Terms and Conditions - WNY Health Education and Equipment

Terms and Conditions

The following are the terms and conditions for use of the Western New York Healthcare Education, LLC service described herein (the “Service”) between Western New York Healthcare Education, LLC and you (either an individual or a legal entity that you represent as an authorized employee or agent) (“You”). Please read them carefully. BY COMPLETING THE REGISTRATION PROCESS AND/OR USING THE SERVICE, OR CLICKING THE “SUBMIT” BUTTON, YOU ARE STATING THAT YOU ARE ELIGIBLE FOR AN ACCOUNT AND THAT YOU AGREE TO BE BOUND BY ALL OF THESE TERMS AND CONDITIONS OF THE SERVICE (“AGREEMENT”). The Service is offered to you conditioned on your acceptance without modification of the terms, conditions, and notices contained herein.

DEFINITIONS
1. “Account” refers to the billing account for the Service.
1. “Documentation” means any accompanying documentation made available to You by Western New York Healthcare Education, LLC for use with the Training Videos, including any documentation available online or otherwise.
1. “Servers” means the servers, either wholly owned or leased for use from third parties, by Western New York Healthcare Education, LLC (or by its other registered entity, Western New York Healthcare Equipment, LLC) upon which the Training Videos and Customer Data are stored.
1. “Training Videos” means the video content that is provided by Western new York Healthcare Education.
FEES AND SERVICES
1. Western New York Healthcare Education, LLC may change its fees and payment policies for the Service from time to time including but not limited to the addition of costs for excessive data transfer rates for individual or corporate customers.
1. The changes to the fees or payment policies are effective upon Your acceptance of such changes which will be posted at www.wnyhe.com (or such other URL Western New York Healthcare Education, LLC may provide from time to time). Unless otherwise stated, all fees are quoted in United States Dollars. Any outstanding balance becomes immediately due and payable upon termination of this Agreement for any reason and any collection expenses (including attorneys’ fees) incurred by Western New York Healthcare Education, LLC will be included in the amount owed, and may be charged to the credit card or other billing mechanism associated with your Western New York Healthcare Education, LLC account.
MEMBER ACCOUNT, PASSWORD, AND SECURITY
1. To register for the Service, You must complete the registration process by providing Western New York Healthcare Education, LLC with current, complete and accurate information as prompted by the registration form, including Your e-mail address (username) and password. You shall protect your passwords and take full responsibility for Your own, and third party, use of Your accounts. You are solely responsible for any and all activities that occur under Your Account. You agree to notify Western New York Healthcare Education, LLC immediately upon learning of any unauthorized use of Your Account or any other breach of security. From time to time, Western new York Healthcare Education’s (or Western New York Healthcare Equipment, LLC’) support staff may log in to the Service under Your customer password in order to maintain or improve service, including to provide You assistance with technical or billing issues. You hereby acknowledge and consent to such access.
1. By registering and creating an account on any of our websites (e.g. as a student, a class attendee, a volunteer, an employer coordinator, a teacher, a partner or other similar institution) for the purpose of viewing either in-person or online content, you are agreeing to these Terms in addition to any other terms and conditions that may apply to you, in separate acknowledged agreement.
1. Access to our sites is permitted on a temporary basis, and we reserve the right to withdraw or amend the service we provide on our sites without notice.
1. From time to time, we may restrict access to some parts, or the entirety of, our sites to users who have registered with us.
1. If you choose, or you are provided with, a username or user identification code, password or any other information as part of our security procedures, you must treat that information as confidential, and you must not disclose it to any third party. We have the right to disable any username or user identification code or password, whether chosen by you or allocated by us, at any time, if in our opinion you have failed to comply with any of these Terms or the terms of any of our programs.
