Connected Care Terms of Use

What’s changed in these terms:

- These terms are now applicable to the Nucleus Smart App (for professional logins only);

- We have made the following key changes to the SmartNav Specific Terms:

o Users are now required to install updates to the SmartNav app and ensure that they have a secure internet connection to enable log-in to SmartNav;

o For Subscriptions, users are responsible from delivery for any damage to the iPads during the Subscription. Where the iPad has been lost or returned to us with Data, we reserve the right to delete all Data stored on the iPad;

o If available in your country, new paragraph 4 containing terms which are applicable for users who have opted in to enable the new optional Session Archive feature on the SmartNav app:

▪ Users are responsible for ensuring that the System is securely connected to the internet to enable Session Archive to work;

▪ As we cannot guarantee that users can always retrieve the surgical session data in Session Archive, Users remain responsible for the backup of all data stored locally on the iPad and ensuring that only authorised users can access the surgical session data;

▪ Users must contact our Customer Service team to either delete or return the surgical session data stored in Session Archive within 180 days of disabling Session Archive or terminating the SmartNav Service. Otherwise, we reserve the right to delete the surgical session data.

- We agree to notify you of any future changes to these terms.

These Connected Care Terms of Use (“Agreement”) govern the use of the Cochlear services listed at clause 20 of this Agreement (the “Services”). Note, not all Services are available in all countries.

The Services are owned by Cochlear Limited and operated by it or its affiliates listed in clause 17 ("us", "we", or "our").

You and/or any entities you represent (“you” or “your”) agree to be bound by this Agreement, including any Service Specific Terms by 1. using or otherwise accessing ("Using", "Use" or "Uses") any Services and/or 2. clicking a box indicating acceptance and/or 3. Entering into a commercial agreement that references this Agreement. This Agreement supersedes and replaces all prior agreements, oral or written, between you and us regarding the Services. An individual creating a Cochlear Professional Account or accepting this Agreement on behalf of a legal entity / healthcare organisation, represents that they have the authority to bind such legal entity / healthcare organisation and its affiliates to this Agreement. In the event and to the extent of an inconsistency between the General Terms and any Service Specific Terms, the Service Specific Terms will prevail in respect of the Service to which those Service Specific Terms relate.

You agree to ensure that any person who Uses the Services at your direction or on your behalf complies with this Agreement. If you or an entity you represent does not wish to be bound by this Agreement, neither you nor the entity you represent may Use the Services.

1. GRANT OF LICENCE

1.1 Unless we have expressly agreed otherwise in a written agreement signed by us, any software we provide to you as part of the Services is subject to this Agreement. Subject at all times to your compliance with this Agreement, we grant to you until expiry or termination of this Agreement a non-exclusive, non-transferable, non-assignable, non-sublicensable personal licence to Use such software solely with the Services to facilitate your provision of healthcare services to Recipients or potential Recipients of our products or services. Any such software is licensed and not sold.

2. DISCLAIMER & COCHLEAR’S RESPONSIBILITIES

2.1 If you reside in Australia, the European Economic Area, the United Kingdom, Switzerland, New Zealand or any other applicable jurisdictions with mandatory guarantees or legal requirements, we acknowledge that there are certain guarantees, warranties, terms and conditions (including in respect of refunds and returns) imposed by the law relating to the supply of goods and services which the law expressly provides may not be excluded, restricted or modified or may only be limited to a certain extent ("Statutory Obligations"). Nothing in this Agreement excludes, restricts or modifies the Statutory Obligations, otherwise than as permitted by law.

For consumers living in Australia: Our goods and services come with guarantees that cannot be excluded under the Australian Consumer Law. You are entitled to a replacement or refund for a major failure and for compensation for any other reasonably foreseeable loss or damage. You are also entitled to have the goods repaired or replaced if the goods fail to be of acceptable quality and the failure does not amount to a major failure.

If you reside in New Zealand and are acquiring the Services for a business purpose: You accept that the Consumer Guarantees Act 1993 will not apply to the Services

2.2 Subject to the Statutory Obligations and other applicable law:

2.2.1 except as otherwise provided herein, the Services is provided 'as is' and without any guarantee, warranty or condition, either express or implied, including without limitation, warranties of merchantability, title, non-infringement, fitness for a particular purpose or that the Services will be secure, uninterrupted or error free. Except as otherwise provided herein, you expressly agree that your Use of, or ability to Use the Services, is at your own risk;

2.2.2 You acknowledge that (i) the Services do not provide medical advice, a diagnosis or other recommendation for treatment or form a healthcare professional relationship between us and any Recipient; (ii) while information provided by the Services may enhance the quality of clinical care, it is not a substitute for the professional judgment of a health care professional and in no event should any such information be used as the sole or primary basis for clinical decision-making or reasoning; and (iii) You are solely responsible for interpretation of any information, materials, results or data made available through the Services, the assessment of a Recipient’s or potential Recipient’s need for our products, Services, or other health care services, and the provision of any related medical advice or treatment to such Recipient;

2.2.3 You acknowledge that (i) given the nature of telecommunications systems (including our reliance on systems and services that we do not own or control), we do not promise that the Services will be continuous or fault free, and (ii) we have no control over, and have no duty to take any action, regarding, any facts, faults or omissions of any third party telecommunications systems, networks or operators (including, without limitation, suspension or termination of our service providers’ connections, or faults in or failures of their apparatus or network), in the jurisdictions in which they operate;

2.2.4 unless otherwise stated in any Service Specific Terms, the Services are provided without any obligation to provide support, upgrades, maintenance, bug patches or fixes ("Support Services"). If we elect to provide Support Services to you, such Support Services will be provided 'as is' and without any guarantee, warranty or condition, either express or implied;

