Master Services Agreement

1.

License Grant

1.1.

Grant of License. Subject to the terms of this Agreement, Immersive grants to the Customer and its Affiliates a limited, non-exclusive, non-transferable, non-sublicensable, and revocable right for their Authorized Users to access and use the Platform and Services during the Order Term, solely for their internal business operations.

2.

Immersive Obligations and Warranties

2.1.

Immersive Warranties. Immersive warrants that it will provide the Platform and Services in accordance with applicable laws, in substantive conformity to the Documentation, and in accordance with its service level agreement at Annex B, and any applicable statement of work.

2.2.

Remedy. If the Platform and Services do not conform to Section 2.1, Immersive will use all commercially reasonable efforts to promptly repair, re-perform, or restore the non-conforming Platform or Services. Immersive warrants that any such corrective work will be performed free of charge and with priority over all other non-urgent work. This remedy represents the Customer’s sole and exclusive remedy for a breach of Section 2.1.

2.3.

Data Processing. The data processing agreement available at immersivelabs.com/legal/data-processing-agreement (DPA) is hereby incorporated by reference. Immersive will maintain the security measures outlined in Annex B of the DPA.

2.4.

Disclaimer. EXCEPT FOR THE EXPRESS WARRANTIES CONTAINED IN THIS AGREEMENT, NO OTHER WARRANTIES ARE EXPRESSED OR IMPLIED, INCLUDING ANY IMPLIED WARRANTIES OF MERCHANTABILITY AND FITNESS FOR A PARTICULAR PURPOSE.

3.

Customer Obligations and Warranties

3.1.

Prohibited Use and Restrictions. Unless expressly authorized, the Customer will not, and will not permit others to: (i) reverse engineer, decompile, disassemble, or otherwise attempt to discover the source code or underlying structure of the Platform; (ii) provide, sell, resell, transfer, sublicense, lend, distribute, rent, or otherwise allow any party other than the Authorized Users to access or use the Platform; (iii) copy, modify, or create derivative works of the Platform; (iv) introduce any software, Customer Content or material that is malicious or technologically harmful to the Platform; (v) perform any security testing of the Platform or circumvent any safety mitigations; or (iv) impose excessive or unreasonable loads on the Platform infrastructure or consume disproportionate resources. Immersive has the right to suspend access to the Platform for a breach of this Section.

3.2.

Customer Warranty. The Customer warrants that: (i) its Authorised Users will comply with this Agreement; (ii) it will comply with all applicable laws and regulations; (iii) neither it nor any Authorised User is a Sanctions Target, a person located in, resident of, or organized under the laws of a Prohibited Territory, or subject to any Sanctions-related investigation or proceedings; (iv) it has the necessary Intellectual Property Rights to use and authorize Immersive’s use of Customer Content; and (v) Customer Content will not contain any unlawful, defamatory, or harmful material.

4.

Payment

4.1.

Fees. The Customer will pay Immersive the fees described in the Order in accordance with its terms. Immersive may change the fees applicable to an Order renewal term by providing the Customer with written notice of the new fees before the end of the then-current Order Term.

4.2.

Invoicing. Unless otherwise specified in an Order, the Customer will be invoiced annually in advance, and payment is due 30 days from the invoice date. Unpaid amounts accrue late charges at 8% (assessed daily), or the maximum permitted by law. If the Customer fails to pay the fees owed under an Order within 10 days of the due date, Immersive may suspend access to the Platform until payment is made.

4.3.

Taxes. Fees do not include taxes. Each party will be responsible for its own income taxes, employment taxes, and real property taxes. If withholding is required by law, the Customer will pay any additional amounts necessary so that the net amount received by Immersive is equal to the full amount it would have received had no withholding been required.

4.4.

Reseller Purchases. If the Customer purchases subscriptions to the Immersive Platform and Services from a Reseller, the Customer’s payment obligations are owed to the Reseller.

5.

Confidentiality

5.1.

Confidentiality Obligations. The recipient will only use the disclosing party’s Confidential Information to exercise the recipient’s rights and fulfil its obligations under this Agreement and will keep such Confidential Information secret, save for disclosure to the recipient’s employees, contractors, Affiliates, agents, or professional advisors who need to know it and who have an obligation to keep it confidential. For the avoidance of doubt, Customer Content is considered Confidential Information.

5.2.

Compelled Disclosure. Notwithstanding the foregoing, the recipient may disclose the discloser’s Confidential Information: (i) if directed by discloser; or (ii) to the extent required by applicable legal process, provided that the Recipient uses commercially reasonable efforts to (a) promptly notify the discloser in advance, to the extent permitted by law; and (b) comply with the discloser’s reasonable requests to oppose the disclosure.

