Yubico Enterprise Sales and License Agreement for Direct and Channel Purchases
YUBICO ENTERPRISE SALES AND LICENSE AGREEMENT
FOR DIRECT SALES AND CHANNEL PURCHASES
PLEASE READ THE FOLLOWING TERMS AND CONDITIONS BEFORE LICENSING OR USING YUBICO’S OFFERINGS (AS DEFINED BELOW).
THE TERMS AND CONDITIONS OF THE AGREEMENT (AS DEFINED BELOW) IS AN AGREEMENT BETWEEN YOU (REFERRED TO HEREIN AS “CUSTOMER”) AND YUBICO AND GOVERNS CUSTOMER’S USAGE OF THE OFFERINGS.
“YUBICO” MEANS: YUBICO, INC., 5201 GREAT AMERICA PARKWAY, SUITE #122, SANTA CLARA, CA 95054, U.S.A. IF CUSTOMER IS ACQUIRING THE SUBSCRIPTION SERVICE IN THE AMERICAS; AND YUBICO AB, GAVLEGATAN 22 113 30 STOCKHOLM, SWEDEN, IF CUSTOMER ARE ACQUIRING THE SUBSCRIPTION SERVICE OUTSIDE OF THE AMERICAS. REFERENCES HEREIN TO THE “PARTIES” OR A “PARTY” SHALL MEAN CUSTOMER AND YUBICO, AS APPLICABLE.
This is a legally binding agreement between Customer and Yubico. By using the Offerings or clicking “Agree”, as applicable, Customer is stating that it fully understands, agrees to be bound by and accepts all the terms and conditions of the Agreement (the date of such acceptance being the “Effective Date”). If you are accepting this Agreement on behalf of a company, you represent that you are authorized to do so.
1. Scope of Terms and Optional Items
a) Scope of Terms. Customer’s purchase, licensing and usage of Yubico’s Products, Subscription Services, and Services (as defined below), (collectively “Offerings”) is governed by: (i) this Yubico Enterprise Sales and License Agreement for Direct Sales and Channel Purchases; (ii) the Offering-specific terms and conditions set forth in the applicable Offering Schedules, including the Product Schedule, Subscription Schedule, Priority Support Schedule and/or the Professional Services Schedule; (iii) the Yubico ordering document Customer executed or agreed to, if applicable (“Order Form”); (iv) and any statement of work (“SOWs”). Collectively, these documents constitute the “Agreement”.
Offering Schedules only apply for the Offerings that Customer is purchasing, licensing or using. Terms not defined herein shall have the same meaning set forth in the applicable Offering Schedule. Customer agrees that its purchases and licensing are not contingent on the delivery of any future functionality or features (including future availability of Offerings, features or any new releases), or dependent on any oral or written public comments made by Yubico regarding future functionality or features. Offerings are generally defined as follows: (i) “Products” refer to Yubico’s hardware, including but not limited to YubiKey and YubiHSM Products (collectively “Hardware”), and the Yubico Validation Services; (ii) “Subscription Services” refers to YubiKey as a Service offerings including Yubico’s hardware as a service subscription; (iii) “Services” refers to Yubico’s priority technical support services (“Priority Support”) and professional services (“Professional Services”).
b) Optional Items. From time-to-time, Yubico at its sole discretion, may make available to Customer optional items including but not limited to (i) optional Software Utilities (defined below) and beta software for supporting the usage of the Offerings; and (ii) pre-release Offerings (collectively “Optional Items”). Unless a particular Optional Item includes its own separate and specific terms and conditions, this Agreement shall govern the usage of Optional Items. Conditioned upon Customer’s compliance with the terms and conditions of this Agreement, Yubico grants Customer a non-exclusive and non-transferable license to use the Optional Items solely in executable form and solely for Customer’s internal business purposes of supporting the Offerings, and in the case of pre-release Offerings, for evaluation purposes. Optional Items are not fully tested by Yubico and may include significant issues. Customer acknowledges that Optional Items are likely to present risks associated with their use. Yubico strongly recommends that Customer backs up all its data prior to using optional items from any source. Notwithstanding anything to the contrary in this Agreement, Optional Items are provided “as is”, and do not carry any warranties or maintenance or support; similarly, in no event shall Yubico be liable for any damage arising from the use of Optional Items.
2. Affiliates and Third-Party Contractor Usage. Customer may allow its Affiliates (as defined below) to use the Offerings, 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 an entity that, directly or indirectly, controls, is controlled by, or is under common control with a party to this Agreement, but only for so long as such control exists, and where “control” shall mean ownership of more than 50% of the stock or other equity interests entitled to vote for the election of directors or an equivalent governing body. If Customer contracts with a third-party contractor providing IT services solely for Customer’s benefit, they may use the Offerings subject to their compliance with this Agreement.
