HSS-EIM Telehealth Certification Program Terms

Last Updated: July 18, 2022

The HSS-EIM Telehealth Certification Program (the “Program”) is offered by New York Society for the Relief of the Ruptured and Crippled, maintaining the Hospital for Special Surgery dba Hospital for Special Surgery (“HSS”) and Evidence in Motion, LLC (“EIM”). HSS and EIM may be referred to together as the “Program Operators”. You (the individual enrolling in the Program) and the Program Operators may each be referred to as a “Party” and together as the “Parties”.

By enrolling in the Program, you agree to these HSS-EIM Telehealth Certification Program Terms (this “Agreement”). This Agreement is a binding agreement between you and the Program Operators and governs your participation in the Program and your rights and obligations with respect to the Program.  You understand that you will have two chances to pass the Certification Exam before a further fee for the Program will apply.

THIS AGREEMENT INCLUDES IN SECTIONS 13 AND 14, RESPECTIVELY, A WAIVER OF JURY TRIAL AND A CLASS ACTION WAIVER, WHICH AFFECT YOUR RIGHTS.

The Program Operators will have the right to update this Agreement from time to time, with or without notice to you, by posting an updated version of this Agreement to the Platform (defined below). Your continued participation in the Program following such posting will constitute your acceptance of, and agreement to, the updated version of this Agreement.

1. Eligibility. You represent and warrant to the Program Operators that: (i) you are above the age of 18 or, if higher, the age of majority in the state in which you reside and you have the capacity to enter into legally binding agreements, (ii) you possess all licenses necessary to practice as a physical therapist (if applicable), and (iii) all information provided by you in enrolling and participating in the Program is complete, true and accurate (collectively, the “Eligibility Criteria”).
2. Enrollment and Term. This Agreement is effective as of the first date on which you satisfy all Eligibility Criteria, complete enrollment in the Program and have paid to the applicable Program Operator the Program enrollment fee specified by the Program Operators (the “Effective Date”). All Program-related fees are non-refundable and your enrollment in the Program is non-cancellable. The term of this Agreement (the “Term”) will commence on the Effective Date and will end at such time as the Program Operators terminate of this Agreement in accordance with its terms.
3. Platform. The platform through which you may access your Program account and Program Materials (defined below) (the “Platform”) is hosted, managed and operated by EIM. Your use of the Platform, and your rights and obligations with respect thereto, will be as set forth in the Terms of Service of the Platform and the Privacy Policy.
4. Limited License. Subject to your compliance with the terms of this Agreement, your satisfaction of all Eligibility Criteria and your payment to the Program Operators of the Program enrollment fee specified by the Program Operators, the Program Operators grant to you, during the Term, (i) a non-exclusive, non-assignable, non-sublicensable, personal right and license to access on the Platform and display, solely for your own educational purposes in preparing for the Program’s certification examination (the “Exam”), the Program materials (including, without limitation, the Exam) made available to you on the Platform (the “Program Materials”), and (ii) if you pass the Exam, a non-exclusive, non-assignable, non-sublicensable, personal right and license to use the official Program graphic logo (in the form provided by the Program Operators, as may be updated from time to time by the Program Operators) (the “Certification Mark”), without modification and in accordance with the Program Operators’ style guide, solely to identify yourself as a physical therapist who is telehealth certified by the Program; provided, however, that you will not have any right to, and will not, authorize or permit any entity to market, advertise or promote that its employed, contracted or affiliated physical therapists are certified by the Program.
5. Restrictions. You agree that you (i) will maintain the confidentiality of all Program Materials and will not share, reproduce, publish, disclose, publicly display or make available to anyone else any Program Material (or any part thereof), (ii) will maintain the secrecy of your Platform account login credentials and not share them with anyone else, and (iii) will not modify or create any derivatives of any Program Material or the Certification Mark or otherwise use any Program Material or the Certification Mark for any purpose other than that which is expressly licensed by Section 4 during the Term.
6. Certification Database. You agree that the Program Operators will have in perpetuity the right to store and include your name, date of birth, date of Program certification, and if applicable, status as a pre-licensed student, in a database of Program certified therapists and/or students (the “Database”), to publish such information, to enable users to search such database to determine whether you are Program certified and to display the results of such search. It is your responsibility to ensure that the information about you in the Database is accurate and up to date.
7. Marketing. You agree that the Program Operators and their respective affiliates will have the right to use your name, email address and mailing address to email or mail you communications about products and services offered by them.
8. Ownership of Program Materials, Certification Mark and Database. As between you and the Program Operators, the Program Operators own and shall retain ownership of all right, title and interest in and to all Program Materials, the Certification Mark and the Database. All rights not expressly granted by the Program Operators to you pursuant to Section 4 are reserved by the Program Operators.
9. Termination. The Program Operators will have the right to terminate this Agreement immediately upon written notice to you (which may be provided via email to the email address associated with your Program account) if you breach this Agreement. Sections 5-15 (inclusive) of this Agreement will survive any expiration or termination of this Agreement. In the event (i) you lose your physical therapist license, (ii) you are subject to professional discipline or (iii) allegations of professional misconduct are brought against you, including, without limitation, for breach of a duty, patient abuse, sexual misconduct, fraud, misrepresentation, improper recordkeeping, medication violations or substance abuse, the Program Operators will have the right to terminate this Agreement immediately upon written notice to you.
10. These Terms provide that all disputes between you and the Program Operators that in any way relate to this Agreement or your use of the Program Materials will be resolved by BINDING ARBITRATION. ACCORDINGLY, YOU AGREE TO GIVE UP YOUR RIGHT TO GO TO COURT (INCLUDING IN A CLASS ACTION PROCEEDING) TO ASSERT AND DEFEND YOUR RIGHTS UNDER THE TERMS. Your rights will be determined by a neutral arbitrator and not a judge or jury. 