5.3.

Duration. The obligations in this Section 5 will survive the expiration or termination of this Agreement for 3 years.

6.

Intellectual Property Rights

6.1.

Immersive IPR. All Intellectual Property Rights in and to the Platform and Documentation (including any updates, modifications, or improvements) belong to and will continue to belong to Immersive. Save where expressly stated in an Order, Immersive will own all Intellectual Property Rights in any content or reporting created by Immersive for the Customer arising from the Services (excluding any Customer Content).

6.2.

Customer Content. As between the parties, the Customer retains ownership of and title to any Intellectual Property Rights in Customer Content. The Customer grants Immersive a limited, non-transferable, non-sublicensable, and revocable right to use Customer Content solely for providing the Platform and the Services.

6.3.

Usage Data. Immersive may collect and analyze data relating to use of the Platform (Usage Data) and Immersive may (during the term and after termination) use Usage Data in de-identified form to maintain, improve, and enhance Immersive’s products or services. Usage Data includes technical logs, metadata, telemetry data, and usage information about Customer Content, but excludes Customer Content itself.

6.4.

Feedback. If the Customer provides Immersive with feedback concerning the Platform or Services, Immersive may use such feedback without restriction.

7.

Term and Termination

7.1.

Term. This Agreement will commence on the Subscription Start Date and will remain in effect until all Orders have expired or are terminated.

7.2.

Automatic Renewal. Each Order will automatically renew for additional periods of the same duration unless either party provides written notice of non-renewal at least thirty (30) days before the end of the Order Term. Access to the Services during any renewal term is subject to payment of the applicable fees; however, Immersive may, in its sole discretion, grant a temporary grace period before suspending access for non-payment.

7.3.

Termination for Cause. Each party may terminate an Order or this Agreement upon written notice to the other party if the other party (i) materially breaches this Agreement and such breach is incapable of cure, or if a breach is capable of cure, the breaching party does not cure such breach within 30 days of receiving notice of it; or (ii) becomes insolvent, ceases trading, enters liquidation, or is generally unable to pay its debts.

8.

Effect of Termination

8.1.

Effect on Orders. Termination of this Agreement will result in the termination of all ongoing Orders; however, termination of an Order will not result in the termination of this Agreement or any other ongoing Orders.

8.2.

Termination for Material Breach. If the Customer terminates this Agreement or an Order for Immersive’s material breach, Immersive will issue the Customer a prorated refund of fees paid relating to the remainder of the relevant Order Term(s).

8.3.

Termination of Rights. Upon termination of an Order for any reason, all licenses and rights granted under this Agreement pursuant to the Order will immediately terminate.

8.4.

Content Retrieval. Upon termination or expiration of this Agreement, Immersive will make Customer Content available to the Customer for electronic retrieval for a period of 30 days, after which it may be securely destroyed.

8.5.

Survival. The following Sections of this Agreement will survive any expiration or termination of this Agreement: 4,5,6,8,9,10,11.

9.

Indemnities

9.1.

Immersive Indemnity. Immersive will defend and indemnify the Customer (for itself and on behalf of its Affiliates) against any third-party claim that the Platform infringes any third-party Intellectual Property Rights, provided the Customer gives prompt notice and reasonable cooperation. Immersive will have no obligation to defend or indemnify the Customer for any such claim to the extent it is based on: (i) the combination, operation, or use of the Platform with any third-party component or data where the infringement would not have occurred but for such combination; (ii) use of the Platform by the Customer or Customer’s Authorized Users in violation of this Agreement; or (iii) Customer Content.

9.2.

Immersive Remedies. If the Platform is, or is likely to be, subject to a claim giving rise to a defense or indemnity obligation, Immersive will, at its expense: (i) procure the right for Customer to continue using the Platform; (ii) modify the Platform to be non-infringing; or (iii) replace the Platform with a non-infringing, functionally equivalent alternative. If this is not commercially practicable, Immersive may terminate the Customer’s right to use the impacted portion of the Platform and provide a pro-rata refund of any prepaid fees.

9.3.

Customer Indemnity. The Customer will defend and indemnify Immersive (for itself and on behalf of its Affiliates) against any claims and/or losses (including fines and legal costs) arising from: (i) Customer Content infringing a third party’s Intellectual Property Rights; (ii) use of the Platform in violation of Section 3.1.

9.4.

