YubiEnterprise Subscription License Agreement

1.1. General. The Subscription Service is a licensed offering allowing Customers to use YubiEnterprise authentication services and solutions for securing access of IT systems, applications, and online services in Customer environments. During the Subscription Term (as defined in Section 1.2. below), Customer shall receive access to the YubiEnterprise Console which Customer may use for managing its Subscription Service entitlements, including but not limited to allocating YubiKey subscription units (“License Unit(s)”) to Customer’s licensed employees, agents and contractors (“Licensed Users”). In enabling Licensed Users to receive Subscription Service features, License Units are to be allocated to such Licensed Users. For Customer’s first-time access to the YubiEnterprise Console, Customer is to contact their assigned Customer Success Manager.

1.2. Subscription Term. The licensed “Subscription Term” for the Subscription Service begins on the later occurring date between (A) the subscription start date stated on the Order Form (“Start Date”); and (B) 14 calendar days from date the Order Form is fully executed if this occurs after the Start Date or if there is no Start Date stated on the Order Form (and in the case of a channel partner transaction, 14 calendar days from the date the applicable Order Form is accepted by Yubico), and the Subscription Term runs for the subscription period specified on such executed Order Form. At the end of the initial Subscription Term (and each renewal term, if any), the Subscription Term will automatically renew for additional periods equivalent to the initial term, unless either party provides the other party with notice of nonrenewal at least 30 days prior to the end of the then-current term. “Subscription Term” shall refer to the initial term or any renewal term, as applicable. In the event that the Subscription Term lapses for any period due to non-renewal or failure to pay applicable fees when due, Customer will lose its rights to continue using the Subscription Services and all related entitlements, including but not limited to usage of the License Units. The rights to continue using the Subscription Services may be reinstated upon Customer’s payment of applicable reinstatement fees, any amounts that are past due, and entering into an agreed upon Subscription renewal, as applicable.

1.3. Users and Quantity.  Customer must procure licenses for each of its Licensed Users who are to access the Subscription Service, including any such users who are to be allocated a License Unit as part of the Subscription Service. Unless Customer has ordered a Backup License Unit pursuant to Section 1.6., below, Yubico will make available to Customer a License Unit for each Licensed User as specified as the license quantity in the Order Form. For the purposes of illustration, if Customer has 1,000 employees and licenses 600 of them, then Yubico shall make available 600 License Units to be allocated among Customer’s 600 Licensed Users. Customer may reassign a License Unit among its personnel, provided that: (i) the total number of users using the Subscription Service cannot exceed the number of Licensed Users it has procured licenses for from time to time; (ii) it will not allow any License Unit to be used by more than one individual Licensed User at any time unless it has been reassigned in its entirety in which case the prior Licensed User shall no longer have any right to use such License Unit. In relation to Licensed Users, Customer undertakes that it shall maintain a written, up-to-date list of current Licensed Users and provide such a list to Yubico within 7 calendar days of Yubico’s written request.

1.4. License Tiers and Initial Term Fulfillment. During the first 12 months of Customer’s initial Subscription Term, Customer may request for fulfillment of the License Units allocated for its Licensed Users in up to three bulk shipments which Yubico will prepare for shipment or utilize the optional Delivery Services, as defined and described in Section 1.11, below. Unless Customer is increasing its license count at renewal, renewal Subscription Terms do not include any new fulfillment of License Units as Customer will already be in possession of licensed License Units. The Order Form will specify the license tier that Customer has subscribed to, and Customer selection of License Unit form factors are restricted to those available in the specific license tier, as published in https://resources.yubico.com/53ZDUYE6/at/q7ruvw-cw5ifs-431pw/YubiEnterprise_Subscription-Solution_Brief.pdf. For the avoidance of doubt, Yubico will invoice Customer and Customer remains liable to pay for licensing fees regardless of whether Customer requests fulfillment of its allotment of License Units.

1.5. Additional User Licenses. If Customer wishes to license additional licenses in the same license tier for new users at any time prior to the final year of a then-current 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; subscription features and entitlements shall also be pro-rated. Replacement License Unit, if applicable, for the co-termed license is pro-rated and replenishes on the same date as the primary subscription anniversary date. Customer may request fulfillment of the additional License Units in a single bulk shipment or using the optional Delivery Services during the co-termed period of the same subscription year they are licensed. If such intended Licensing Transaction is to be within the final year of a then-current Subscription Term, then Yubico reserves the right to condition such Licensing Transaction on the requirement to renew the Subscription Term prior to the add-on Licensing Transaction being accepted. “Licensing Transaction” refers to the transaction in which Customer procures Subscription Service licenses or orders additional entitlements for such Subscription Service. If Customer intends to purchase co-termed licenses and fails to execute the applicable Order Form within 30 days of the specified co-term start date on such Order Form, Customer understands and agrees that Yubico may require execution of a revised Order Form utilizing an updated start date which may be subject to price adjustment.

