End User License Agreement (EULA)

The Shepherd Centre (TSC) – for deaf children
146 Burren Street, Newtown, NSW, 2042
P: +62 2 9370 4400
E: [email protected]

1. Agreement

This is an agreement made between The Shepherd Centre For Deaf Children ABN 61 000 699 927 (TSC) and the Licensee (Licensee).

2. Service

TSC will provide the Licensee with access to HearHub and the Licensee will use HearHub in accordance with this agreement.

3. Term

This agreement commences on the Commencement Date and continues in accordance with the Licensee’s Subscription until terminated.

4. Use of HearHub

4.1 User enrolment, access and removal

(a) The Licensee may authorise members of its Staff to access HearHub by following the User enrolment process in HearHub to create User Credentials.

(b) The Licensee will ensure that:

(i)only its Staff that have User Credentials are provided access to HearHub;

(ii)  Users comply with the Licensee’s obligations under this agreement; and

(iii) it immediately disables access for any User that violates this agreement or is no longer authorised under this agreement to access HearHub.

(c) The Licensee will ensure that a User does not disclose their User Credentials to any other person.

(d) The Licensee may disable Staff access to HearHub by:

(i)Notifying TSC; or

(ii)  completing any other process Notified by TSC to the Licensee.

(e) The Licensee is responsible for acts and omissions of Users relating to HearHub as though they were acts and omissions of the Licensee.

4.2 Purpose of use

The Licensee may use HearHub solely for the internal business purposes of the Licensee.  The Licensee will not:

(a) use HearHub for the benefit of anyone other than the Licensee;

(b) authorise or facilitate use of HearHub by persons other than Users; or

(c) access HearHub to develop a competitive product or service.

4.3 Competitors of Cochlear Ltd cannot license HearHub

(a) The Licensee warrants that it is not a Cochlear Competitor or a Funder of Implantable Hearing Services or Devices.

(b) If the Licensee becomes a Cochlear Competitor or a Funder of Implantable Hearing Services or Devices during the Term, the Licensee must Notify TSC immediately.

(c) If the Licensee is (or becomes) a Cochlear Competitor or a Funder of Implantable Hearing Services or Devices, on TSC’s receipt of the Notice under clause 4.3(b):

(i)this agreement will terminate immediately; and

(ii)  the Licensee will not be entitled to any refund of fees paid.

4.4 License restrictions

(a) The Licensee agrees, except to the extent permitted by this agreement or applicable law:

(i)not to decompile, disassemble, reverse engineer or otherwise attempt to derive the HearHub source code from object code;

(ii)  not to sell, rent, lease, license, sublicense, display, time share or otherwise transfer HearHub to, or permit the use of HearHub by, any third party;

(iii) not to remove any copyright or proprietary notice from HearHub;

(iv) not to modify HearHub source code in any way;

(v) not to access HearHub by any means other than via the HearHub website and user interface (for example, by using APIs or machine-to-machine methods); and

(vi) to use reasonable care and protection to prevent the unauthorised use, copying, publication or dissemination of the content on HearHub.

(b) The Licensee agrees not to use or permit the use of HearHub to:

(i)communicate any message or material that is defamatory, harassing, libelous, threatening, or obscene;

(ii)  in a way that violates or infringes upon the intellectual property rights or the privacy or publicity rights of any person or entity or that may otherwise be unlawful or give rise to civil or criminal liability;

(iii) in any manner that is likely to damage, disable, overburden, or impair HearHub or interfere in any way with the use or enjoyment of HearHub by others or

(iv) introduce any malware or other malicious activity in the Licensee’s use of HearHub.

4.5 Compliance

(a) The Licensee must comply with applicable laws and the Privacy Policy in using HearHub.

(b) The Licensee is responsible for the acts and omissions of Users. Users must comply with the Licensee’s obligations in this agreement (except to pay fees).  Where this agreement seeks to impose an obligation on a User, the Licensee must ensure that the User performs that obligation.

5. Availability of HearHub

5.1 General

(a) TSC will use reasonable endeavours to make HearHub available to the Licensee.

(b) TSC may temporarily suspend HearHub for the purpose of planned maintenance or upgrade notified in advance or without Notice in the event that emergency maintenance is required.