Indemnification Process. If a party entitled to indemnification becomes aware of any indemnifiable claim, it will give the other party prompt written notice of the claim, cooperate (at the indemnifying party’s expense) in the defense or settlement of the claim, and let the indemnifying party control the defense or settlement. The indemnified party will have the right to participate fully, at its own cost. Any settlement requiring the indemnified party to admit fault or pay money needs both parties’ written approval. The indemnifying party’s obligations will be contingent on the indemnified party’s compliance with this process.

10.

Limitation of Liability

10.1.

Liability. IN THIS SECTION, “LIABILITY” MEANS ANY LIABILITY UNDER CONTRACT, TORT (INCLUDING NEGLIGENCE), OR OTHERWISE (WHETHER OR NOT FORESEEABLE OR CONTEMPLATED BY THE PARTIES).

10.2.

Exclusion of Indirect Damages. EXCEPT FOR EXCLUDED CLAIMS, NEITHER PARTY, NOR THEIR AFFILIATES, WILL BE LIABLE FOR ANY LOSS OF PROFITS OR BUSINESS OPPORTUNITY NOR ANY SPECIAL, INDIRECT, INCIDENTAL, CONSEQUENTIAL, OR EXEMPLARY DAMAGES.

10.3.

Liability Cap. EXCEPT FOR EXCLUDED CLAIMS, EACH PARTY’S AGGREGATE LIABILITY WILL NOT EXCEED THE FEES PAID OR PAYABLE UNDER THE APPLICABLE ORDER IN THE TWELVE MONTHS PRIOR TO THE DATE THE DAMAGE OCCURRED.

11.

Miscellaneous

11.1.

Affiliates. A Customer Affiliate may enter into an Order under this Agreement and, by entering into the Order, the Affiliate agrees to be bound by the terms and conditions of this Agreement with respect to such Order, and such Affiliate will be considered the Customer.

11.2.

Product-Specific Terms. Certain Immersive offerings are subject to Product-Specific Terms (such as beta features, APIs, artificial intelligence, and malicious code). If the Customer elects to use such offerings, the Product-Specific Terms at immersivelabs.com/legal-documents/product-specific-terms apply.

11.3.

Force Majeure. Neither party will be liable for failures or delays resulting from events outside its reasonable control. The affected party will promptly notify the other party of the event and use reasonable efforts to mitigate the consequences. If such an event causes a party to fail to comply with its obligations under this Agreement for 30 consecutive days, either party may terminate this Agreement upon written notice, without liability.

11.4.

Notices. All notices will be in writing (email sufficient). Legal notices will be sent to legal@immersivelabs.com. Billing-related notices to the Customer will be addressed to the relevant billing contact designated by the Customer. All other notices to Customer will be addressed to the applicable Platform administrator.

11.5.

Severability; No Waiver. If any provision of this Agreement is invalid, the remainder of the Agreement will remain in effect. No delay or failure to exercise any right constitutes a waiver.

11.6.

Assignment. Neither party may assign this Agreement without the other’s written consent, except in connection with a merger, acquisition, or sale of all or substantially all assets.

11.7.

No Partnership. No agency, partnership, joint venture, or employment is created as a result of this Agreement, and neither party has any authority of any kind to bind the other party.

11.8.

Governing Law and Jurisdiction. The governing law and the venue with exclusive jurisdiction will be as specified in the table below, without regard to choice-of-law or conflict-of-law rules.

11.10.

Sanctions and Export. The Customer represents and warrants that it shall, and shall ensure its Authorized Users, comply with all applicable Sanctions in its use of the Products and Services, including not selling, exporting, re-exporting, or otherwise providing access to (i) any Sanctions Target, or (ii) any person located in, resident of, or organized under the laws of any Prohibited Territory. The Customer shall implement reasonable measures designed to prevent any access or use in violation of this Section 11.10, including in connection with any event-based Services (e.g., Cyber Drills) involving third-party participants. The Customer shall immediately notify Immersive of any event that may result in a Sanctions breach. Immersive may immediately suspend access to the Platform and/or terminate for material breach following any breach of this clause.

11.11.

Anti-Bribery. Neither party has received or been offered any illegal or improper bribe, kickback, payment, gift, or thing of value from an employee or agent of the other party in connection with this Agreement.

11.12.

Government Use. This Section only applies if the Customer is domiciled in the United States and the Platform and Services, including related software and technology, are provided for ultimate federal government end use. Immersive’s offerings consist of “commercial items,” as defined at FAR 2.101. In accordance with FAR 12.211-12.212 and DFARS 227.7102-4 and 227.7202-4, as applicable, the rights of the U.S. Government to use, modify, reproduce, release, perform, display, or disclose commercial computer software, commercial computer software documentation, and technical data furnished in connection with this Agreement will be as provided in this Agreement, except that, for U.S. Department of Defense end users, technical data customarily provided to the public is furnished in accordance with DFARS 252.227-7015.