NONEXCLUSIVE LICENSE
1. Western New York Healthcare Education, LLC hereby grants You a limited, revocable, non-exclusive, non-sublicensable license to attend live in-person classes at its training center in Depew, New York, and/or to view video files that reside on www.wnyhe.com (collectively, the “Website”). Subject to the terms and conditions of this Agreement, You may remotely access and view training videos. Your license of, use of, and access to the Western New York Healthcare Education, LLC training videos (which may include, without limitation, the additional related Software and Documentation) is conditioned upon Your compliance with the terms and conditions of the Agreement, including the following:
1. You will not nor will You allow any third party to (i) copy, modify, adapt, translate or otherwise create derivative works of the Western New York Healthcare Education, LLC training materials; (ii) reverse engineer, de-compile, disassemble or otherwise attempt to discover the source file content of the training videos, except as expressly permitted by the law in effect in the jurisdiction in which You are located; (iii) rent, lease, sell, assign or otherwise transfer rights in or to the training videos, the Documentation or the Service; (iv) remove any proprietary notices or labels on the training materials or placed by the Service; or (v) use, post, transmit or introduce any device, software or routine which interferes or attempts to interfere with the operation of the Service or the Software. You will use the Software, Service and Reports solely for Your own internal use, and will not make the Software or Service available for timesharing, application service provider or other such similar service use. You will comply with all applicable laws and regulations in Your use of and access to the Documentation, Training Videos, Service and Reports;
1. This license will terminate immediately if You fail to comply with the terms of this Agreement. Upon such termination, You must not access www.wnyhe.com or related services, nor attend in-person trainings at the Depew, New York training center site.
CANCELLATIONS
1. If you have purchased and attended an in-person course, or if you have purchased an online course and have already accessed, downloaded all or part of the online course and/or started to use that course, then you shall have no right to cancel your order.
1. You may cancel your purchase of an in-person or online course within a period of up to 3 business day before the beginning of the class a 5% credit card fee will be applied.
1. You may defer the start date of your in-person or online course, or change to another online course, at any time up to 3 business day day prior to the relevant start date, subject to availability on your chosen online course and upon payment by you of any difference in the course fees payable for the two courses, without any administration costs as applicable. Any other cancellations may incur a reasonable administrative charge, which will be outlined in the communications to you upon your cancellation or re-scheduling of the course.
1. Western New York Healthcare, LLC reserves the right to cancel any in-person or online course at any time prior to its scheduled termination date. If Western New York Healthcare, LLC cancels an in-person or online course prior to its scheduled termination date, you will be entitled to a pro rata refund of the course fee.
1. If you or Western New York Healthcare Education, LLC cancel an in-person or online course as per above, Western New York Healthcare Education, LLC will refund the relevant portion of the course fee to you via your original method of payment (less any relevant delivery charges notified to You upon Your cancellation) within 28 days of receiving your notice of cancellation/giving notice to you of such cancellation.
1. If you cancel an in-person or online course, Western New York Healthcare Education, LLC will deduct from any refund of your course fee the cost of all applicable delivery charges, including delivery charges paid to deliver any physical study materials to you.
1. If physical study materials accompany Your in-person or online course, and these have been dispatched to you prior to you cancelling your place on the course, then you must return them to Western New York Healthcare Education, LLC at the address listed on www.wnyhe.com/contact-us in a reasonable and resalable condition (for audio, video or software products this means in the sealed package in which they were delivered). Any physical study materials returned to Western New York Healthcare Education, LLC will be at your own risk. You will be responsible for payment of any delivery charges incurred in returning the physical study materials to Western New York Healthcare Education, LLC.
1. Western New York Healthcare Education, LLC reserves the right to withhold payment of part or all of your course fee refund until any physical study materials have been returned to Western New York Healthcare Education, LLC.
COURSE VOUCHERS
1. Where you have purchased or acquired course vouchers or similar coupon codes to be used as full or partial payment for an in-person or online course, where so entered online during the payment process, these vouchers will be subject to the terms and conditions of the relevant individual provider and to these Terms and Conditions set forth by Western New York Healthcare Education, LLC. Such vouchers are only usable by the individual in possession of the voucher and are non-transferable to any other party, nor are such vouchers refundable once they have been used for booking a course.