2.2.5 we do not guarantee, represent or warrant that the information, or any advice, opinion, statement or representation contained in or accessible through the Services is accurate, suitable for your purposes or without errors or omissions. Without limiting the foregoing, if we provide links to websites operated by third parties through the Services and you decide to visit or acquire any linked third-party website, you do so at your own risk and we do not endorse any information, products or services described in such linked third-party websites;

2.2.6 although all reasonable care has been taken in the development and implementation of the Services to guard against defects or vulnerabilities (including regular security tests and code reviews on software and hardware), we cannot guarantee, represent or warrant that the Services are virus, worm, defect or Trojan horse free, and therefore it is your responsibility to secure your own systems-, and method of accessing the Services; and

2.2.7 You agree that all portions of the Services are our proprietary and confidential information and will be treated by you as confidential. Unless we agree otherwise in writing, you may not disclose information obtained from the Services to any third party other than to facilitate your provision of healthcare services to Recipients or potential Recipients of our products or services. These obligations of confidentiality do not apply to any information which is already in the public domain, other than through a breach by you of these obligations, or which is required to be disclosed by law or a regulatory body.

2.3 Cochlear represents and warrants that:

2.3.1 it owns or licenses all Intellectual Property Rights in the Services and has the authority to grant the rights subject to this Agreement; and

2.3.2 the Services do not and will not infringe the Intellectual Property Rights of any third parties.

2.4 You acknowledge that your Use of the Services may be interfered with by numerous factors outside of our control.

2.5 Subject to the Statutory Obligations and other applicable law, we make no guarantees, representations or warranties on behalf of, and accept no responsibility for services made available in or through the Services by people other than us.

3. RULES FOR USING THE SERVICES

3.1 You agree that each time you Use the Services you will not:

3.1.1 provide in-person or telehealth services to a Recipient unless you are licensed to provide such services pursuant to applicable laws and regulations;

3.1.2 use the Services with devices or systems other than Cochlear’s systems or devices in accordance with their instructions for use;

3.1.3 act in violation of this Agreement or any applicable laws, including the Privacy Law;

3.1.4 use the Services in any manner which may expose us or our service providers to civil or criminal liability or regulatory enforcement;

3.1.5 violate the rights of any person (including us), including trade secrets, privacy rights, confidentiality rights, or Intellectual Property Rights (as defined in clause 19.7);

3.1.6 use the Services in any manner which is not reasonable and/or not in accordance with the purposes for which it is made available to you, such as off-label use, or to build a similar or competitive product;

3.1.7 use the Services (directly or indirectly) for any activity which is obscene, indecent or offensive and/or which defames, abuses, harasses, stalks, threatens, menaces or offends any person;

3.1.8 use any device, software, process or means to access, retrieve, scrape or index any content on or from the Services and/or to interfere, or attempt to interfere, with the proper working of the Services;

3.1.9 provide false identity information to gain access to or use the Services, or pose as any person or attempt to solicit money, passwords or Personal Information (as defined in clause 19.7) from any person and/or to gain access, or attempt to gain access, to any secured portion of the Services to which you do not possess express access rights;

3.1.10 reproduce, republish, retransmit, modify, adapt, distribute or redistribute, translate, create derivative works or adaptations of, publicly display, sell, trade, or in any way exploit the Services or any content on the Services, except as expressly authorised by us;

3.1.11 remove, alter, cover or obfuscate any copyright, trademark or other propriety rights notices on or embedded in the Services;

3.1.12 reverse engineer, decompile, disassemble all or any portion of the Services or otherwise attempt to gain access to the human-readable computer programming language (ie source code) version of the Services; and/or

3.1.13 intentionally transmit, or attempt to transmit, any computer viruses, worms, defects, Trojan horses or other items of a destructive nature that do, or are designed to, interrupt, destroy, change or limit the functionality of the Services or any other computer software, hardware or other electronic equipment or information which in any way impinges on another user's use or enjoyment of the Services, or otherwise breaches, or encourages other users to breach, this Agreement.

3.2 In Using the Services, you acknowledge that certain minimum system requirements apply. Such minimum system requirements may change over time and will be supplied to you upon request. You are responsible for the proper configuration, maintenance, backup and security of any computing and/or networking equipment to enable your connection to and Use of the Services.

3.3 You must not attempt to circumvent or break any security mechanism of the Services, or Use the Services in a manner that poses a security or other risk to us, our service providers, or any third party. You must notify us immediately (and in any event, within 24 hours) of any unauthorised use of any username or password or any other known or suspected breach of security and use reasonable efforts to stop any unauthorised use of the Services that is known or suspected by you. We may exercise whatever means we deem necessary to prevent unauthorised Use of the Services, including instituting technological barriers or reporting the conduct to any person or governmental agency.

3.4 We reserve the right to take any steps we believe is necessary to (i) satisfy any applicable law, regulation, legal process or governmental agency request; (ii) enforce this Agreement, including investigation of potential violations thereof; (iii) detect, prevent, or otherwise address fraud, security or technical issues; (iv) respond to your support requests; or (v) protect our rights, property or safety or those of our customers, end user, and/or public. You agree to provide us with any information we reasonably request to investigate and resolve problems relating to your Use of the Services.

4. INTELLECTUAL PROPERTY

4.1 All Intellectual Property Rights in the Services are owned by or licensed to us, unless otherwise expressly notified by us.