1.6. Backup License Units. If Customer wishes to order additional backup License Units (“Backup License Units”) for Licensed Users who already have a primary License Unit 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; Subscription Service features shall also be pro-rated. For the avoidance of doubt, Backup License Units must be allocated to Licensed Users who already have a primary License Unit and cannot be used as the primary License Unit. Customer may request fulfillment of the Backup License Units in a single bulk shipment or using the optional Delivery Services during the co-termed period of the same subscription year they are licensed; if Backup License Units are procured at the beginning of the Subscription Term, they are to be fulfilled as part of the initial fulfillment stated in Section 1.4, above. If such intended Licensing Transaction is to be within the final year of a then-current Subscription Term, then Yubico reserves the right to condition such Licensing Transaction on the requirement to renew the Subscription Term prior to the Backup License Units Licensing Transaction being accepted.

1.7. Replacement License Units. During each year of the Subscription Term, to the extent Customer has Replacement License Unit entitlements, Customer may elect to replace License Units, in an amount not to exceed its available replacement percentage entitlement, with License Units within the same license tier, provided that (1) Customer ceases to use the replaced License Units; or (2) pays the applicable license fees to allow new users to use the replaced License Units. Purposes for replacement may include replacing lost or stolen License Units,  addressing employee turnover, or change to an alternate form factor available within the same License Tier.  Replacement License Unit does NOT rollover to the following year if unclaimed or unshipped within the current year. Customer may request fulfillment of the Replacement License Units in a single bulk shipment each subscription year or using the optional Delivery Services. For the avoidance of doubt, Customer shall be responsible for all shipping related fees including but not limited to freight, duties and customs fees, as applicable for the replacement License Units. 

1.8. Upgrades. If Customer wishes to upgrade its existing License Tier to a higher License Tier, then Customer may do so by paying the applicable fees subject to the following conditions: (i) the entire subscription is upgraded to the higher License Tier, provided that only License Units that are pending fulfillment (whether initial term fulfillment or replacement) are eligible for requesting fulfillment of form factors at the higher tier (previously fulfilled License Units cannot be replaced until the new Replacement License Unit renewal anniversary); (ii) the Subscription Term will be reset to start at the date of upgrade (i.e. subscription Start Date, end date, Replacement License Unit renewal anniversaries are reset using the date the upgrade happened); (iii) the upgrade occurs prior to the final year of the Subscription Term; and (iv); if Customer has a subscription with custom programming, all programmed License Units must be shipped prior to an upgrade being executed. Customers may only move to a higher tier and cannot downgrade to a lower tier during their Subscription Term.

1.9. Support Services and Customer Success Manager.  During the Subscription Term, Customer shall receive “Priority Support Problem Reporting and related Support” in accordance with the Yubico Support Services Agreement located at https://www.yubico.com/support/terms-conditions/yubico-support-services-agreement/. Customer will also have access to a Customer Success Manager during the Subscription Term.

1.10. Professional Services. If Customer has a “Plus Enterprise Plan”, then within the first six months of their Licensing Transaction, whether initial or co-termed add-on, Customer will be entitled to Professional Services value-in-kind incentive of 5% of the fees received by Yubico for the corresponding base Subscription Service Licensing Transaction (“PS VIK Incentive”), provided that such PS VIK Incentive shall not exceed $75,000 USD.  The PS VIK Incentive can be used solely to redeem Professional Services offerings which are designed to assist customers in deploying the Subscription Services. The PS VIK Incentive expires after six months from the date of the transaction and must be redeemed within such period. If the PS VIK Incentive is redeemed for a Professional Services project then such project must be scheduled for completion within six months of the date of the applicable Subscription Service transaction; if the PS VIK Incentive is redeemed for a Professional Services Hours Bundle transaction, such Hours Bundle must be initiated within six months of the date of the applicable Subscription Service transaction and the Hours Bundle must be consumed within 12 months of the applicable Subscription Service transaction. The PS VIK Incentive is not eligible to rollover or be redeemed for any cash value. For the purposes of illustration, if Customer’s initial term of its Subscription Services includes base Subscription Services fees of $500,000 USD received by Yubico, then Yubico shall make eligible $25,000 of the PS VIK Incentive which may be used towards Professional Services and which shall be scheduled for completion within the first six months of the date of transaction. Customer may allocate the PS VIK Incentive amount across one, or many, Professional Services offerings, provided that they all are redeemed and completed within the six months of the Subscription Service transaction. Customers are required to complete and accept a Professional Services VIK Redemption Form if they elect to redeem such benefit which includes reference to applicable terms and conditions. For the avoidance of doubt, the PS VIK Incentive amount is only calculated using the subscription fees of the Subscription Service itself (i.e., licensing fees) and do not include related expenditures such as custom configuration, shipping fees, or other supplementary fees that may be related to the transaction but not the actual licensing fees. In the case of a Subscription Service conversion or migration event, the PS VIK Incentive amount is not eligible to be calculated using previous transactions and will only calculate using the net new revenue received by Yubico for new Subscription Service.