TECHNICAL SUPPORT AND ACCESS FOR ONLINE COURSES
1. If you are unable to access an online course, Western New York Healthcare Education, LLC will use reasonable endeavors to provide a solution where Western New York Healthcare Education, LLC has direct control over the system, software or settings involved. If the issue lies with your hardware, systems, software or settings thereof, Western New York Healthcare Education, LLC may, in its discretion, provide assistance to you to help you resolve the issue but we cannot guarantee that any assistance provided will resolve your issue.
1. You accept and acknowledge that periods of downtime may be required in respect of the information technology infrastructure connected to the Website and that technical assistance may not be available during such periods of downtime. Further you accept that you will not have a claim for breach of contract or otherwise in respect of such period of unavailability.
1. Western New York Healthcare Education, LLC will use reasonable endeavors to make the Online Course available but cannot guarantee uninterrupted, timely or error free availability or that defects will be corrected. Western New York Healthcare Education, LLC reserves the right to suspend access to the Website for the purpose of scheduled or emergency maintenance, repairs or upgrades to improve the performance or functionality of the Website.
1. You also accept and acknowledge that Western New York Healthcare Education, LLC cannot be held responsible for any delay or disruptions to your access to the online course as a result of such suspension or any of the following:
1. (a) the operation of the internet and the world wide web, including but not limited to viruses;
1. (b) any firewall restrictions that have been placed on your network or the computer you are using to access the Online Course;
1. (c) failures of telecommunications links and equipment; or
1. (d) updated browser issues.
VIRUSES, HACKING, AND OTHER OFFENCES
1. You must not misuse our sites by knowingly introducing viruses, trojans, worms, logic bombs or other material which is malicious or technologically harmful. You must not attempt to gain unauthorized access to our sites, the server on which our sites are stored or any server, computer or database connected to our sites. You must not attack our sites via a denial-of-service attack or a distributed denial-of service attack. We may co-operate with law enforcement authorities in relation to any such misuse, including by disclosing your identity to them.
1. We do not guarantee that our sites will be secure or free from bugs or viruses. You are responsible for configuring your information technology, computer programs and platform in order to access our sites. You should use your own virus protection software. We will not be liable for any loss or damage caused by a virus, distributed denial-of-service attack, or other technologically harmful material that may infect your computer equipment, computer programs, data or other proprietary material due to your use of our sites or to your downloading of any content on them, or on any website linked to them.
SAFEGUARDING
1. Some videos on our site may include material of a medical nature that is not suitable for children. We are not responsible for performing any checks or validations required to ensure the safeguarding of children or vulnerable adults. However, we reserve the right to restrict access to our sites or any programs run by us, and/or to refer information to the appropriate authorities, if we suspect that a user who has registered with us has harmed or poses a risk of harm to children or vulnerable adults.
LINKING TO OUR SITES
1. You may link to our home page only (URL: www.wnyhe.com), and to no other page on the website, and only provided you do so in a way that is, in our opinion, fair and legal and does not damage our reputation or take advantage of it, but you must not establish a link in such a way as to suggest any form of association, approval or endorsement on our part where none exists.
1. We reserve the right to withdraw linking permission without notice. The websites from which you are linking must comply in all respects with the representations and warranties above relating to User Content (as if that websites and its contents were User Content).
1. You must not establish a link from any websites that are not owned by you. Our sites must not be framed on any other sites, nor may you create a link to any part of our sites other than the home page.
1. If you wish to make any use of material on our sites other than as set out above, please contact us using the details available at https://www.wnyhe.com/contact-us.