4.2 Any feedback you provide to us about the Services, whether through the Services, email, verbal communications or feedback forums will be and remain our exclusive property, and we may use such feedback in any manner we deem appropriate without providing notice or compensation to you, and without seeking your permission. By providing feedback, you hereby assign and agree to assign to us all worldwide rights, title and interests in your feedback, including all copyrights and other Intellectual Property Rights in your feedback. This means, for example, that we can use your comment or idea to modify or improve the Services, or to make changes to our products or services, or in any other way we want without restriction, and we do not have to compensate you. For this reason, you must not provide us with any feedback that you do not wish us to use.

4.3 You represent and warrant that you do now, or will prior to your Use of the Services, own or have a licence to all Intellectual Property Rights in all data provided by you to Cochlear through or in connection with your Use of the Services ("Data").

4.4 You grant to us a limited licence to use and disclose the Data to the extent necessary to provide the Services service in compliance with this Agreement and applicable law.

4.5 We do not guarantee any back-up or other storage of any Data and we are not required to make any Data available to you, other than as required by Privacy Law.

5. DATA PROTECTION

5.1 If you provide Data to us which contains Personal Information, the Personal Information we collect from you will be handled in accordance with this clause 5 and the Cochlear Global Privacy Notice (to the extent applicable).

5.2 Responsibilities under European Data Protection Law: Where European Data Protection Law applies to the processing of any Personal Information we collect from you in connection with the Services, the terms of the Connected Care Data Processing Agreement (“DPA”) will govern such processing.

5.3 Responsibilities under Non-European Data Protection Law: If Non-European Data Protection Law applies to any Personal Information we collect from you in connection with the Services:

5.3.1 without limiting any of your obligations to us, you warrant that the Personal Information has been obtained in accordance with Privacy Law, and we are authorised (either by consent of the individual or otherwise by Privacy Law) to receive the Personal Information from you, and use, share and otherwise process the Personal Information in accordance with this Agreement;

5.3.2 each party will comply with any obligations applicable to it under that law with respect to the processing of Personal Information, and, in particular, will (and ensure its employees and contractors will): (i) keep Personal Information confidential and disclose it only on a need- to-know basis in accordance with this Agreement; (ii) adequately protect against unauthorised or unlawful access to or processing of Personal Information and against accidental loss or destruction or disclosure of, or damage to, Personal Information; and (iii) ensure it has an appropriate data breach response plan in place to handle any actual or suspected data breach affecting Personal Information; and

5.3.3 we may use or otherwise process De-identified Data processed in connection with the Services (including features enabled in the Services) for (i) evaluating, improving and/or developing our products and services; (ii) developing new products and services; and (iii) analytics and scientific research.

5.4 Notwithstanding any other provision of this Agreement, any disputes or claims (including non-contractual disputes or claims) arising out of or in connection with Personal Information we collect from you in connection with the Services or this clause 5 shall be governed by and construed in accordance with the DPA (where applicable) or otherwise in accordance with the laws of the country where you are located.

5.5 If you access the Services from the United States, You acknowledge that a Business Associate Agreement is not required under HIPAA, as further described by the U.S. Department of Health and Human Services, and any sharing of Personal Information, including Protected Health Information, shall fit within HIPAA’s treatment exception.

5.6 If you access the Services from China, You acknowledge that in order to provide you with the Services, we may need to transfer your Personal Information outside China. If we do this, we will take necessary measures to ensure that overseas recipient meets the Personal Information standards of protection required by data protection laws in China.

6. ACCOUNTS, PASSWORDS AND SECURITY OF THE SERVICES

6.1 You may be required to establish a Cochlear™ Professional Account to access and use the Services. You warrant that you are authorized to access and use the Services and will do so consistent with applicable law.

6.2 You or any entity with which you are affiliated (acting on your behalf) (“Associated Entity") may request a Cochlear Professional Account online from the myCochlear Professional portal (mCP) and request you to be associated with that Associated Entity. Your Associated Entities may be contacted by Cochlear to verify and approve your request. You agree not to use any false, inaccurate or misleading information when requesting a Cochlear Professional Account. You acknowledge and agree that Cochlear relies upon you and your Associated Entities to validate your legal right to view and modify the patient records in mCP that are linked to those Associated Entities.

6.3 Use of the Services is password protected through Cochlear Professional Account credentials. If your Cochlear Professional Account profile is linked to an entity, you warrant upon each Use of the Services that you are properly authorised by that entity for such Use. You must memorise your password and store your password in a safe and secure place. You agree that you will not disclose your password or allow your password to be used by any person who is not authorised pursuant to this Agreement to access or use your password and you are responsible and liable to us for any Use of the Services by anyone using your password.

6.4 You and/or the Associated Entity agree to notify us if your Cochlear Professional Account should no longer be linked to that Associated Entity (for example, if you cease your employment with such entity) via myCochlear Professional portal or by contacting our Customer Service team for your country or region.

6.5 Subject to the Statutory Obligations and other applicable law, we accept no responsibility for breaches of security or unauthorised access to the Services.

7. UPDATES AND CHANGES TO SERVICES

7.1 We regularly make updates to the Services to improve performance and add new features and functionality by issuing patches, bug fixes, updates, upgrades or other modifications (“Updates”). Unless otherwise specified in any Service Specific Terms:

7.1.1 if the Services are downloaded as an application, we make the updates available to you for download or, if applicable and your device settings (as enabled by you) permit, by automatically sending you Updates. You are not obliged to download any Updates; however, we may cease to provide and/or update content from previous versions of the Services and, depending on the nature of the Update, in some circumstances you may not be able to continue using the Services until you have downloaded the updated version;

7.1.2 if the Services are not downloaded as an application, we automatically implement such Updates without providing any further notice to you.