(c) HearHub is accessed by the Internet.  The Licensee is responsible for providing and maintaining hardware, software, internet access and other services needed to access HearHub including ensuring that they meet the minimum specifications published by TSC from time to time.

(d) The Licensee acknowledges and accepts that:

(i)TSC may utilise external services, infrastructure and websites or other software applications in the provision of HearHub; and

(ii)  TSC has no direct control over the availability of those external services, infrastructure or websites.

5.2 Faults

(a) If there is:

(i)a major failure with HearHub; or

(ii)  if a failure with HearHub does not amount to a major failure, but the failure has not been rectified in a reasonable time,

the Licensee will be entitled to:

(iii) terminate the agreement; and

(iv) obtain a refund for the unused value of any fees paid in advance,

provided the Licensee is not otherwise in breach of this agreement.

(b) If the Licensee terminates the agreement in accordance with clause 5.2(a), the Licensee may be entitled to be compensated for any other reasonably foreseeable loss or damage it incurs as a direct result of a failure with HearHub.

6. Changes to HearHub

HearHub is delivered using a software-as-a-service model which relies on customers sharing infrastructure and applications.  This means that customers must accept that the service will be delivered using a common version of the underlying software application. Accordingly, TSC may change, add or remove functions or other aspects of HearHub at any time (Service Update). The Licensee cannot opt out of a Service Update.  This agreement continues to apply in all respects to Service Updates. TSC will notify the Licensee of any new features, including changes to Subscription Models, that may incur additional charges.

7. Training

(a) TSC may make available how-to videos, FAQs and other resource documentation to support HearHub.

(b) TSC may provide training to help Users better understand how to use HearHub, either free of charge or at an additional cost, as advised by TSC.  The location and the time for the training will be agreed by the parties.

8. Support

(a) TSC will use reasonable endeavours to provide support services to Users in the form of:

(i)technical support by email ([email protected]) or by submitting a form through HearHub regarding the use of HearHub; and

(ii)  the Documentation.

(b) TSC will use reasonable endeavours to respond to emailed or submitted questions within two  Business Days.

(c) The Licensee may nominate a support representative to handle support communications with TSC.

(d) Prior to actioning any support request from a User, TSC may verify the authority for any such request with the Licensee’s nominated support representative.

9. Fees

9.1 Access fees

The fees for accessing HearHub are set out on the HearHub webpage https://hearhub.org/ or as advised by TSC, as updated from time to time.

9.2 Training fees

If TSC provides training in accordance with clause 7(b) at an additional cost to the Licensee, the Licensee will be charged the TSC training rate and any applicable expenses, as advised by TSC prior to the training commencing. Additional fees and expenses will apply if the training is re-scheduled or cancelled by the Licensee.

9.3 Payment

(a) The Licensee acknowledges and agrees that each Subscription Model is recurring and will automatically renew after the end of each paid Subscription period, unless terminated by either party. If the Licensee’s Subscription is:

(i)monthly – the Licensee will pay monthly in advance; or

(ii)  yearly – the Licensee will pay yearly in advance.

(b) The Licensee may pay the fees for a Subscription by:

(i)credit card;

(ii)  electronic funds transfer to the bank account nominated by TSC; or

(iii) any other method agreed with TSC.

(c) If the Licensee receives an invoice for the Subscription fees, the Licensee must pay the invoiced amount to TSC within 14 days of the date of the invoice.  TSC may suspend its performance of this agreement where payment is overdue.

(d) The Licensee must Notify TSC of any change to its Subscription at least 5 Business Days before the next Subscription period commences for the change to take effect for the next billing period.  Changes that are not Notified within this period may not take effect, unless otherwise agreed with TSC.  A change may include the addition of any add-ons (such as tools or the Learning Environment), a change to subscription, or a change to a User tier.

9.4 GST

(a) In this clause 9.4:

(i)a reference to a supply is to a supply made under or in connection with this agreement;

(ii)  any part of a supply that is treated as a separate supply for GST purposes (including attributing GST payable to tax periods) will be treated as a separate supply for the purposes of this clause; and

(iii) terms used in this clause have the same meaning as in the A New Tax System (Goods and Services Tax) Act 1999 (Cth).