LINKS FROM OUR SITES
1. Where our sites contain links to other sites and resources provided by third parties, including links to external webpages that are part of training courses, these links are provided for your information only. We have no control over the contents of those sites or resources, and accept no responsibility for them or for any loss or damage that may arise from your use of them. Links to other sites that occur as a suggested part of any training are subject to change at any time. Should these affect your training experience in any way, we encourage you to contact Western New York Healthcare Education, LLC immediately at https://www.wnyhe.com/contact-us to allow us to provide alternative suggested external videos for training purposes.
INDIVIDUAL AGREEMENTS
1. From time to time, we may enter into a separate written agreement with you. In the event of any inconsistency between the terms of that agreement and these Terms, the terms of that separate agreement shall prevail.
CONFIDENTIALITY
1. “Confidential Information” includes any proprietary data and any other information disclosed by one party to the other in writing and marked “confidential” or disclosed orally and, within five business days, reduced to writing and marked “confidential”. Notwithstanding the foregoing, Confidential Information will not include any information that is or becomes known to the general public, which is already in the receiving party’s possession prior to disclosure by a party or which is independently developed by the receiving party without the use of Confidential Information. Neither party will use or disclose the other party’s Confidential Information without the other’s prior written consent except for the purpose of performing its obligations under this Agreement or if required by law, regulation or court order. In which case, the party being compelled to disclose Confidential Information will give the other party as much notice as is reasonably practicable prior to disclosing such information. Upon termination of this Agreement, the parties will promptly either return or destroy all Confidential Information and, upon request, provide written certification of such. You are responsible for safeguarding the confidentiality of Your password(s) and user name(s) issued to You by Western new York Healthcare Education, and for any use or misuse of Your account resulting from any third party using a password or user name issued to You. You agree to immediately notify Western New York Healthcare Education, LLC of any unauthorized use of Your account or any other breach of security known to You.
INFORMATION RIGHTS AND PUBLICITY
1. Western New York Healthcare Education, LLC (and its registered company Western New York Healthcare Equipment, LLC) may retain and use such other URL as Western New York Healthcare Education, LLC may provide from time to time, information collected in Your use of the Service. Western New York Healthcare Education, LLC will not share information associated with You or your Site with any third parties unless Western New York Healthcare Education, LLC (i) has Your consent; (ii) concludes that it is required by law or has a good faith belief that access, preservation or disclosure of such information is reasonably necessary to protect the rights, property or safety of Western new York Healthcare Education, its users or the public; or (iii) provides such information in certain limited circumstances to third parties to carry out tasks on Western new York Healthcare Education’s behalf (e.g., billing or data storage) with strict restrictions that prevent the data from being used or shared except as directed by Western New York Healthcare Education, LLC . When this is done, it is subject to agreements that oblige those parties to process such information only on Western New York Healthcare Education’s instructions and in compliance with this Agreement and appropriate confidentiality and security measures.
PRIVACY
1. You will not (and will not allow any third party to) attempt to copy, record or reverse engineer any Training Videos or Documentation supplied by Western New York Healthcare Education, LLC or stored on the Western New York Healthcare Education, LLC (or related) websites.
INDEMNIFICATION
1. You agree to indemnify, hold harmless and defend Western New York Healthcare Education, LLC and Western New York Healthcare Equipment, LLC, at Your expense, any and all third-party claims, actions, proceedings, and suits brought against Western New York Healthcare Education, LLC or any of its officers, directors, employees, agents or affiliates, and all related liabilities, damages, settlements, penalties, fines, costs or expenses (including, without limitation, reasonable attorneys’ fees and other litigation expenses) incurred by Western New York Healthcare Education, LLC or any of its officers, directors, employees, agents or affiliates, arising out of or relating to (i) Your breach of any term or condition of this Agreement, (ii) Your use of the Service, (iii) Your violations of applicable laws, rules or regulations in connection with the Service, or (iv) Your Brand Features. In such a case, Western New York Healthcare Education, LLC will provide You with written notice of such claim, suit or action. You shall cooperate as fully as reasonably required in the defense of any claim. Western New York Healthcare Education, LLC reserves the right, at its own expense, to assume the exclusive defense and control of any matter subject to indemnification by You.