3. Ownership. Offerings may include object code software deployed onto secure Hardware prior to delivery to Customer (“Firmware”) and/or separately provided software for use with Hardware (“Software Utilities”) (collectively, such Firmware and Software Utilities being “Software”). Software is licensed not sold. All title to the Software and other Yubico intellectual property rights related to the Software 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 Offerings, Yubico shall have the right to retain and use any such suggestions or comments in current or future Offerings, 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 Offerings, 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.
4. Priority Support and Professional Services. If Customer has not purchased Priority Support or Professional Services (collectively, “Services”), then Yubico will have no obligation to provide Services to Customer. If Yubico, in its sole discretion, elects to provide Priority Support to assist Customer, it is provided on an “as is” basis without any warranties, service levels or obligations; similarly, in no event shall Yubico be liable for any damage arising from providing such discretionary technical support services. Services purchased by Customer, or provided as an entitlement, shall be subject to the applicable Service Schedules.
5. Disclaimer. EXCEPT FOR THE LIMITED WARRANTIES EXPRESSLY STATED IN OFFERING SCHEDULES, IF ANY, AND TO THE FULLEST EXTENT PERMITTED BY APPLICABLE LAW, THE OFFERINGS 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 Offerings will meet Customer’s requirements, (b) use thereof shall be uninterrupted or error-free, (c) the Offerings or any equipment, system or network on which the Offerings 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 Offerings are used and for backing-up Customer’s data, software and other content.
6. Payment, Taxes, and Delivery.
a) Reseller Purchases. The entirety of Section 6 does not apply to Customer if Customer purchased Offerings from a Yubico authorized distributor or reseller. All commercial terms, including but not limited to payment, taxes, and delivery shall be determined and settled between Customer and such distributor or reseller.
b) Yubico Direct Sales
i. Payment. If Customer is purchasing from Yubico by entering into a written Order Form or Statement of Work (“SOW”), Customer will pay Yubico the total fees specified in the Order Form or SOW. Fees will be due 30 days from invoice date, provided that Yubico reserves the right in its sole discretion to require prepayment from Customer if Customer does not have a well-established transaction history with Yubico or if Customer for instance has exhibited questionable credit worthiness or have failed to adhere to payment terms for prior Yubico purchases. In addition, Customer understands and accepts that Yubico may at any time sell any outstanding debt to a third party. Further, Yubico reserves the right to require payment be made by electronic means including but not limited to ACH/EFT or wire transfer. All sums that are past due will accrue interest at the highest rate permissible by applicable law and Customer will reimburse Yubico for all reasonable costs and expenses incurred (including reasonable attorneys’ fees) in collecting any overdue amounts. All fees are non-refundable unless otherwise specified. Prices quoted are exclusive of all sales, use, value-added, good and services, withholding and other taxes or duties. Invoicing schedules are set out in the applicable Offering Schedules.
ii. Taxes. Customer will pay or self-assess all taxes and duties assessed in connection with this Agreement and its performance, except for taxes payable on Yubico’s net income. To the extent that any amounts payable by Customer are subject to withholding taxes, the amount payable shall be grossed up such that the amount paid to Yubico’s net of withholding taxes equals the amount invoiced by Yubico. If Customer pays any withholding taxes based on payments made by Customer to Yubico hereunder, Customer will furnish Yubico with written documentation of all such tax payments, including receipts and other customary documentation, to demonstrate to the relevant tax authorities that Customer has paid such taxes. If applicable, Customer shall also provide Yubico with appropriate VAT/GST registration numbers and other documentation satisfactory to the applicable taxing authorities to substantiate any claim of exemption from any tax or duties.
iii. Transaction Entities. If Customer is making global purchases from Yubico (i.e. purchases both in the Americas and outside of the Americas), by entering into this Agreement, Customer on behalf of its Affiliates, agree that Yubico and its regional Affiliates may invoice Customer’s respective regional Affiliates that are benefiting from the Offerings in the joint effort of increasing tax efficiencies as permitted by applicable law and to adhere to established accounting practices. Customer represents that it is authorized to bind its regional Affiliates to being invoiced by Yubico and its regional Affiliates. When fulfilling delivery requests for such Regional Affiliates, Yubico may require such Regional Affiliates to complete a fulfillment request form or similar document for formalizing order confirmation.
iv. Delivery. Unless stated otherwise in an Offering Schedule, all Offerings that require shipping will be shipped Ex Works (INCOTERMS 2020 EXW) Yubico’s designated shipping point. Customer will be responsible for shipping expenses and will arrange to have Customer’s carrier pick up and deliver Customer purchased Offerings.
7. Compliance with Laws.
a) General. 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.
b) Export. In connection with the use and transport of the Offerings, 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 Offering, 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 Offering 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 Offering is Customer’s responsibility.