1.11. Delivery Services. 

1.11.1. General; Eligible Destination.

As part of the Subscription Service, Customer is given access to utilize the optional YubiEnterprise Delivery Services (“Delivery Services”). If Customer utilizes Delivery Services, subject to payment of applicable fees, Yubico will deliver on Customer’s behalf, License Units to Customer’s shipping destinations located in countries being supported by YubiEnterprise Delivery Services (then-current list of supported countries available within the YubiEnterprise Console and upon request).

1.11.2. Shipping Timeline. In addition to bulk shipment offerings described in Section 1.4 above, at any time during the first 12 months of the initial Subscription Term, Customer may schedule delivery of its License Units using Delivery Services. Add-on License Units and Backup License Units procured must be requested for fulfillment using Delivery Services during the co-termed period of the same subscription year they are licensed. Notwithstanding the foregoing, Replacement License Units, if claimed, must be shipped during their allocated subscription year, otherwise they are waived.

2.1. License Grant. Yubico grants to Customer a limited non-exclusive, non-transferable (except as may be expressly stated otherwise in this Agreement), worldwide, royalty-free license to use the Subscription Service without the right to grant sublicenses, including allocating License Units during the Subscription Term solely for internal non-commercial use in its business operations in accordance with published specifications and subject to this Agreement and the applicable executed Order Form. 

2.2. Restrictions. The following restrictions shall apply to Subscription Service as well as any Yubico hardware (“Hardware”) and software (“Software”) made available to Customer through the Subscription Service. Customer shall not: (i) modify, translate or create derivative works from the Subscription Service; (ii) disassemble, decompile, reverse engineer, perform cryptographic analysis on or otherwise attempt to derive the source code of the Subscription Service, in whole or in part, unless expressly permitted by applicable law which is incapable of exclusion by agreement between the parties 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 Service, in whole or in part; (iv) sell, resell, distribute, transfer, publish, disclose, rent, lend, lease or sublicense the Subscription Service or its Software (for the avoidance of doubt, if Customer is acquiring Subscription Service on behalf of a company, Customer may make the Subscription Service available to Customer employees for use as well as Customer’s Affiliates and Third-Party Contractors subject to Section 2.4. below); (v) make the functionality of the Subscription Service available to any third party through any means, including without limitation by uploading the Software to a network or file-sharing service or through any hosting, application services provider, service bureau or other type of services; (vi) access all or any part of the Subscription Service in order to build a product or service which competes with the Subscription Service; (vii) introduce or permit the introduction of any virus into Yubico’s network and information systems. In addition, Customer shall not separate firmware from any Hardware provided or use Software with other non-Yubico devices.

2.3. 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 and beta software for supporting the usage of the Subscription Service; and (ii) pre-release Hardware which may be used with the Subscription Service (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 Subscription Service, and in the case of pre-release Hardware, 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.

2.4. Affiliates and Third-Party Contractors. Customer may allow its “Affiliates” to use the Subscription Service, 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 Service subject to their compliance with this Agreement.

The Subscription Service, including its accompanying Hardware and Software, is licensed on a subscription basis only, not sold, to Customer. All title to the Subscription Services and other Yubico intellectual property rights related to the Subscription Service 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 Service, Yubico shall have the right to retain and use any such suggestions or comments in current or future products or subscription services, 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 Service, 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. 