THIRD PARTIES
1. If You provide access to Your Account or any portion thereof to any third party or use the Service to collect information on behalf of any third party (“Third Party”), whether or not You are authorized to do so by Western New York Healthcare Education, LLC or Western New York Healthcare Equipment, LLC, the terms of this Section 9 shall apply to You.
1. If You use the Service on behalf of any Third Party, You represent and warrant that (a) You are authorized to act on behalf of, and bind to this Agreement, that Third Party , (b) as between the Third Party and You, the Third Party owns any rights to Training Videos in the applicable account, and (c) You shall not disclose Third Party’s Training Videos to any other party without the Third Party’s consent.
1. You shall ensure that each Third Party is bound by and abides by the terms of this Agreement. Western New York Healthcare Education, LLC and Western New York Healthcare Equipment, LLC make no representations or warranties for the direct or indirect benefit of any Third Party. With respect to Third Parties, You shall take all measures necessary to disclaim any and all representations or warranties that may pertain to Western New York Healthcare Education, LLC and Western New York Healthcare Equipment, LLC, the Service, or the Training Videos, or use thereof. You agree to indemnify, hold harmless and defend Western New York Healthcare Education, LLC and Western New York Healthcare Equipment, LLC, at Your expense, against any and all third-party claims, actions, proceedings, and suits brought against Western New York Healthcare Education, LLC or any of its officers, directors, employees, agents or affiliates, and all related liabilities, damages, settlements, penalties, fines, costs or expenses (including, without limitation, reasonable attorneys’ fees and other litigation expenses) incurred by Western new York Healthcare Education, or any of its officers, directors, employees, agents or affiliates, arising out of or relating to (a) any representations and warranties made by You concerning any aspect of the Service or Training Videos to Third Parties; (b) any claims made by or on behalf of any Third Party pertaining directly or indirectly to Your use of the Service or Training Videos; (c) violations of Your obligations of privacy to any Third Party; and (d) any claims with respect to acts or omissions of Third Parties in connection with the Service or Training Videos.
DISCLAIMER OF WARRANTIES
1. WESTERN NEW YORK HEALTHCARE EDUCATION, LLC SERVICES AND RELATED DOCUMENTATION ARE PROVIDED “AS IS” AND WITHOUT ANY WARRANTY OF ANY KIND EITHER EXPRESS OR IMPLIED, INCLUDING, BUT NOT LIMITED TO, THE IMPLIED WARRANTIES OF MERCHANTABILITY AND FITNESS FOR A PARTICULAR PURPOSE. NO INFORMATION, WHETHER ORAL OR WRITTEN, OBTAINED BY YOU FROM US THROUGH THIS SITE SHALL CREATE ANY WARRANTY, REPRESENTATION OR GUARANTEE NOT EXPRESSLY STATED IN THESE TERMS. UNDER NO CIRCUMSTANCES WILL WESTERN NEW YORK HEALTHCARE EDUCATION, ITS PARENTS, SUBSIDIARIES, AFFILIATES, OFFICERS, DIRECTORS, SHAREHOLDERS, EMPLOYEES OR OUR SUPPLIERS BE LIABLE FOR ANY LOSS OR DAMAGE CAUSED BY A USER’S RELIANCE ON INFORMATION OBTAINED THROUGH THE SITE, FROM THIRD PARTIES (SUCH AS EXPERTS, OR OTHERS) OR A LINKED SITE, OR USER’S RELIANCE ON ANY PRODUCT OR SERVICE OBTAINED FROM THIS SITE, A THIRD PARTY OR A LINKED SITE. USE OF THIS SITE IS AT USERS’ SOLE RISK. NO ADVICE OR INFORMATION, WHETHER ORAL OR WRITTEN, OBTAINED BY YOU FROM WESTERN NEW YORK HEALTHCARE EDUCATION, LLC OR THROUGH OR FROM WESTERN NEW YORK HEALTHCARE EDUCATION, LLC SERVICES SHALL CREATE ANY WARRANTY. The information and services included in or available through the Service, including the Quiz Reports, Service Communications through Email, Telephone or Social Media, may include inaccuracies or typographical errors. Changes are periodically added to the information herein. Western New York Healthcare Education, LLC and/or its respective suppliers may make improvements and/or changes in the Service or Software at any time, with or without notice. Western New York Healthcare Education, LLC does not represent or warrant that the Service will be uninterrupted or error-free, that defects will be corrected, or that the Service, the Training Videos or any other software on the Server are free of viruses or other harmful components. Western New York Healthcare Education, LLC does not warrant or represent that the use of the Service or the Training Videos will be correct, accurate, timely or otherwise reliable.