7.2 We reserve the right to change or discontinue the Services, in particular to extend, limit or discontinue these, while taking reasonable account of your interests. Insofar as it is reasonable and necessary, taking into consideration your interests, we will notify you with reasonable notice of any material change or the discontinuation of any functions.

8. ANONYMOUS USAGE INFORMATION

8.1 Unless otherwise specified in any Service Specific Terms, the Services may automatically collect and send diagnostic and usage information to Cochlear. This includes information on how you use certain features and functions within the Services and crash reports. Unless you give us express consent to do otherwise, this information is collected and sent anonymously and will not be associated with your customer profile. Cochlear will use this information to inform the maintenance and development of Cochlear’s products and services.

9. PAYMENTS AND CHARGES FOR USE OF THE SERVICES

9.1 In certain jurisdictions, it may be agreed that fees will be charged for your Use of certain Services (“Cochlear Fees”). In such cases, You agree to pay the Cochlear Fees in accordance with this Agreement and as set forth in any applicable additional agreements until you notify us of termination as set forth in clause 14.1.

9.2 You may charge Recipients in connection with your provision of healthcare services facilitated by your Use of the Services (“Recipient Charges”). If you decide to do so, you:

9.2.1 are solely responsible for the processing and administration of payments in connection with Recipient Charges in compliance with all applicable laws (including communication of information about transactions, refunds, adjustments, and the handling of disputes);

9.2.2 represent and warrant that you will not unlawfully file any claims for reimbursement from any third-party insurer, including any federal or state-funded program, in connection with Recipient Charges; and

9.2.3 acknowledge that we are not responsible for or liable to you in connection with payments for Recipient Charges made by a Recipient which are later disputed or the subject of a refund request by the Recipient, which are made in error, or which violate any applicable laws.

10. LIMITATION OF LIABILITY

10.1 To the maximum extent permitted by law but subject to the Statutory Obligations and excluding any indemnification obligations, neither party nor any of its directors, officers, employees, principals or contractors shall have any liability to the other party in contract, tort, statute or in any other way (whether arising from negligence or otherwise): (i) for any indirect, special, incidental, or consequential damage or loss of any kind; (ii) for loss of profits or goodwill, loss of revenue or business opportunities, business interruption, costs, charges or expenses of procurement of substitute goods or technology, or for any damage for personal injury or loss of Data; and (iii) arising from interferences, interruptions, computer viruses, breakdowns or disconnection that may prevent access, navigation and/or use of the Services, even if the other party has been advised of the possibility of such damages.

10.2 Without prejudice to clause 10.1, to the maximum extent permitted by law but subject to the Statutory Obligations and excluding any indemnification obligations, in no event shall either party’s total liability in respect of a Service exceed the greater of: (a) the amount of Cochlear Fees paid by you for that Service in the 12-month period preceding the first claim; or (b) five hundred US dollars (US$500.00).

10.3 Clauses 10.1 and 10.2 do not apply to the extent applicable local laws do not allow us to limit or exclude our liability for damages caused by an injury to life, body or health or for damages caused by our wilful misconduct or negligence. However, we will not be liable for any damage to the extent caused by a third party or by your wilful misconduct or negligence and/or your breach of any provision or express warranty set out in this Agreement or any Service Specific Terms.

11. INDEMNITY

11.1 You will at all times indemnify and will continue to indemnify, hold harmless and defend us and our officers, employees, principals and contractors (“Our Indemnified”) against all losses, whether direct or indirect, including all liabilities, damages, costs and expenses (including all legal costs determined on a full indemnity basis), suffered or incurred by any of Our Indemnified arising out of or in connection with any claims brought by third parties arising from your negligence, wilful misconduct, and/or breach of clause 3 or any express warranty set out in this Agreement by you or by any person using your login information. To the extent that the indemnity in this clause 11 refers to persons other than us, we hold this indemnity on trust for those other persons.

11.2 Cochlear will at all times indemnify and will continue to indemnify, hold harmless and defend you and your officers, employees, principals and contractors (“Your Indemnified”) against all losses, whether direct or indirect, including all liabilities, damages, costs and expenses (including all legal costs determined on a full indemnity basis), suffered or incurred by any of Your Indemnified arising out of or in connection with any claims brought by third parties arising from our breach of any express warranty set out in this Agreement.

11.3 In defence or settlement of a claim relating to any actual or alleged infringement or violation of Intellectual Property Rights by Cochlear, we may, at our election, obtain for you the right to continue using the Services, replace or modify the Services to ensure its non-infringement, or terminate this Agreement upon written notice to you. Further, no indemnity obligations shall arise for such claims where they arise as a result of your Use of the Services in violation of this Agreement and/or your failure to use any Updates provided by Cochlear to avoid an infringement claim or failure to install upgrades provided by Cochlear in a timely manner.

11.4 If any third party makes a claim, or notifies an intention to make a claim,, relevant to clauses 11.1 or 11.2 of this Agreement, the party against which the claim is made (the “Indemnified Party”) shall:

11.4.1 as soon as reasonably practicable, give written notice of the claim to the other party (the “Indemnifying Party”), specifying the nature of the claim in reasonable detail;

11.4.2 not make any admission of liability, agreement or compromise in relation to the claim without the prior written consent of the Indemnifying Party (such consent not to be unreasonably conditioned, withheld or delayed);

11.4.3 give the Indemnifying Party and its professional advisers access at reasonable times (on reasonable prior notice) to its premises and its officers, directors, employees, agents, representatives or advisers, and to any relevant assets, accounts, documents and records within the power or control of the Indemnified Party, so as to enable the Indemnifying Party and its professional advisers to examine them and to make copies (at the Indemnifying Party’s expense) for the purpose of assessing the claim; and

11.4.4 subject to the Indemnifying Party providing security to the Indemnified Party’s reasonable satisfaction against any claim, liability, costs, expenses, damages or losses which may be incurred, take such action as the Indemnifying Party may reasonably request to avoid, dispute compromise or defend the claim.