(b) The fees and expenses under this agreement exclude GST (unless expressly stated to include GST).

(c) Where GST is payable by an entity (Supplier)in relation to a supply that it makes under this agreement, and the consideration for that supply excludes GST, the party providing the consideration will pay an additional amount equal to the GST, and the Supplier must provide a tax invoice, at the same time, any part of the consideration is first paid.

9.5 Fee adjustment

(a) TSC may from time to time increase the fees under this agreement by stating the increased fees on the invoice.  Fee increases may be to account for the addition of new features or an increase in the cost of providing the service (including inflation).

(b) After any fee increase, the Licensee may terminate this agreement under clause 15.1. If that termination occurs within 2 months after TSC has increased the fees, the Licensee is not required to pay the difference between the increased fees and the fees applying prior to the increase.

10. Intellectual property

10.1 Ownership

(a) The Intellectual Property Rights in HearHub (and material used to provide HearHub such as software, text, images, video, audio and data) are owned by or licensed to TSC.  Intellectual Property Rights created by or on behalf of TSC in the course of this agreement (other than in the Licensee Data) vest in TSC.

(b) TSC grants the Licensee a non-exclusive licence for the Term to:

(i)access and use HearHub in accordance with this agreement; and

(ii)  make a reasonable number of copies of Documentation.

(c) HearHub may include third party content which is subject to other licence terms, such as an open source licence, as notified by TSC from time to time (including by publishing them on TSC’s website).  The Licensee must comply with such licence terms, and those licence terms will prevail over this agreement to the extent of any inconsistency.

10.2 Infringement

(a) Subject to clause 10.2(c), TSC indemnifies the Licensee against damages or costs finally awarded against the Licensee arising from the Licensee’s use of HearHub in accordance with this Agreement infringing a third party’s Intellectual Property Rights. This clause does not apply to Licensee Data or Third Party Data.

(b) If a third party claims that the Licensee’s use of HearHub infringes that party’s Intellectual Property Rights, TSC may:

(i)modify HearHub so that it no longer infringes; or

(ii)  obtain the right for the Licensee to continue to use the affected part of HearHub; or

(iii) suspend or terminate the Licensee’s use of HearHub or the affected parts if TSC believes that the above options are not commercially reasonable.

(c) If the Licensee becomes aware of any suspected, alleged or actual infringement of Intellectual Property Rights in HearHub or by HearHub, the Licensee will:

(i) Notify TSC immediately;

(ii)  permit TSC to have sole control of the conduct of any claim covered by this clause; and

(iii) provide all assistance reasonably requested by TSC in relation to the claim.

11. Licensee Data

11.1 Rights to Licensee Data

(a) The Licensee grants TSC a non-exclusive and perpetual licence to use Licensee Data solely for the purpose of delivering HearHub and administering the agreement.

(b) The Licensee will obtain any necessary consents to provide the Licensee Data to TSC (and will provide reasonable evidence of the consents to TSC on request).

(c) The Licensee warrants that the acts of TSC (and its Staff) in accordance with this agreement will not infringe any laws or any third party’s Intellectual Property Rights in the Licensee Data.  TSC may delete Licensee Data from HearHub, if in TSC’s reasonable opinion, there is or is likely to be an infringement of that nature.

11.2 Security

(a) TSC will adhere to good industry practice in relation to data security and the prevention of data loss and retain regular backup copies of the HearHub database. TSC will support the Licensee where possible to retrieve any lost data but cannot guarantee its retrieval.

(b) If the Licensee believes that there is a security vulnerability in HearHub, the Licensee will Notify TSC immediately and keep that information confidential to avoid increasing the potential that it will be exploited before being resolved.

(c) The Licensee acknowledges and agrees that Licensee Data may transit or be stored or processed in systems:

(i)outside of TSC’s control (TSC will do its best to select reliable suppliers who adhere to good industry practices); and

(ii)  across different jurisdictions, including those outside of the Licensee’s state or country.

