Yubico Professional Services Agreement

1.1 Scope. This Professional Services Agreement shall govern Yubico’s provisioning of Professional Services. The purchase and licensing of Yubico products (“Products”) shall be governed by the YubiEnterprise Subscription License Agreement, Yubico Sale and License Agreement or other written purchase agreement separately agreed upon by the parties (“Purchase Agreement”) and not this Professional Services Agreement.

1.2 Performance of Services. Subject to Customer’s payment of the applicable fees (which may include Professional Services fees, if purchased pursuant to an Order Form), Yubico will perform the Professional Services specified in the Yubico sales order form (“Order Form”) or the YubiEnterprise Subscription Professional Services Redemption Form (“Redemption Form”) in accordance with the terms and conditions of this Professional Services Agreement and in accordance with any Statement of Work agreed upon between the parties.

1.3 Designated Contacts. Each party will designate one or more individuals who will serve as the point(s) of contact between the parties for all matters relating to Professional Services to be performed thereunder. A party may designate new contacts by written notice to the other party.

1.4 Relationship of the Parties. Yubico is performing Professional Services as an independent contractor and nothing in this Professional Services Agreement will be construed as establishing an employment, agency, partnership or joint venture relationship between Customer and Yubico or any Yubico personnel.

1.5 Professional Services Hours. 

(a)General. If an Order Form or Redemption Form includes a Professional Services Hours Bundle or a Professional Services engagement that includes Professional Services hours, usage of such hours shall be deducted in 15-minute increments. Any remote live hours must be scheduled in advance with Yubico. Customer may purchase additional hours after the allotted hours have been utilized. Professional Services hours may be utilized by Customer to have Professional Services review, analyze and consult on Customer’s technical implementation/integration or operational deployment issues and existing materials; they cannot be utilized however to have Professional Services create new documentation or materials. Any material or documentation development requires a separate Professional Services engagement. 

(b)Effective Date and Expiration of Hours. The Professional Services hours start date shall be the Effective Date (as defined below) of the Order Form. Customer must use all Professional Services hours within a 12-month period from the Effective Date; there is no roll-over of hours and any remaining hours at the end date of the time period shall expire. For clarity purposes, “Effective Date” shall be the date as specified on the Order Form and/or Statement of Work and if no date is specified, the date of the last signature date. Notwithstanding the foregoing, in the event the Professional Services hours is redeemed via VIK Funds (as set forth in Section 1.10 (Professional Services) of the YubiEnterprise Subscription License Agreement), then the Effective Date uses the 12-month period that begins using the date of the Subscription Service transaction.

1.6 Professional Services Engagements. If an Order Form includes any Professional Services engagement (which excludes Professional Services Hours), Customer must schedule the engaged services such that the completion of such engaged services will be within six months of the Effective Date of the Order Form, otherwise Yubico is under no obligation to provide the engaged services for Customer. Notwithstanding the foregoing, in the event the Professional Services engagement (excluding Professional Services Hours) is redeemed via VIK Funds (as set forth in Section 1.10 (Professional Services) of the YubiEnterprise Subscription License Agreement), then the Effective Date uses the 6-month period that begins using the date of the Subscription Service transaction.

2.1 Fees. For Yubico’s performance of the Professional Services, Customer will pay Yubico fees as specified in the Order Form and in accordance with the terms set forth in the applicable Statement of Work.

2.2 Interest. All past due amounts will incur interest at a rate of 1.5% per month or the maximum rate permitted by law, whichever is greater. Customer will reimburse Yubico for all reasonable costs and expenses incurred (including reasonable attorneys’ fees) in collecting any overdue amounts.

2.3 Payment Terms and Taxes. Unless stated otherwise in a Statement of Work, fees for Professional Services will be paid upfront at the time of purchase. Customer will pay all amounts due under this Professional Services Agreement in U.S. currency. All fees, expenses and other amounts payable to Yubico hereunder are net amounts and are payable in full, and do not include any sales, use, withholding, value added or other applicable taxes, tariffs, duties, or out-of-pocket expenses, payment of which will be the sole responsibility of Customer (excluding any taxes based on Yubico’s net income). Customer will promptly reimburse Yubico for any such amounts that Yubico pays on Customer’s behalf.2.4 Expenses. Unless otherwise provided in a Statement of Work, Customer will also reimburse Yubico for all pre-approved reasonable and customary out-of-pocket travel, lodging and related expenses incurred by Yubico in connection with Yubico’s performance of Professional Services. At Customer’s request, Yubico will furnish Customer with copies of receipts and other customary documentation for any expenses for which Yubico requests reimbursement hereunder.