 

You agree that, by agreeing to these Terms, the U.S. Federal Arbitration Act governs the interpretation and enforcement of this provision, and that you and the Program Operators are each waiving the right to a trial by jury or to participate in a class action. This arbitration provision shall survive termination of these Terms and any other contractual relationship between you and the Program Operators.

 

If you desire to assert a claim against either or both of the Program Operators, and you therefore elect to seek arbitration, you must first send to both Program Operators, by certified mail, a written notice of your claim (“Claim Notice”). The Claim Notice to HSS should be addressed to: Hospital for Special Surgery. Attn: Legal Dept. 535 E 70th Street, New York, NY 10021 (“Notice Address”). The Claim Notice to EIM should be addressed to: Evidence in Motion. Attn: Legal Dept 16414 San Pedro Avenue Suite 805, San Antonio TX 78232 (“Notice Address”). If either Program Operator desires to assert a claim against you and therefore elects to seek arbitration, it will send, by certified mail, a written Claim Notice to the most recent address we have on file or otherwise in our records for you. A Claim Notice, whether sent by you or by a Program Operator, must (a) describe the nature and basis of the claim or dispute; and (b) set forth the specific relief sought (“Demand”). If the Program Operator(s) and you do not reach an agreement to resolve the claim within 30 days after the Claim Notice is received, you or the Program Operator(s) may commence an arbitration proceeding or file a claim in small claims court. During the arbitration, the amount of any settlement offer made by the Program Operator(s) or you shall not be disclosed to the arbitrator. You may download or copy a form Notice and a form to initiate arbitration from the American Arbitration Association at www.adr.org. If you are required to pay a filing fee, after the Program Operator(s) receives notice at the Notice Address that you have commenced arbitration, it will promptly reimburse you for your payment of the filing fee, unless your claim is for more than US $10,000.

 

The arbitration will be governed by the Commercial Arbitration Rules and the Supplementary Procedures for Consumer Related Disputes (collectively, “AAA Rules”) of the American Arbitration Association (“AAA”), as modified by these Terms, and will be administered by the AAA. The AAA Rules and Forms are available online at www.adr.org, by calling the AAA at 1-800-778-7879, or by requesting them from us by writing to us at the Notice Address. The arbitrator is bound by these Terms. All issues are for the arbitrator to decide, including issues relating to the scope and enforceability of these Terms, including this arbitration agreement. Unless HSS and you agree otherwise, any arbitration hearings will take place in New York, New York. (If you reside outside of the United States, any arbitration hearings will take place in your country of residence at a location reasonably convenient to you, but will remain subject to the AAA Rules including the AAA rules regarding the selection of an arbitrator). If your claim is for US $10,000 or less, we agree that you may choose whether the arbitration will be conducted solely on the basis of documents submitted to the arbitrator, through a telephonic hearing, or by an in-person hearing as established by the AAA Rules. If your claim exceeds US $10,000, the right to a hearing will be determined by the AAA Rules. Regardless of the manner in which the arbitration is conducted, the arbitrator shall issue a reasoned written decision sufficient to explain the essential findings and conclusions on which the award is based. If the arbitrator issues you an award that is greater than the value of the Program Operator(s)’s last written settlement offer made before an arbitrator was selected (or if HSS did not make a settlement offer before an arbitrator was selected), then the Program Operator(s) will pay you the amount of the award or US $1,000, whichever is greater. Except as expressly set forth herein, the payment of all filing, administration, and arbitrator fees will be governed by the AAA Rules. Each party shall pay for its own costs and attorneys’ fees, if any. However, if any party prevails on a statutory claim that affords the prevailing party attorneys’ fees, or if there is a written agreement providing for payment or recovery attorneys’ fees, the arbitrator may award reasonable fees to the prevailing party, under the standards for fee shifting provided by law.