12. RESTRICTION ON DISTRIBUTION

The Services may be subject to export laws and regulations. We do not authorise you to ship or export the Services or any portion thereof to any country or jurisdiction other than the country or jurisdiction in which you acquired it. Without limiting the foregoing, you agree that you will comply with all such export laws and regulations and will not ship or export any data, information, software programs and/or materials in connection with the Services or any portion thereof to any country or jurisdiction to which such shipment or export would be prohibited under any law

13. MODIFCATIONS TO THESE TERMS

13.1 We reserve the right to change any terms of this Agreement at any time by providing you with notice and a link to the latest terms when you log-in to the Services (“Modifications”). Your acceptance of the updated terms during log-in constitutes your acceptance of the relevant Modifications. If you do not agree to the Modifications, you must stop Using the relevant Services.

14. STOPPING YOUR USE OF THE SERVICES

14.1 You may terminate this Agreement in respect of one or more of the Services by giving us 30 days’ notice by contacting our Customer Service team for your country or region. We reserve the right to terminate, temporarily block, suspend or otherwise deny your Use of one or more of the Services for breach (including for non-payment of Cochlear Fees) or when continuing to provide the Services to you would expose us or our service providers to civil or criminal liability or regulatory enforcement, and, subject to the Statutory Obligations and other applicable law, at no cost or liability to you. We will notify you prior to, or as soon as reasonably practicable after, any suspension, termination or other blockage of your Use of any Services. Any unpaid Cochlear Fees shall be immediately due and payable upon termination of your Use of the relevant Services.

14.2 We may change, remove or discontinue any of the Services or any features or functionality of any of the Services from time to time. We will notify you in advance of any material change to or discontinuation of any Services.

15. EFFECT OF TERMINATION

15.1 Upon termination of this Agreement in respect of a Service (“Terminated Service”);

15.1.1 all your rights under this Agreement in respect of the Terminated Service will immediately terminate;

15.1.2 you must immediately cease Use of the Terminated Service;

15.1.3 any post-termination assistance from us in respect of the Terminated Service is subject to mutual agreement;

15.1.4 unless otherwise specified in a Service Specific Term, we will delete Data associated with the Terminated Service or will otherwise disassociate it from you and your Cochlear Professional Account (subject to any applicable Privacy Law or Statutory Obligations). As a result, you may no longer be able to access the Terminated Service (or any Data that is stored on that Service). You should have a regular backup plan; and

15.1.5 you will promptly pay any outstanding Cochlear Fees for the Terminated Service, if applicable, that you have incurred up to the date of termination.

15.2 If you or we close or cancel your Cochlear Professional Account, and you have no other Cochlear Professional Account that is able to access the Services, we may immediately terminate your Services.

16. NOTICES

Any formal notices or communications to Cochlear under or relating to this Agreement must be provided in writing and shall be addressed to: Cochlear Limited, 1 University Avenue, Macquarie University, NSW 2109 Australia, ATTN: Group General Counsel.

17. GOVERNING LAW AND CONTRACTING ENTITY

17.1 Subject to clause 17.3, if you access the Services from:

17.1.1 North America, this Agreement are governed by the laws of the State of Colorado, USA, and the Services is provided by Cochlear Americas;

17.1.2 Latin America, this Agreement are governed and interpreted under the laws of the Republic of Panama and the Services is provided by Cochlear Latinoamérica S.A.;

17.1.3 Europe, the Middle East or Africa, this Agreement are governed by the laws of England and the Services is provided by Cochlear Europe Limited; or

17.1.4 Asia, Australia or elsewhere not covered by this clause, this Agreement are governed by the laws of the State of New South Wales, Australia, and the Services is provided by Cochlear Limited.

17.2 Subject to clause 17.3, You agree to submit to the exclusive jurisdiction of the courts and courts of appeal from them in the jurisdiction of the governing law applicable to you in accordance with clause 17.1 and you agree that you will not object to the exercise of such jurisdiction by those courts on any basis.

17.3 Your local laws may require it to govern or may give you the right to resolve disputes in another forum or jurisdiction, in which case clauses 17.1 and 17.2 apply only to the extent that such local laws allow.

18. SURVIVAL

Clauses 2.1-2.2, 2.4-2.5, 5.4, 9, 10, 11 and 15-19 of this Agreement survive the termination (for any reason) or expiry of this Agreement.

19. MISCELLANEOUS PROVISIONS & TERMINOLOGY

19.1 These Terms which, for the avoidance of doubt, include Modifications accepted pursuant to this Agreement contain everything that we and you have agreed in relation to the subject matter dealt with by this Agreement. You cannot rely on an earlier written document or anything said or done by or on behalf of us that are not contained in this Agreement. We will not be bound by any term, condition or other provision which is different from or in addition to the provisions contained in this Agreement (whether or not it would materially alter this Agreement) and which is submitted by you in any confirmation, correspondence or any other document.

19.2 Any of our additional software acquired by you that are not Services ("Additional Software") will be on separate stand-alone terms and conditions ("Additional Software Terms"). In the event and to the extent of an inconsistency between this Agreement and any Additional Software Terms, this Agreement will prevail in respect of the Services or any part of it and the Additional Software Terms will prevail in respect of the Additional Software or any part of it.