1. THE SERVICE, THE TRAINING VIDEOS AND REPORTS ARE PROVIDED “AS IS” AND THERE ARE NO WARRANTIES, CLAIMS OR REPRESENTATIONS MADE BY WESTERN NEW YORK HEALTHCARE EDUCATION LLC AND/OR WESTERN NEW YORK HEALTHCARE EQUIPMENT, LLC, EITHER EXPRESS, IMPLIED, OR STATUTORY, WITH RESPECT TO THE SERVICE, THE TRAINING VIDEOS, THE DOCUMENTATION AND REPORTS, INCLUDING WARRANTIES OF QUALITY, PERFORMANCE, NON-INFRINGEMENT, MERCHANTABILITY, OR FITNESS FOR A PARTICULAR PURPOSE, NOR ARE THERE ANY WARRANTIES CREATED BY COURSE OF DEALING, COURSE OF PERFORMANCE, OR TRADE USAGE. WESTERN NEW YORK HEALTHCARE EDUCATION, LLC DOES NOT WARRANT THAT THE SERVICE, THE TRAINING VIDEOS OR RELATED DOCUMENTATION WILL MEET YOUR NEEDS OR BE FREE FROM ERRORS, OR THAT THE OPERATION OF THE SERVICE WILL BE UNINTERRUPTED. THE FOREGOING EXCLUSIONS AND DISCLAIMERS ARE AN ESSENTIAL PART OF THIS AGREEMENT AND FORMED THE BASIS FOR DETERMINING THE PRICE CHARGED FOR THE SERVICE. SOME STATES DO NOT ALLOW EXCLUSION OF AN IMPLIED WARRANTY, SO THIS DISCLAIMER MAY NOT APPLY TO YOU.
LIMITATION OF LIABILITY.
1. WESTERN NEW YORK HEALTHCARE EDUCATION, LLC AND WESTERN NEW YORK HEALTHCARE EQUIPMENT, LLC WILL NOT BE LIABLE TO USER OR ANY THIRD-PARTY CLAIMANT FOR ANY INDIRECT, SPECIAL, PUNITIVE, CONSEQUENTIAL (INCLUDING, WITHOUT LIMITATION, LOST PROFITS OR INCORRECT INFORMATION), OR INCIDENTAL DAMAGES, WHETHER BASED ON A CLAIM OR ACTION OF CONTRACT, WARRANTY, NEGLIGENCE, STRICT LIABILITY, OR OTHER TORT, BREACH OF ANY STATUTORY DUTY, INDEMNITY OR CONTRIBUTION, OR OTHERWISE, EVEN IF WESTERN NEW YORK HEALTHCARE EDUCATION, LLC AND/OR WESTERN NEW YORK HEALTHCARE EQUIPMENT, LLC AND/OR OTHER AFFILIATES HAS BEEN ADVISED OF THE POSSIBILITY OF SUCH DAMAGES. THE EXCLUSION CONTAINED IN THIS PARAGRAPH SHALL APPLY REGARDLESS OF THE FAILURE OF THE EXCLUSIVE REMEDY PROVIDED IN THE FOLLOWING PARAGRAPH. SOME STATES DO NOT ALLOW THE LIMITATION OR EXCLUSION OF LIABILITY FOR INCIDENTAL OR CONSEQUENTIAL DAMAGES, SO THE LIMITATIONS OR EXCLUSIONS IN THIS AND THE FOREGOING PARAGRAPH MAY NOT APPLY TO YOU.