8. 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 8. 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.
9. Limitation of Liability.
a) 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.
b) 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 OFFERING EXCEED THE AMOUNT PAID OR PAYABLE FOR THE OFFERING GIVING RISE TO THE CLAIM IN THE TWELVE MONTHS PRECEDING THE CLAIM.
c) 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.
10. Term and Termination.
a) The term of this Master Agreement shall commence on the Effective Date and shall continue until terminated as set forth below, however, Yubico’s Privacy Notice and Cookie Notice may remain in effect even after expiry or termination of the Agreement.
b) This Agreement is effective until terminated or, as applicable, in accordance with the specified term expressly set forth otherwise. The non-breaching Party may terminate this Agreement for cause if the other Party materially breaches this Agreement and such breach remains uncured after thirty (30) days’ notice of such breach. Notwithstanding the forgoing, Yubico may terminate this Agreement with immediate effect if Customer i) misappropriates Yubico’s intellectual property rights, reverse engineers the Offerings 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. Upon termination, Customer shall immediately cease using the Offerings.
11. Force Majeure. Neither party will be liable for any delay or failure to perform its obligations (other than payment obligations) to the extent caused by events beyond its reasonable control, including acts of God, natural disasters, epidemics, pandemics, public health emergencies, quarantine restrictions, war, terrorism, civil unrest, labor disputes or strikes (including those affecting a party’s suppliers or subcontractors), embargoes, sanctions, governmental actions or orders, shortages of materials, utilities or telecommunications failures, malicious attacks, widespread cloud or hosting provider outages or any other similar causes outside of the party’s control (each, a “Force Majeure Event”). A party affected by a Force Majeure Event may suspend performance for the duration of the Force Majeure Event and a reasonable recovery period thereafter, and all impacted deadlines and service levels will be extended accordingly without breach or liability. The affected party will provide prompt written notice describing the Force Majeure Event in detail and its expected duration and will use commercially reasonable efforts to mitigate the effects and resume performance as soon as practicable.
12. Changes; Amendments and Modifications. The Yubico Privacy Notice and Cookie Notice may be changed from time to time in accordance with what is stated therein. No amendment, modification or supplement of any provision of this Agreement shall be valid or effective unless made in writing and signed by a duly authorized signatory of each party. It is expressly agreed that the terms of the Agreement shall supersede the terms in Customer’s purchase order, and the terms included in any such purchase order or Customer’s other policy shall not (i) apply to the Offerings; or (ii) in any way modify, revise, supplement, or otherwise affect the terms and conditions of the Agreement.
13. Choice of Law and Venue. This Agreement shall be deemed to have been made in, and shall be construed pursuant to the laws of: (i) the State of California, U.S.A. if Customer obtained the Offerings from Yubico, Inc.; and (ii) Sweden if Customer obtained the Offerings from Yubico AB. In either event, 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 when California law applies and the courts located in Sweden, with Stockholm District Court as the court of first instance, when the laws of Sweden apply.
14. Order of Precedence. In the event of a conflict between any parts of this Agreement not resolved expressly by its terms, the following order of precedence will apply: (i) the applicable Schedule for affected Offerings; (ii) the Master Agreement and related Amendments or Addendums; (iii) an Order Form; and (iv) an SOW as applicable.
15. Notices. All notices, requests, consents, waivers, and other communication under this Agreement must be in writing.
16. Survival. The following provisions will survive termination or expiration of this Agreement and will remain in full force and effect: (i) Section 3 (Ownership), (ii) Section 5 (Disclaimer), (iii) Section 6 (Payment, Taxes, and Delivery), (iv) Section 7 (Compliance with Laws), (v) Section 8 (Privacy Notice), (vi) Section 9 (Limitation of Liability), (vii) Section 13 (Choice of Law and Venue), and (viii) any other provisions that by their nature are intended to survive termination or expiration will also remain enforceable.
17. Other.
a) 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.
b) 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”.
c) Publicity. Yubico may refer to Customer as part of Yubico’s customer lists and in connection with such efforts, may use Customer’s name, logos, and related marks in publishing such customer lists. If Customer does not approve or consent to such usage, Customer may revoke its approval or consent by notifying Yubico via the support site as explained below. Aside from being included on customer lists, Yubico will not use Customer’s entity’s name, logo, or related marks in press releases or other similar marketing without Customer’s written consent.
d) The parties may execute this Agreement in counterparts, which taken together will constitute one instrument. A copy of this Agreement or any amendment hereto signed and delivered by electronic transmission, including PDF or other scanned copies transmitted via email, will be deemed to have the same legal force and effect as delivery of an original executed copy of this Agreement. Each party agrees that electronic and scanned signatures will be treated as original signatures.