 

Unless both you and the Program Operator(s) agree otherwise, the arbitrator may not consolidate more than one person’s claims with your claims, and may not otherwise preside over any form of a representative or class proceeding. The arbitrator may award declaratory or injunctive relief only in favor of the individual party seeking relief and only to the extent necessary to provide relief warranted by that party’s individual claim.

 

If this Agreement to Arbitrate provision is found to be unenforceable, then (a) the entirety of this arbitration provision shall be null and void, but the remaining provisions of these shall remain in full force and effect; and (b) exclusive jurisdiction and venue for any claims will be in state or federal courts located in and for New York, New York.

11. No Warranties. EXCEPT AS EXPRESSLY SET FORTH IN THIS AGREEMENT, NEITHER PROGRAM OPERATOR MAKES ANY REPRESENTATIONS OR WARRANTIES, EXPRESS OR IMPLIED, INCLUDING BUT NOT LIMITED TO ANY WARRANTY OF ACCURACY, COMPLETENESS, PERFORMANCE, MERCHANTABILITY, FITNESS FOR A PARTICULAR PURPOSE, OR COMMERCIAL UTILITY WITH RESPECT TO THE PROGRAM, THE PROGRAM MATERIALS, THE CERTIFICATION MARK, THE DATABASE OR THE PLATFORM.
12. Disclaimers and Limitations of Liability. NOTWITHSTANDING ANYTHING TO THE CONTRARY IN THIS AGREEMENT, (I) TO THE FULLEST EXTENT PERMITTED BY APPLICABLE LAW, NEITHER PROGRAM OPERATOR WILL BE LIABLE TO YOU OR TO ANY OTHER PERSON FOR ANY CONSEQUENTIAL, INCIDENTAL, INDIRECT, EXEMPLARY, SPECIAL, PUNITIVE, OR ENHANCED DAMAGES, OR FOR ANY LOSS OF ACTUAL OR ANTICIPATED PROFITS (REGARDLESS OF HOW THESE ARE CLASSIFIED AS DAMAGES), WHETHER ARISING OUT OF BREACH OF CONTRACT, TORT (INCLUDING NEGLIGENCE OR STRICT LIABILITY), STATUTE, OR OTHERWISE (INCLUDING THE ENTRY INTO, PERFORMANCE, OR BREACH OF THIS AGREEMENT), REGARDLESS OF WHETHER SUCH DAMAGE WAS FORESEEABLE AND WHETHER EITHER PARTY HAS BEEN ADVISED OF THE POSSIBILITY OF SUCH DAMAGES, AND (II) THE PROGRAM OPERATORS’ AGGREGATE LIABILITY TO YOU IN CONNECTION WITH THIS AGREEMENT WILL NOT IN ANY EVENT EXCEED THE TOTAL PROGRAM ENROLLMENT FEES PAID BY YOU TO THE PROGRAM OPERATORS.
13. CLASS ACTION WAIVER. WITH RESPECT TO ANY DISPUTE RELATING TO THIS AGREEMENT, YOU HEREBY WAIVE: (I) THE RIGHT TO PARTICIPATE IN A CLASS ACTION, PRIVATE ATTORNEY GENERAL ACTION OR OTHER REPRESENTATIVE ACTION IN COURT OR IN ARBITRATION, EITHER AS A CLASS REPRESENTATIVE OR CLASS MEMBER; AND (II) THE RIGHT TO JOIN OR CONSOLIDATE CLAIMS WITH CLAIMS OF ANY OTHER PERSON. YOU AGREE NOT TO ENGAGE IN ANY OF THE FOREGOING ACTIVITIES.
14. Severability. As long as no Party is materially prejudiced, the provisions of this Agreement are severable, and in the event that any provision of this Agreement is determined to be invalid or unenforceable under any controlling body of the law, such invalidity or unenforceability will not in any way affect the validity or enforceability of the remaining provisions of this Agreement.