(d) The Licensee acknowledges and agrees that Licensee Data may need to be accessed or disclosed to third parties to:

(i)provide HearHub;

(ii)  provide support to the Licensee; and

(iii) comply with laws.

(e) TSC will not guarantee encryption of Licensee Data at all times, particularly when not on infrastructure or networks within TSC’s control.

11.3 Privacy

(a) TSC will comply with the Australian Privacy Principles (APPs) in the Privacy Act in dealing with personal information (as defined in that Act) in the Licensee Data in the course of this agreement.  TSC will use reasonable endeavours to ensure that its subcontractors also comply with this clause (except in relation to APP 1).

(b) The Licensee will take steps reasonably requested by TSC to enable TSC to comply with the Privacy Act, and not do anything that could cause TSC to breach the Privacy Act.

(c) The Licensee must not, and must ensure that its Users must not, enter Personal Information in HearHub without the relevant individual’s consent. If the individual is a Child, the Licensee or the User must obtain consent from the Child’s parent or guardian.

11.4 Anonymised Data

(a) TSC may create, use and store anonymised Licensee Data.

(b) TSC may create, use and store usage data from the Licensee’s usage of HearHub, including the details of a User accessing HearHub, the duration of the User’s session and the functionality used.

(c) The Licensee agrees that anonymised Licensee Data or anonymised usage data may be used by TSC to provide and improve services, to develop new services or product offerings, to identify business trends, for research purposes and for other uses to improve HearHub for users.

11.5 Return of Licensee Data

(a) The Licensee acknowledges and accepts that:

(i)it is responsible for ensuring that any Licensee Data is extracted from HearHub prior to the termination of the agreement; and

(ii)  after the termination of the agreement, TSC may delete the Licensee Data from HearHub’s systems and it may not be recoverable.

(b) On the written request of the Licensee, TSC may extract the Licensee Data from HearHub for the Licensee. The Licensee’s request must be made prior to termination of the agreement.  TSC may charge the Licensee additional fees for extraction of the Licensee Data, as advised by TSC.

12. Audit

TSC may audit the Licensee’s use of HearHub from time to time.  The Licensee will provide TSC with reasonable assistance to undertake the audit, including by promptly providing any information requested by TSC.

13. Confidentiality

Each party must treat as confidential all information provided by the other party under this agreement and will only use such information for the purposes of this agreement. A party must not disclose the other party’s confidential information to any person, except:

(a) to its Staff, professional advisors and auditors on a ‘need to know’ basis provided those persons first agree to observe the confidentiality of the information;

(b) with the other party’s prior written consent;

(c) if required by law or any stock exchange; or

(d) if it is in the public domain, other than as a result of a breach of this agreement.

14. Suspension

(a) TSC may suspend the Licensee’s access to HearHub where:

(i)the Licensee’s use of HearHub:

A.  poses a security risk to HearHub or the systems or services of a third party;

B.  could adversely impact HearHub or the systems or services of a third party;

C.  could subject HearHub or a third party to liability; or

D.  is fraudulent; or

(ii)  the Licensee is in breach of this agreement.

(b) TSC will promptly Notify the Licensee of any suspension.  TSC will limit the scope and duration of the suspension as is reasonable in the circumstances.

(c) The Licensee remains responsible for payment of fees during the period of any suspension.

15. Termination

15.1 Termination prior to first use

The Licensee may terminate this agreement by providing Notice to TSC within 14 days from the Commencement Date.  The TSC will refund the fees paid by the Licensee provided that the Licensee has not added or accessed information or data in HearHub.

15.2 Termination without cause

(a) Either party may terminate this agreement by providing Notice to the other party. The termination of the agreement will take effect at the end of the current billing period.

(b) The Licensee must provide a minimum 5 Business Days’ Notice for the termination to take effect at the end of the current billing period, otherwise the termination will take effect at the end of the next billing period.

(c) Where the Licensee terminates this agreement under clause 15.2(a), the Licensee forfeits any fees paid in advance.  Where TSC terminates this agreement under clause 15.2(a), TSC will refund to the Licensee the unused value of any fees paid in advance.