3.1 Definition. “Confidential Information” means: (a) all aspects of the Product and Professional Services; (b) all documentation marked “Do Not Copy” or “Yubico Confidential;” (c) any business or technical information of Yubico or Customer that, if disclosed in writing, is marked “confidential” or “proprietary” at the time of disclosure, or, if disclosed orally, is identified as “confidential” or “proprietary” at the time of disclosure, and is summarized in a writing sent by the disclosing party to the other party within 30 days of such disclosure; (d) the specific terms and pricing set forth in this Professional Services Agreement and any corresponding Statements of Work; (e) Customer materials and Yubico materials; and (f) any information that, due to its nature or under the circumstances of its disclosure, the receiving party knows or has reason to know should be treated as confidential or proprietary.

3.2 Exclusions. Confidential Information does not include information that: (a) is or becomes generally known to the public through no fault of or breach of this Professional Services Agreement by the receiving party; (b) is rightfully known by the receiving party at the time of disclosure without an obligation of confidentiality; (c) is independently developed by the receiving party without use of the disclosing party’s Confidential Information; or (d) the receiving party rightfully obtains from a third party without restriction on use or disclosure.

3.3 Use and Disclosure Restrictions. Each party will not use the other party’s Confidential Information except as necessary for the performance of this Professional Services Agreement and will not disclose such Confidential Information to any third party except to those of its employees and subcontractors that need to know such Confidential Information for the purpose of performing this Professional Services Agreement, provided that each such employee and subcontractor is subject to a written agreement that includes binding use and disclosure restrictions that are at least as protective as those set forth herein. Each party will use all reasonable efforts to maintain the confidentiality of all such Confidential Information in its possession or control, but in no event less than the efforts that such party uses with respect to its own proprietary information of similar nature and importance.

3.4 Compelled Disclosures. The foregoing obligations will not restrict either party from disclosing Confidential Information of the other party: (a) pursuant to the order or requirement of a court, administrative agency, or other governmental body, provided that the party required to make such a disclosure, to the extent permissible under applicable law, gives reasonable notice to the other party to contest such order or requirement; and (b) on a confidential basis to its legal or financial advisors. In addition, each party may disclose the terms and conditions of this Professional Services Agreement: (x) as required under applicable securities regulations; and (y) on a confidential basis to present or future providers of venture capital and/or potential private investors in or acquirers of such party.3.5 Intellectual Property. With the exception of Customer’s underlying and pre-existing intellectual property used to create the Deliverables (as defined below), Yubico will own all right, title and interest in and to the Deliverables. The term “Deliverables” shall mean any deliverables created by Yubico during the performance of the Professional Services, whether published or unpublished. Yubico grants to Customer and its Affiliates a revocable, worldwide, royalty-free, non-exclusive, non-transferable, limited, right and license to use, execute or copy the Deliverables during the applicable license term solely for Customer’s internal business purposes and solely in connection with Customer’s use of the Professional Services.

EXCEPT FOR THE LIMITED WARRANTIES AS SET FORTH IN THIS PROFESSIONAL SERVICES AGREEMENT, YUBICO DISCLAIMS ALL OTHER WARRANTIES, REPRESENTATIONS OR CONDITIONS, EXPRESS OR IMPLIED, INCLUDING ANY IMPLIED WARRANTIES OF MERCHANTABILITY, FITNESS FOR A PARTICULAR PURPOSE AND NONINFRINGEMENT. NO ADVICE OR INFORMATION, WHETHER ORAL OR WRITTEN, OBTAINED FROM YUBICO OR ELSEWHERE WILL CREATE ANY WARRANTY NOT EXPRESSLY STATED IN THIS PROFESSIONAL SERVICES AGREEMENT.

IN NO EVENT WILL YUBICO BE LIABLE TO CUSTOMER OR TO ANY THIRD PARTY FOR ANY SPECIAL, INCIDENTAL, PUNITIVE, EXEMPLARY OR CONSEQUENTIAL DAMAGES (INCLUDING LOSS OF USE, DATA, BUSINESS OR PROFITS) OR FOR COSTS OF PROCURING SUBSTITUTE PROFESSIONAL SERVICES, ARISING OUT OF OR IN CONNECTION WITH THIS PROFESSIONAL SERVICES AGREEMENT OR THE PROFESSIONAL SERVICES, OR THE USE OR PERFORMANCE OF THE PROFESSIONAL SERVICES, HOWEVER CAUSED A/ND REGARDLESS OF THE THEORY OF LIABILITY, EVEN IF YUBICO HAS BEEN ADVISED OF THE POSSIBILITY OF SUCH DAMAGES. YUBICO’S TOTAL LIABILITY TO CUSTOMER, FROM ALL CAUSES OF ACTION AND ALL THEORIES OF LIABILITY, WILL BE LIMITED TO AND WILL NOT EXCEED THE AMOUNTS PAID TO YUBICO BY CUSTOMER UNDER THE STATEMENT OF WORK GIVING RISE TO ANY LIABILITY HEREUNDER.