1. Western new York Healthcare Education’s (and Western New York Healthcare Equipment, LLC’s) total cumulative liability to You or any other party for any loss or damages resulting from any claims, demands, or actions arising out of or relating to this Agreement shall not exceed U.S. $500.
SERVICE LEVELS AND FORCE MAJEURE
1. Western New York Healthcare Education, LLC does not guarantee the Service will be operable at all times or during any down time (1) caused by outages to any public Internet backbones, networks or servers, (2) caused by any failures of Your equipment, systems or local access services, (3) for previously scheduled maintenance or (4) relating to events beyond Western new York Healthcare Education’s (or Western New York Healthcare Equipment, LLC’) control such as strikes, riots, insurrection, fires, floods, explosions, war, global viral pandemics, governmental action, labor conditions, earthquakes, natural disasters, or interruptions in Internet services to an area where Western New York Healthcare Education, LLC (or Western New York Healthcare Equipment, LLC) provides training services, or online servers, or Your servers are located or co-located. Complete accuracy in all aspects of Your Training Record at all times also is not guaranteed. Please note that, in most cases, a global pandemic such as COVID-19 is considered as falling under force majeure provisions.
SPECIAL PROVISIONS DURING COVID-19 GLOBAL PANDEMIC
1. The novel coronavirus, COVID-19, has been declared a worldwide pandemic by the World Health Organization, the United States government, the government of New York State, and the government of Erie County, New York. COVID-19 is extremely contagious and is believed to spread mainly from person-to-person contact. As a result, federal, state, and local governments and federal and state health agencies recommend social distancing and have, in many locations, prohibited the congregation of groups of people. However, Western New York Healthcare Education, LLC provides essential front-line workers, such as healthcare workers, with an important service that allows for continuation to practice care, and is therefore an essential service supporting the healthcare and safety industry. Western New York Healthcare Education LLC is therefore subject to essential worker status and has deemed it necessary to provide such in-person courses to attendees in need of accreditation for their employment purposes. Western New York Healthcare Education, LLC will be putting in place numerous preventative measures throughout the pandemic to reduce the spread of COVID-19, as outlined in detail on its website www.wnyhe.com and including deep disinfection, mandatory wearing of facial mask covering, and other practices and social distancing measures fully in compliance with US Center for Disease Control guidelines, as well as federal, state, and local government social distancing guidelines. By entering a Western New York Healthcare Education, LLC training facility or by participating in any in-person or offline course, Western New York Healthcare Education, LLC, however, cannot fully guarantee that you or your family members will not directly or indirectly become infected with COVID-19. Further, attending an in-person course at a Western New York Healthcare Education, LLC facility could increase your risk of contracting COVID-19. By agreeing to these terms and conditions, You hereby acknowledge the contagious nature of COVID-19 and voluntarily assume the risk that You exposed to or infected by COVID-19, and that such exposure or infection may result in personal injury, illness, permanent disability, and death. You further understand that the risk of becoming exposed to or infected by COVID-19 at any Western New York Healthcare Education, LLC course, or within any of its facilities, may result from the actions, omissions, or negligence of Yourself and others, including, but not limited to, Western New York Healthcare Education, LLC employees, volunteers, and program participants and their families. In agreeing to these Terms and Conditions, You voluntarily agree to assume all of the foregoing risks and accept sole responsibility for any injury to Yourself, and through indirect transmission to your family members, (including, but not limited to, personal injury, disability, and death), illness, damage, loss, claim, liability, or expense, of any kind, that You or your family members may experience or incur in connection with Your attendance at the course, or participation in any Western New York Healthcare Education course. You hereby release, covenant not to sue, discharge, and hold harmless Western New York Healthcare Education, LLC, its employees, agents, and representatives, from all such claims, including all liabilities, claims, actions, damages, costs or expenses of any kind arising out of or relating thereto. You further understand and agree that this agreement includes any claims based on the actions, omissions, or negligence of Western New York Healthcare Education, LLC, its employees, agents, and representatives, whether a COVID-19 infection occurs before, during, or after participation in any Western New York Healthcare Education, LLC course held at any venue.