15.3 Termination for default

Either party may terminate this agreement in whole or in part with immediate effect by Notice if:

(a) the other party is in breach of this agreement and, where the breach is capable of being remedied, has failed to remedy the breach within 14 days of being requested to do so by Notice; or

(b) the other party becomes subject to any form of insolvency or bankruptcy administration.

15.4 Effect of termination or expiry

Termination or expiry of this agreement does not affect the operation of clauses 10, 11.5 and 17 or any rights or remedies already accrued to either party under, or in respect of any breach of, this agreement.

16. Clinical and business risks

16.1 HearHub is only a tool

(a) The Licensee acknowledge and agree that HearHub is designed as a tool to assist hearing healthcare professionals to empower children’s listening and communication skills and it is not intended to be used as a diagnostic or advisory service.

(b) TSC does not warrant that the Licensee or its Users will achieve any particular results through the use of HearHub.

(c) The Licensee and Users are solely responsible for:

(i) determining whether HearHub or information generated by it is accurate and sufficient for the purposes of the Licensee and its Users; and

(ii) all clinical and other business decisions in the operation of their practice.

(d) The Licensee acknowledge and agree that HearHub does not void the need to exercise medical skill and judgement.

16.2 Third Party Data

TSC may provide access to certain Third Party Data through HearHub. TSC does not create the Third Party Data and does not independently review or validate it. TSC has no liability to the Licensee in connection with the Third Party Data and disclaims all warranties or representations about the Third Party Data including that the Third Party Data is accurate, complete, current, suitable or sufficient.

17. Liability

17.1 Limitation of liability

To the extent permitted by law, TSC’s liability for breach of this agreement, or in tort (including negligence) or for any other common law or statutory cause of action:

(a) excludes any loss or damage which is incidental, consequential, special, exemplary, punitive or indirect or is a loss of profits, revenue, anticipated savings, business opportunity or goodwill;

(b) excludes liability for loss or corruption of data; and

(c) is otherwise limited to the total amount of the fees paid to TSC under this agreement in the 12 months preceding the event giving rise to the liability.

17.2 Implied terms and consumer guarantees

To the extent permitted by law, any term, condition or warranty which would otherwise be implied into this agreement is excluded.  Where a consumer guarantee or term implied by law cannot be excluded, TSC’s aggregate liability for any breach of the guarantee or term is limited at its option to supplying the services again or paying the cost of having the services supplied again.

17.3 Indemnity

The Licensee indemnifies TSC from and against any loss (including reasonable legal costs and expenses), damage, expense or liability incurred by TSC, where such loss, damage, expense or liability arose out of, in connection with, or in respect to:

(a) a breach of this agreement, or negligence relevant to this agreement, by the Licensee or its Users;

(b) TSC’s use of Licensee Data in accordance with this agreement; and

(c) subject to clause 10.2(a), the Licensee or a User’s use of or reliance on HearHub or other acts or omissions relating to HearHub.

18. General

18.1 Amendments

TSC may amend these terms and conditions from time to time by no less than one month’s Notice to the Licensee. The amended terms and conditions will apply to this agreement from the date set out in the Notice unless the Licensee Notifies TSC that it wishes to terminate the agreement pursuant to clause 15.1.

18.2 Assignment

Either party may assign its rights under this agreement.  Before the Licensee assigns its rights, it must obtain the prior consent of TSC which it will not unreasonably withhold.

18.3 Entire agreement

This agreement constitutes the entire agreement between TSC and the Licensee in relation to its subject matter. The Licensee acknowledge that it has not relied on any term, condition, representation, warranty, matter or statement in entering into this agreement other than as set out in this agreement.

18.4 Events beyond control

A party is not liable for delay or failure to perform an obligation to the extent that is due to an event beyond its reasonable control. A party must promptly act to mitigate or avoid the impact of the event.

18.5 Governing law

This agreement is governed by and construed in accordance with the law of New South Wales, Australia. The parties submit to the jurisdiction of the Courts of New South Wales, Australia.