4.1. Channel Partner Transactions.

Section 4.2, below, does not apply to Customer if Customer procures the Subscription Service 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. Notwithstanding the foregoing, if such Yubico authorized distributor or reseller is unable to fulfill its contractual obligation(s) with Yubico and/or Customer, then Yubico shall be entitled to, and in its sole discretion, may elect to, enforce the terms and conditions of this Agreement (including Section 4.2 below) by establishing a direct commercial relationship with Customer for the continued licensing of Customer’s existing Subscription Service and its standard entitlements, replace the distributor or reseller, or work with Customer in good faith to resolve the matter. If Customer’s procurement of the Subscription Service is through Yubico authorized channel partners, then Customer understands and agrees that Yubico authorized channel partners may have visibility to Customer’s Subscription Service inventory within the YubiEnterprise Console for the purposes of assisting in the fulfillment of the Subscription Service or Delivery Services. Depending on fulfillment services requested, such channel partners may have access to personal information such as contact information and billing and shipping addresses for the purposes of order fulfillment.

4.2. Yubico Direct Sales. 

4.2.1. Fees. If Customer is licensing from Yubico by entering into a written Order Form, Customer will pay Yubico the total fees specified in the Order Form. Upon auto-renewal of a Subscription Term, renewal fees are subject to a unit price increase per year of the previous Subscription Term, not to exceed the greater between (1) 5% per year; or (2) the percentage increase in the CPI over the prior 12-month period, applied per year. As used herein, CPI means the U.S. Consumer Price Index for all Urban Consumers, U.S. City Average – All Items for the applicable 12-month period as published by the Bureau of Labor Statistics (or any successor index). Customer’s purchase of Delivery Services shall be in the form of paying the applicable shipping rate per shipment as stated in Yubico’s then-current Delivery Services rate table (“Shipping Fees”), available upon request.

4.2.2. Invoice Schedule. For annual billing on subscription fees, the first-year invoice(s) will be sent upon the start of the Subscription Term and subsequent year invoices will be sent annually 30 days in advance of subscription anniversary date. If Customer elects to prepay their subscription fees upfront for the entirety of their Subscription Term, then such invoice shall be sent upon the start of the Subscription Term. Delivery fees, including but not limited to freight, insurance, handling, and related taxes, are generally invoiced during the month they are incurred. As Customer enters shipment requests pursuant to its purchased Delivery Services, Yubico will charge Customer applicable Shipping Fees. Invoices for Shipping Fees charged in a month shall be collated and issued monthly.

4.2.3. Payment Terms. 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, goods and services, withholding and other taxes or duties. 

4.2.4. Taxes; General. 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, Yubico reserves the right to gross up the amount invoiced, and thus payable by Customer, to adhere to the withholding tax charge anticipated on the payment, such that the amount received by Yubico from Customer net of withholding taxes equals the pre gross amount. 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.

4.2.5. US Sales & Use Tax. If Customer has not provided Yubico with sufficiently detailed information for the location of all applicable shipments prior to the subscription Start Date, then for the first subscription fee invoice issued, Yubico will invoice Customer sales tax, as applicable, using Customer’s default shipping address specified on the Order Form. If no default shipping address is specified, then Yubico will utilize Customer’s billing address specified on such Order Form. To the extent Customer has provided actual locations for a limited number of shipments, Yubico will use such information and follow the process outlined above using the default shipping address or billing address for the remainder, as applicable. For subsequent annual invoices, as applicable, Yubico will use actual shipment locations for License Units fulfilled pursuant to Section 1.4, above, in calculating sales tax, to the extent available, and continue to follow the same process described above for License Units without actual shipment locations available. In no manner will Yubico issue a credit for sales tax collected in prior invoices based on subsequent shipment locations. Any use tax obligations arising from the movement or shipment of License Units to a different state, province, territory, or country than the location utilized for invoicing will be the sole responsibility of Customer.

4.2.6. Transaction Entities. If Customer is making global transactions from Yubico (i.e. transactions 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 Subscription Service 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.

4.2.7. Delivery. All Hardware made available in the Subscription Service that requires shipping in bulk, including but not limited to License Units, will be shipped Ex Works (INCOTERMS 2020 EXW) Yubico’s designated shipping point. Customer will be responsible for shipping expenses for the delivery of Customer’s License Units and any other applicable Hardware. For the avoidance of doubt, the bulk shipping process described in Sections 1.4 through 1.7 is the default delivery process and the Delivery Services stated in Section 1.11. is an optional service. The Delivery Services stated in Section 1.11., are shipped Delivery Duty Paid (INCOTERMS 2020 DDP) for standard Delivery Services offerings shipped to supported countries.