11.13.

Publicity. Immersive may reference the Customer and use the Customer’s logo in its marketing and promotional materials. The Customer may, by written notice, withdraw such license at any time.

11.14.

Interpretation. Unless the context otherwise requires, the words “include”, “includes”, “including” and any variation will be deemed to be followed by the phrase “without limitation”.

11.15.

Entire Agreement. This Agreement, including all Orders, Product-Specific Terms, the DPA, and any Annexes or statement of works incorporated by reference, supersedes all other agreements between the parties relating to its subject matter. In the event of a conflict, the order of precedence is: (i) the Product-Specific Terms; (ii) the DPA; (iii) the Orders (from newest to oldest); (iv) the terms of this Master Services Agreement; and (v) any statement of work or other annexes. The parties agree that any terms and conditions stated in a Customer purchase order or other Customer ordering process have no force and effect.

Affiliates

means as to a party, that party together with its holding company or any subsidiary, or any other company under common control with it from time to time.

Agreement

means this Master Services Agreement (together with its annexes), the Product-Specific Terms, any Order, and any statement of work.

Authorized Users

means the employees, agents, representatives, and/or independent contractors of the Customer and any Affiliate that the Customer authorizes to use the Platform and the Services.

Confidential Information

means any information that is marked as confidential or would normally be considered confidential information under the circumstances, but does not include information that is independently developed by the recipient, is rightfully given to the recipient by a third party without confidentiality obligations, or becomes public through no fault of the recipient.

Customer

means the customer entity that accepts this Agreement as part of an Order.

Customer Content

means the electronic data (including any personal data), information, materials, text, prompts, images, or other content relating to the Customer created, submitted, uploaded, imported, or transferred by the Customer or its Authorized Users to be stored, shared, or hosted on or through the Platform and the Services, excluding Usage Data.

Documentation

means the user manuals, user guides, API specifications, and other resources made available by Immersive to the Customer, including the content provided on the Customer Help Centre available at https://immersivelabs.zendesk.com/hc/en-us.

Excluded Claims

means damages resulting from (i) death or personal injury (to the extent caused by negligence); (ii) fraud or fraudulent misrepresentation; or (iii) a party’s indemnity obligations.

Immersive

means the Immersive group company identified in an Order.

Intellectual Property Rights

means patents, utility models, rights to inventions, copyright and related rights, moral rights, trademarks and service marks, business names and domain names, goodwill, rights in designs, rights in computer software, database rights, rights to use, and protect the confidentiality of, confidential information (including know-how and trade secrets) and all other similar or equivalent rights.

Order

means (a) (i) an ordering document that is entered into between the Customer and Immersive; or (ii) an ordering document that is entered into between the Reseller and Immersive; and (b) which references this Agreement and the license quantities purchased by the Customer.

Order Term

means the subscription term length described in the applicable Order, or with respect to trial periods, the trial period set by Immersive.

Platform

means the cybersecurity skills platforms known as “Immersive One” and any content, software, features, or functionality made available or displayed on it, as identified in an Order and the Documentation.

Prohibited Territory

means (i) Cuba, North Korea, Iran, Syria, China, Sudan, Russia, and the conflict regions of Ukraine (Donetsk, Luhansk, and Crimea), and (ii) any other country or territory that is, during performance of the Services, subject to comprehensive territorial Sanctions.

Reseller

means a third party authorized by Immersive to resell the Immersive Platform.

Sanctions

means all applicable economic or financial sanctions, trade embargoes, export controls, or restrictive measures imposed or enforced by the UK, US, EU, UN, and any other authority with jurisdiction over Immersive or its operations (Sanctions Authority).

Sanctions Target

means any person (i) listed or otherwise designated as subject to Sanctions by a Sanctions Authority, (ii) owned or controlled by such a person, or (iii) resident, located in, or incorporated in a country subject to comprehensive territorial Sanctions.

Services

means all services provided by Immersive to the Customer to enable the successful operation, maintenance, configuration, and adoption of the Platform. These Services include technical assistance to resolve errors or defects, customer success management (including implementation support, training, and ongoing executive business reviews), and any purchased premium support services.

Subscription Start Date

means the start date stated in the initial Order or the date the Customer accesses the Platform, whichever is earlier.

Term

means the duration of an Order, including any renewal periods.

Usage Data

has the meaning given to it in Section 6.3 (Usage Data).