customer shall remain liable to pay any outstanding fees as contracted in the Marketplace Order. Notwithstanding the forgoing, Yubico may terminate this Agreement and/or a Marketplace Order with immediate effect if Customer: (i) misappropriates Yubico’s intellectual property rights, reverse engineers the Subscription Products or materially misuses the license granted under this Agreement; or (ii) in the event Customer becomes insolvent or makes an assignment of this Agreement for the benefit of creditors or if any other bankruptcy proceedings are commenced by or against Customer.
- Post Termination Obligations. Promptly upon the expiration or earlier termination of the Subscription Term, Customer shall cease using the Subscription Products for any of its business purposes, internal or external, including but not limited for any usage with its enterprise applications. Upon Yubico’s request, a Customer senior executive shall certify in writing to Yubico that the Subscription Products are no longer being used for any of the above-mentioned purposes. Customer understands and agrees that continued use of Subscription Products in this manner after the expiration and/or termination is unlicensed usage of software and Yubico’s proprietary rights. Customer represents and warrants that it shall adhere to these post-termination obligations and shall not continue to use the Subscription Products, transfer, sell or resell such Subscription Products in this manner. Notwithstanding the foregoing, upon such expiration or termination, Customer may allow its Users to retain the Subscription Products for their individual personal non-commercial usage.
- Changes; Amendments and Modifications
Yubico may modify this Agreement at any time by posting a revised version to the AWS Marketplace, which modifications will become effective immediately upon the start of the next renewal term, if any. In either case, if Customer objects to the updated Agreement, as its sole and exclusive remedy, Customer may choose not to renew, including canceling through the AWS Marketplace any terms set to auto-renew. For the avoidance of doubt, each Marketplace Order is subject to the version of the Agreement in effect at the time of the Marketplace Order. Privacy Notice and Cookie Notice may be changed from time to time in accordance with what is stated therein.
- Choice of Law and Venue
This Agreement shall be deemed to have been made in, and shall be construed pursuant to the laws of the State of California, U.S.A. The choice of law shall be without regard to the conflict of laws provisions thereof. Furthermore, both Parties consent to the exclusive jurisdiction of the Federal and State courts located in Santa Clara County in the State of California.
The terms and conditions set forth or referenced herein constitute the entire understanding and agreement between Customer and Yubico and supersede all prior representations and agreements with respect to the subject matter herein. This Agreement, including all rights and licenses granted herein, is not assignable, transferable or sub-licensable by Customer and any attempt to do so shall be null and void. Neither Party shall assign this Agreement without the prior written consent of the other Party. Notwithstanding the foregoing, upon notice, either Party may assign this Agreement to any entity that acquires all or substantially all of the business and/or assets of such Party, to any entity that acquires more than fifty percent of the equity securities of such Party, and/or to the surviving entity in a merger to which such Party is a merged entity. This Agreement shall be binding upon and shall inure to the benefit of the Parties and their respective successors, and permitted assigns. Any notice, report, approval or consent required or permitted hereunder must be in writing. The waiver by Yubico of a breach of this Agreement shall not constitute a waiver of any subsequent breach of this Agreement; nor shall any delay by Yubico to exercise any right under this Agreement operate as a waiver of any such right. If any provision of this Agreement shall be adjudged by any court of competent jurisdiction to be unenforceable or invalid, that provision shall be limited or eliminated to the minimum extent necessary so that this Agreement shall otherwise remain in full force and effect. If Customer has any questions regarding this Agreement, Customer may contact Yubico on our support site at https://support.yubico.com/support/home. If Customer wishes to send us a legal notice, please start the subject line of Customer’s support request with “Attention: Legal Department”.