18.6 Interpretation

In this agreement:

(a) headings are for convenience only and do not affect interpretation; and

unless the context otherwise requires:

(b) an obligation or a liability assumed by, or a right conferred on, 2 or more persons binds or benefits them jointly and severally;

(c) person includes an individual, the estate of an individual, a corporation, an authority, an association or a joint venture (whether incorporated or unincorporated), a partnership and a trust;

(d) words importing the singular include the plural and vice versa;

(e) to the extent of any inconsistency between the terms in this document and another part of this agreement, the terms in this document prevail; and

(f)  includes in any form is not a word of limitation.

18.7 Notices

Each Notice under this agreement:

(a) must be in writing;

(b) may be delivered by hand, posted by prepaid post or sent by email; and

(c) is taken to be received by the addressee:

(i)on the third day after the date of posting;

(ii)  in the case of delivery by email, at the time the email is sent (provided the sender has not received notice that the email was not delivered); and

(iii) in the case of delivery by hand, on delivery.

18.8 Subcontracting

TSC may subcontract its obligations under this agreement.

18.9 Waiver

The failure by a party to enforce a provision of this agreement will not be interpreted as a waiver unless expressly waived in writing. A waiver of a specific breach of a term of this agreement does not constitute a waiver in respect of any subsequent breach of that term or of any other term.

19. Definitions

In this agreement:

• Business Day means a day that is not a weekend or a gazetted public holiday in New South Wales, Australia or the days between Boxing Day and New Year’s Day.

Child means a person under the age of 18 years.

Cochlear Competitor means:

(a) any person, firm, corporation, partnership, joint venture, association or government agency that is engaged in (or has ownership or control of) any enterprise or business activity which competes directly with any business of Cochlear or of any Cochlear subsidiary as at 27 April 2021;

(b) any manufacturer or distributor of remedial hearing devices, which includes but is not limited to auditory brainstem implants, cochlear implants, bone conduction devices, active osseointegrated steady-state implants, and middle ear devices;

(c) any clinic owned by or operated by any of the above in paragraphs (a) and (b); and

(d) any foundation or comparable organisation which is owned by or operated by any of the above in paragraphs (a) and (b).

A Cochlear Competitor does not include a clinic or early intervention centre involved in the provision of remedial hearing devices, provided that the clinic or early intervention centre is not owned or operated by any of the above in paragraphs (a) and (b).

Commencement Date means the date the Licensee accepts the terms of this agreement.

Data means information, documents, text, images, video, audio or other data stored or distributed by any means.

Documentation means documentation provided by TSC, including documentation which helps Users understand how to use HearHub.

Funder of Implantable Hearing Services or Devices means an organisation which provides funding for implantable hearing services or devices, including a company, government, insurance company or any payor (including those that administer tenders).

HearHub means the platform containing digital tools that hearing healthcare professionals can use to assist children’s listening and communications skills provided by the Shepherd Centre.  The HearHub also includes a dedicated Learning Environment if selected by the Licensee as part of its Subscription.

Intellectual Property Rights includes all present and future rights in relation to copyright, trade marks, designs, patents, trade, business or company names, trade secret, confidential or other proprietary rights, or any rights to registration of such rights whether created before or after the date of this agreement, and whether existing in Australia or otherwise.

Learning Environment means the customisable platform within HearHub that enables a Licensee to build specific training modules for use within their organisation.

Licensee Data means:

(a) Data entered into HearHub by the Licensee or its Users or otherwise provided by the Licensee or its Users to TSC for the purpose of this agreement; and

(b) any Data entered into or created in the Learning Environment by the Licensee or its Users.

Notice means:

(a) a communication that meets the requirements of clause 18.7 and is issued in accordance with this agreement; or

(b) any action by the Licensee through the HearHub self-service portal which would otherwise require written notice to TSC.

Privacy Policy means the privacy policy available at https://hearhub.org, as updated from time to time.

Staff means directors, officers, employees, agents and contractors of the Licensee.

Subscription means the Subscription Model selected and purchased by the Licensee in accordance with this agreement.

Subscription Model means the models available for purchase for the use of HearHub, including the Learning Environment, and are described at: https://hearhub.org, or as advised by TSC, as updated from time to time.

Term means the period of the agreement in clause 3.

Third Party Data means Data provided by third parties and made available through HearHub,

User means a member of Staff of the Licensee authorised by the Licensee to use HearHub under this agreement.

User Credential means a user name or password.