19.3 In the interpretation of this Agreement, the following applies unless the context otherwise requires:

19.3.1 headings are inserted for convenience only and do not affect the interpretation of this Agreement;

19.3.2 a reference in this Agreement to any law, legislation, legislative provision, statute, regulation or code includes any statutory modification, amendment or re–enactment, and any subordinate legislation or regulations issued under that legislation or legislative provision, and any re-statement of a code;

19.3.3 an expression importing a natural person includes any company, trust, partnership, joint venture, association, body corporate or governmental agency; and

19.3.4 a reference to the word "include" or "including" is to be interpreted without limitation.

19.4 Subject to the Statutory Obligations and other applicable law, we are not liable to you for any delay in performing, or failure to perform, any of our obligations if such delay or failure is due to a Force Majeure Event (as defined in clause 19.7).

19.5 Each provision of this Agreement is individually severable. If any provision is or becomes illegal, unenforceable or invalid in any jurisdiction it is to be treated as being severed from this Agreement in the relevant jurisdiction, but the rest of this Agreement will not be affected. The legality, validity and enforceability of the provision in any other jurisdiction will not be affected.

19.6 A waiver of any right, power or remedy under this Agreement by either party must be in writing signed by both parties. A waiver by either party only affects the particular obligation or breach for which it is given, and it is not an implied waiver of any other obligation or breach or an implied waiver of that obligation or breach on any other occasion. The fact that either party fails to do, or delay in doing, something that it is entitled to do under this Agreement does not amount to a waiver by the party.

19.7 In this Agreement, the following definitions apply:

"Additional Software" has the meaning given to that term in clause 19.2.

"Additional Software Terms" has the meaning given to that term in clause 19.2.

“Associated Entity” has the meaning given to that term in clause 6.2.

"Cochlear Fees" has the meaning given to that term in clause 9.1.

"Data" has the meaning given to that term in clause 4.3.

"DPA" has the meaning given to that term in clause 5.2.

“De-identified Data” means Data where all identifying information has been obscured or removed such that it is not reasonably likely that an individual can be identified from such data.

“EU GDPR” means Regulation (EU) 2016/679 of the European Parliament and of the Council of 27 April 2016 on the protection of natural persons with regard to the processing of personal data and on the free movement of such data, and repealing Directive 95/46/EC.

“European Data Protection Law” means as applicable EU GDPR, the Federal Data Protection Act of 19 June 1992 (Switzerland) and the UK GDPR, as amended from time to time.

"Force Majeure Event" means any event or other occurrence which is beyond our reasonable control.

“General Terms” means the terms in clauses 1 to 19 of this Agreement.

“HIPAA” means the Health Insurance Portability and Accountability Act of 1996, Public Law 104-191, the regulations enacted by the Department of Health and Human Services at 45 CFR Parts 142, 160-164, and requirements of the Health Information Technology for Economic and Clinical Health Act (“HITECH”), as incorporated in the American Recovery and Reinvestment Act of 2009 and any regulations promulgated pursuant thereto, as amended from time to time.

“Indemnified Party” has the meaning given to that term in clause 11.4.

“Indemnifying Party” has the meaning given to that term in clause 11.4.

"Intellectual Property Rights" means all intellectual property rights at any time recognised by law, including:

(a) patents, copyright (including future copyright), circuit layout rights, designs, trademarks, business names, whether registered or not, trade secrets, know–how and other intellectual property rights; and

(b) any application or right to apply for registration of any of the rights referred to in paragraph (a).

"Modifications" has the meaning given to that term in clause 13.1.

“Non-European Data Protection Law” means data protection or privacy laws in force outside the European Economic Area, Switzerland and the UK, as amended from time to time.

“Our Indemnified” has the meaning given to that term in clause 11.1.

"Personal Information" means any information or an opinion about an identified individual, or an individual who is reasonably identifiable (including information forming part of a database), whether true or not, and whether recorded in material form or not and includes 'sensitive information' (as that term is defined in the Privacy Law).

"Privacy Law" means as applicable, EU Data Protection Law and Non-European Data Protection Law.

“Protected Health Information” has the meaning given to that term under HIPAA.

“Recipient " means a recipient of a Cochlear™ hearing implant.

"Recipient Charges" has the meaning given to that term in clause 9.2.

"Services" means the services set out in clause 20 of this Agreement.

"Service Specific Terms" means any terms applicable to a specific Service that are attached to this Agreement.

"Statutory Obligations" has the meaning given to that term in clause 2.1.

“Support Services” has the meaning given to that term in clause 2.2.4.

"Terminated Service" has the meaning given to that term in clause 15.1.

"Updates" has the meaning given to that term in clause 7.1.

“Your Indemnified” has the meaning give to that term in clause 11.2.

20. PRODUCTS AND SERVICES TO WHICH TERMS APPLY

20.1 The General Terms and any Service Specific Terms apply to the following products and services:

• myCochlear Professional (mCP) portal: Cochlear’s online patient and data management portal for clinicians, and the gateway to our Remote Care solutions. mCP streamlines device registration and service requests, and provides access to applications and professional resources which enhance delivery of care by clinicians to patients.
• Remote Check: a suite of patient-administered hearing health checks (facilitated via the patient’s Nucleus Smart App) which enables quality cochlear implant care to be provided by clinicians to patients without a clinic visit. Clinicians access Remote Check from the myCochlear Professional Portal.
• Remote Assist (CI): a feature accessed through the Custom Sound® Pro software that allows clinicians to connect remotely with recipients of Cochlear™ Nucleus® hearing implants via synchronous video, audio or chat for consultation purposes.
• Remote Assist (Acoustics): a feature accessed through the Baha® fitting software that allows clinicians to connect remotely with recipients of Cochlear™ Baha® systems via synchronous video, audio or chat for consultation purposes.
• SmartNav: a software application which provides wireless, real-time, actionable intraoperative insights that deliver added assurance in surgical outcomes for surgeons and their patients. Nucleus® SmartNav helps surgeons track and monitor electrode insertion to achieve the desired placement and hearing outcomes. Results can be provided from surgeon to clinician.
• Nucleus Smart App (professional log-in): an app which empowers users to manage their devices and hearing experience from a compatible Apple or Android smartphone or Apple Watch and allows users to stay connected and better monitor performance in the real world.