5.1. Warranty. Yubico warrants that any License Units that are provided pursuant to the Subscription Service will be free from defects in material and workmanship during the Subscription Term (“Warranty Period”) (such warranty being the “Limited Warranty”). If a defect in material or workmanship arises within the License Unit during the Warranty Period and the License Unit is returned to Yubico within the Warranty Period, Yubico will, subject to applicable laws, replace any defective License Unit with a new unit. The Warranty Period for any replacement License Unit will persist for the remainder of the then-current Warranty. This Section 5.1. sets forth Yubico’s sole obligation and Customer’s sole remedy for any breach of this Limited Warranty.

5.2. Exclusions. The Limited Warranty extends only to the original licensee of the Subscription Service and is non-transferrable. This warranty does NOT apply to a License Unit 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. 

5.3. Warranty Disclaimer. EXCEPT FOR THE LIMITED WARRANTY EXPRESSLY STATED IN SECTION 5.1. ABOVE AND TO THE FULLEST EXTENT PERMITTED BY APPLICABLE LAW, THE SUBSCRIPTION SERVICE IS 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 Subscription Service 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 Service 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 Services are used and for backing-up Customer’s data, software and other content. Customer agrees that its purchases and licensing are not contingent on the delivery of any future functionality or features (including future availability of Subscription Service, features or any new releases), or dependent on any oral or written public comments made by Yubico regarding future functionality or features.

6.1. 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. 

6.2. Export. In connection with the use and transport of any Hardware or Software (included embedded-Software) included in, provided with, or otherwise made available through the Subscription Service 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 Hardware and Software, is cryptographic in nature and that it therefore is highly regulated. Customer is strictly prohibited from exporting, re-exporting or importing the Hardware and 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 Hardware and Software is Customer’s responsibility.

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”) as amended and updated from time to time, governing the protection of personal data in relation to its performance under this Section 7. 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.

8.1. IN NO EVENT WILL YUBICO, 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.

8.2. IN NO EVENT WILL YUBICO, ITS AFFILIATES, AND ITS AND THEIR SUPPLIERS, DISTRIBUTORS, RESELLERS AND EMPLOYEES’ TOTAL CUMULATIVE LIABILITY RELATING TO THIS AGREEMENT OR THE USE OF THE SUBSCRIPTION SERVICE EXCEED THE AMOUNT PAID OR PAYABLE FOR THE SUBSCRIPTION SERVICE GIVING RISE TO THE CLAIM IN THE TWELVE MONTHS PRECEDING THE CLAIM.

8.3. 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.

9.1. Agreement Term. The term of this 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.

9.2.  Agreement Termination. 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 Subscription Service 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. 

9.3. Post-Subscription Term Obligations. Upon the expiration or earlier termination of the Subscription Term, Customer shall immediately cease using the Subscription Service and cease using the License Units 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 License Units are no longer being used for any of the above-mentioned purposes. Customer understands and agrees that continued use of License Units in this manner after the expiration and/or termination is unlicensed usage of software and Yubico’s proprietary rights. For the avoidance of doubt, continued usage of the License Units after the initial Subscription Term requires Customer to enter a renewal term. Customer represents and warrants that it shall adhere to these post-termination obligations and shall not continue to use the License Units, transfer, sell or resell such License Units in this manner.

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 any Customer purchase order, and the terms included in any such purchase order or other Customer policy shall not (i) apply to the Subscription Service; or (ii) in any way modify, revise, supplement, or otherwise affect the terms and conditions of the Agreement.

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 Subscription Service from Yubico, Inc.; and (ii) Sweden if Customer obtained the Subscription Service 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. 

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.

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 name, logo, or related marks in press releases or other similar marketing without Customer’s written consent.

Customer undertakes that it shall permit Yubico or Yubico’s designated auditor to audit the Subscription Service in order to establish the number of Licensed Users and Customer’s compliance with this Agreement. Each audit may be conducted no more than once per year, at Yubico’s expense, and this right shall be exercised with reasonable prior notice, in such a manner as not to substantially interfere with Customer’s normal conduct of business. Yubico reserves the right to audit on a more frequent cadence, but no more than once per quarter, if a breach is discovered in the prior audit. If any such audit reveals Customer has underpaid fees to Yubico, then without prejudice to Yubico’s other rights, Customer shall pay to Yubico an amount equal to such underpayment within 21 calendar days of the date of the relevant audit, and Customer shall reimburse Yubico for the cost of the related audit.

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”.