6.1 Term. This Professional Services Agreement will commence on the Effective Date and, unless terminated earlier in accordance with the terms of this Professional Services Agreement or pursuant to an Order Form, Statement of Work, or Redemption Form as applicable, will remain in force and effect for as long as Yubico is performing Professional Services pursuant to any Order Form Statement of Work, or Redemption Form.

6.2 Termination. Either party may terminate this Professional Services Agreement (including all Statements of Work in Order Forms) if the other party breaches any material term of this Professional Services Agreement or Statement of Work and fails to cure such breach within 30 days after receipt of written notice of such breach. Termination of the Purchase Agreement will terminate this Professional Services Agreement and all Statements of Work in Order Forms.6.3 Effect of termination; Survival. Upon termination of this Professional Services Agreement: (a) Customer will promptly (i) return to Yubico the applicable portions of the Professional Services not owned by Customer and all related copies and portions; and (ii) return or destroy all Confidential Information of Yubico to Yubico;; and (iii) Customer will, within 30 days after receipt of Yubico’s invoice, pay all accrued and unpaid fees and expenses and (b) Yubico will promptly (i) deliver to Customer all Deliverables or other work products (and any unfinished portions thereof) pursuant to any currently active Statements of Work, as applicable; (ii) return to Customer all Customer materials, and (iii) return or destroy all Confidential Information of Customer to Customer. The rights and obligations of the parties contained in Sections 2, 3, 4, 5, 6, 7.2 and 7.3 will survive the expiration or termination of this Agreement or any Statement of Work.

7.1 Assignment. Neither party may assign this Professional Services Agreement, in whole or in part, without the other party’s express prior written consent, such consent not to be unreasonably withheld, except that either party may assign this Professional Services Agreement in connection with a merger with or into a third party or to an acquirer of all or substantially all of its stock, business or assets to which this Professional Services Agreement pertains. Any attempt to assign this Professional Services Agreement, without such consent, will be null and of no effect. Subject to the foregoing, this Professional Services Agreement will bind and inure to the benefit of each party’s successors and permitted assigns.

7.2 Governing Law and Jurisdiction. 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 you obtained the Professional Services from Yubico, Inc.; and (ii) Sweden if you obtained the Professional Services 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 courts located in the State of California when California law applies, and the courts located in Sweden when the laws of Sweden apply.

7.3 Severability and Waiver. If any provision of this Agreement is held invalid or unenforceable by a court of competent jurisdiction, then such provision shall be deemed severed from this Professional Services Agreement and shall not affect the other remaining provisions. The failure by either party to enforce any provision of this Professional Services Agreement will not constitute a waiver of future enforcement of that or any other provision.

7.4 Notices. All notices required or permitted under this Professional Services Agreement will be in writing and delivered by courier or overnight delivery services, by email, or by certified mail, and in each instance will be deemed given upon receipt. All communications will be sent to the addresses set forth above or to such other address as may be specified.

7.5 Entire Agreement. This Professional Services Agreement, together with all Order Forms, Redemption Forms and Statements of Work, constitutes the complete agreement and understanding of the parties with respect to its subject matter and supersedes all prior understandings and agreements, whether written or oral, with respect to its subject matter. No term of any Order Form or Statement of Work will be deemed to amend the terms of this Professional Services Agreement unless the Order Form or Statement of Work references a specific provision in this Professional Services Agreement and provides that the Order Form or Statement of Work is amending only that specific provision of this Professional Services Agreement and only with respect to the Professional Services performed pursuant to such Order Form or Statement of Work. Any waiver, modification or amendment of any provision of this Professional Services Agreement will be effective only if in writing and signed by the parties.

7.6 Force Majeure. Neither party will be responsible for any failure or delay in its performance under this Professional Services Agreement (except for any payment obligations) due to causes beyond its reasonable control, including, but not limited to, labor disputes, strikes, lockouts, shortages of or inability to obtain labor, energy, raw materials or supplies, war, acts of terror, riot, acts of God or governmental action.