Note not all Services are available in all countries. Please contact your local Cochlear representative for more information.

Cochlear™ NUCLEUS® SMARTNAV SYSTEM SERVICE SPECIFIC TERMS

DEFINITIONS

Unless otherwise indicated, terms defined in the Agreement shall retain their meanings in these Cochlear™ Nucleus® SmartNav System Service Specific Terms (“SmartNav Specific Terms”).

Customer Owned Device means any components of the System that you own or have purchased outright.

Cochlear Fees has the meaning given to that term in clause 9.1 of the Agreement.

Initial Subscription Term has the meaning given to that term in clause 6 of the SmartNav Specific Terms.

Session Archive means the optional feature of the Nucleus SmartNav application which enables patient surgical sessions to be stored and subsequently retrieved from Cochlear’s cloud by an authorised user of the Nucleus SmartNav application.

Subscription means your non-exclusive, non-transferrable and non-sublicensable right to the use the System for the Subscription Term.

Subscription Term means the Initial Subscription Term and any subsequent renewal.

System means the SmartNav application, surgical sound processor(s) and accessories, and iPad(s) and accessories.

GENERAL

1. You agree that you and your staff will use the System in accordance with any instructions provided by us and in accordance with any operating manuals, guidelines, and related documentation. You must ensure you have a secure internet connection to enable your log-in to the SmartNav application.

2. If your device settings permit, you may automatically receive Updates for one or more components of the System. You must promptly install any Updates we make available. If you do not do so, you may not be able to continue using the System until you have installed the updated version.

3. Before sending any component of the System to us for whatever reason, you must do the following:

i. Clean all components of the System being sent in accordance with their instructions for use;

ii. Use the appropriate packaging and appropriately labelled courier satchel; and

iii. Where the component being sent is an iPad:

A. Delete the SmartNav application, all patient and personal data and all files from the iPad and any email accounts configured on the iPad; and

B. Return all accessories provided to you together with the iPad (including case, AC power adaptor and USB-C cable).

4. If available in your country and you have opted in to have Session Archive enabled, you acknowledge and agree that:

a Session Archive requires internet connectivity and you are responsible for ensuring that the System is connected to a secure internet connection to ensure the storage of patient surgical sessions following surgery and the retrieval of a patient’s surgical session from the Session Archive;

b The patient surgical session data stored in the Session Archive is not available for import into Custom Sound Pro;

c Cochlear does not guarantee that you will always be able to retrieve a patient’s surgical session data from the Session Archive;

d You remain responsible for ensuring that only authorized Users access any surgical session data;

e You remain responsible for the backup and other protection of all Data stored locally on the iPad (including surgical session data) against loss, damage, or destruction by third parties and Cochlear is not liable for any loss that occurs due to you not separately backing up the Data; and

f The Session Archive will remain enabled unless you provide written notice to the Cochlear Customer Service team to disable the Session Archive.

g If you disable Session Archive or discontinue the use of System, you must provide written instruction to the Cochlear Customer Service team within 180 days to either delete or return surgical session data in the Session Archive. If you do not do so, Cochlear reserves the right to delete the surgical session data in the Session Archive in accordance with the applicable Privacy Laws.

SUBSCRIPTION

5. The terms in paragraphs 5 to 12 below shall not apply to any Customer Owned Devices.

6. The Subscription includes:

a. Access to the System for the duration of the Subscription Term;

b. Replacement of faulty iPads or surgical processors, and provision of new surgical processors necessary to support new implants; and

c. Customer support for the System.

7. The System is provided to you for the duration of the Subscription Term. Title in the System remains with Cochlear and on delivery, risk in the System will pass to you. You are responsible for the management of the System and you will be responsible for any loss or damage to the System during the Subscription Term.

8. The Initial Subscription Term will be the period indicated on the invoice and will automatically re-new for the same period unless terminated by you in accordance with clause 14.1 of the Agreement at least 30 days before the end of the then-current Subscription Term.

9. Where the System under your Subscription includes an iPad, you agree that:

a. the iPad is for the sole use with SmartNav application and cannot be used or configured for other use;

b. we may replace the iPad every three (3) years, however we reserve the right to adjust this period;

c. You will use the iPad for clinic business purposes only and will not permit a third party to use the iPad without our prior written approval;

d. You will use and maintain and keep the iPad in as good operating condition as when delivered to you, except for ordinary wear and tear;

e. iPad configuration (including SmartNav application updates) is specified by us and will be managed remotely by our service provider;

f. Where the iPad has been supplied with a SIM card, you will only use the SIM Card data for the purpose of using SmartNav; and

g. Cochlear reserves the right to remotely delete all Data stored on the iPad where the iPad is lost or stolen while in your possession, when you return the iPad to us for repair or replacement, or if you fail to return the iPad following Termination of your Subscription.

10. Upon termination of your Subscription:

a. you agree to return all components of the System to us in their entirety, in good working order and in accordance with paragraph 3 above; and

b. you acknowledge and agree that you will not be entitled to any refund of the Cochlear Fees.

11. If you fail to return any component of the System following Termination of your Subscription or if any component of the System is lost or stolen, misused, mishandled or damaged while in your possession or during the Subscription Term or the manufacturer’s warranty is not applicable, you agree that, whilst reserving any other rights Cochlear may have under the law, Cochlear may charge you for all costs, losses, expenses, and damages incurred by us in recovering possession of, repair or replacement of the System thereof.

12. Invoicing by Cochlear

a. Unless otherwise agreed, we will invoice you for the Cochlear Fees, consistent with your Subscription, or as set forth in any Applicable Agreement.

b. You must pay the invoice within the time periods and in the manner described on our invoice and if not so described on the invoice within 60 days of the date of the invoice;

c. We reserve the right to adjust the Cochlear Fees on renewal(s) of the Subscription Term. If applicable, we will provide you with 60 days’ notice of the new pricing for the Cochlear Fees. If you do not accept the revised pricing, you may terminate the Subscription in accordance with clause 14 of the Agreement and you must comply with paragraph 3 above;

d. You acknowledge that you have the authority to enter this contractual arrangement and legally bind your organization to invoice you for the Cochlear Fees (you may terminate at any time pursuant to clause 14 of the Agreement).

Cochlear™ REMOTE CHECK / REMOTE ASSIST (CI) / REMOTE ASSIST (ACOUSTICS)

SERVICE SPECIFIC TERMS

DEFINITIONS

Remote Care means the Remote Check Service together with either the Remote Assist (CI) or Remote Assist (Acoustics) Services.

STRIPE PAYMENT GATEWAY

In jurisdictions where Stripe is enabled to allow you to collect payment for Recipient Charges from patients for Remote Care Services and you choose to use this feature:

1. You must register an account with Stripe, Inc or one of its affiliates (“Stripe”) in accordance with Stripe’s requirements, which may include providing Stripe with additional information regarding your intended use of the Stripe’s services outside of the relevant Services, and agreeing to Stripe’s “Services Agreement” and “Stripe Connected Account Agreement”. Note you are prohibited from collecting online payments for prescription medication without prior approval from Stripe;

2. You authorize us:

a. to onboard your Stripe Account to the relevant Remote Care Services via Stripe Connect, at which point it becomes a “Connected Account”. As a Connected Account, we will be able to view your Stripe account dashboard and access the same information as you do, including:

i. your customers;

ii. payouts of funds from your Stripe account to your bank account(s);

iii. the Recipient Charges amount you charge Recipients, and any other products or services you choose to process through your Connected Account;

iv. transaction-related information (including settlement, payment status, refunds, and dispute status) you process through your Connected Account; and

v. reports related to the above,
(collectively, your “Connected Account Data”). If you wish to use Stripe’s services to process transactions for products or services unrelated to the relevant Services, we recommend that you create a separate Stripe account that is not a Connected Account so we are not able to view these transactions.

b. to communicate with Recipients about the relevant Remote Care Services and your services; and

c. to perform or conduct any other activity as contemplated herein.

3. You acknowledge that:

a. Stripe has a list of restricted businesses (which may include telehealth services) that are prohibited from using Stripe’s services without prior authorization. While we have obtained an exemption for our use of Stripe’s services with the relevant Remote Care Services, it remains your responsibility to ensure you are entitled to use the Stripe services to process transactions for Recipient Charges and other uses outside of the relevant Remote Care Services;

b. you have a direct contractual relationship with Stripe, and therefore:

i. Stripe may deduct fees from your Stripe Account balance;

ii. support for Stripe’s services are provided by Stripe and not by us; and

iii. you must: (A) accurately communicate, and not misrepresent, the nature of the transaction, and the amount of the Recipient Charges in the appropriate currency prior to submitting it to the Stripe API; (B) provide a receipt that accurately describes each transaction for Recipient Charges to Recipients; (C) provide Recipients a meaningful way to contact you in the event that the product or service is not provided as described; (D) not use Stripe’s services to sell products or services in a manner that is unfair or deceptive, exposes Recipients to unreasonable risks, or does not disclose material terms of a purchase in advance; and (E) inform Recipients that Stripe and its affiliates process transactions (including payment transactions) for you; (F) maintain and make available to Recipients a fair and neutral return, refund, cancellation, or adjustment policy, and clearly explain the process by which Recipients can receive a refund; and

c. you have a direct contractual relationship with Recipients, and therefore:

i. you must provide Recipients with disclosures required by law, and to not engage in unfair, deceptive, fraudulent or abusive acts or practices;

ii. if you use Stripe’s services to submit recurring or subscription Recipient Charges, you agree to comply with applicable laws and payment method rules, including clearly informing Recipients in advance of submitting the initial Recipient Charge that they will be charged on an ongoing basis and explaining the method for unsubscribing or cancelling their recurring billing or subscription; and

iii. if you use Stripe’s services to issue invoices to your Recipients, you understand and agree that it is your responsibility to ensure that the form and content of the invoices comply with applicable laws, and are sufficient to achieve any legal or tax effect that you are trying to achieve.

d. you remain responsible for any fees, fines, refunds, reversals, returns and disputes with Stripe, Recipients or third-party payment method providers in connection with the processing of transactions for Recipient Charges through, or your other uses of, Stripe’s services.<

INVOICING BY COCHLEAR

4. Unless otherwise agreed in writing, we will invoice you for the Cochlear Fees annually, consistent with your Remote Care subscription package;

5. You must pay the invoice within the time periods and in the manner described on our invoice and if not so described on the invoice within 30 days of the date of the invoice;

6. You acknowledge that you have the authority to enter into this contractual arrangement and legally bind your organization to invoice you for the Cochlear Fees (you may terminate at any time pursuant to Clause 14 of the Agreement).