PROPRIETARY RIGHTS NOTICE
1. The Service, which includes but is not limited to the Western New York Healthcare Education, LLC Training Videos and all intellectual property rights in the Service are, and shall remain, the property of Western New York Healthcare Education, LLC (and its registered company Western New York Healthcare Equipment, LLC). All rights in and to the Processing Software not expressly granted to You in this Agreement are hereby expressly reserved and retained by Western New York Healthcare Education, LLC and its licensors without restriction, including, without limitation, Western new York Healthcare Education’s (and Western New York Healthcare Equipment, LLC’s) right to sole ownership of the Western New York Healthcare Education, LLC Software and Documentation. Without limiting the generality of the foregoing, You agree not to (and to not allow any third party to): (a) sublicense, distribute, or use the Service outside of the scope of the License granted herein; (b) copy, modify, adapt, translate, prepare derivative works from, reverse engineer, disassemble, or decompile the Processing Software or otherwise attempt to discover any source code or trade secrets related to the Service; (c) use the trademarks, trade names, service marks, logos, domain names and other distinctive brand features or any copyright or other proprietary rights associated with the Service for any purpose without the express written consent of Western new York Healthcare Education; (d) register, attempt to register, or assist anyone else to register any trademark, trade name, serve marks, logos, domain names and other distinctive brand features, copyright or other proprietary rights associated with Western New York Healthcare Education, LLC (or Western New York Healthcare Equipment, LLC) other than in the name of Western New York Healthcare Education, LLC (or Western New York Healthcare Equipment, LLC, as the case may be); or (e) remove, obscure, or alter any notice of copyright, trademark, or other proprietary right appearing in or on any item included with the Service.
Copyright and Trademark Notices
1. All contents of Western New York Healthcare Education and Western New York Healthcare Equipment, LLC and its websites www.wnyhe.com and www.wnyaed.com are copyright © 2020 Western New York Healthcare Education, LLC and Western New York Healthcare Equipment, LLC and/or its suppliers, with copyright to be renewed in successive years unless otherwise stated. All rights reserved.
Trademarks
1. The names of actual companies and products mentioned herein may be the trademarks of their respective owners. Any rights not expressly granted herein are reserved.
Notices and Procedure For Making Claims of Copyright Infringement
1. Pursuant to Title 17, United States Code, Section 512(c)(2), notifications of claimed copyright infringement under United States copyright law should be sent to Service Provider’s Designated Agent. ALL INQUIRIES NOT RELEVANT TO THE FOLLOWING PROCEDURE WILL RECEIVE NO RESPONSE. See Notice and Procedure for Making Claims of Copyright Infringement.
TERM AND TERMINATION
1. Either party to the Agreement may terminate it at any time and for any reason.
1. Upon any termination or expiration of this Agreement, Western New York Healthcare Education, LLC will cease providing the Training Videos, and certify thereto in writing to Western New York Healthcare Education, LLC within seven (7) business days of such termination. In the event of any termination (a) You will not be entitled to any refunds of any usage fees or any other fees, and (b) any (i) outstanding balance for Service rendered through the date of termination, and (ii) other unpaid payment obligations during the remainder of the Initial Term will be immediately due and payable in full and (c) all of Your historical report data will no longer be available to You.
LAW AND JURISDICTION
1. This Agreement is subject to United States law and the parties submit to the exclusive jurisdiction of the State of New York court system in connection with any dispute hereunder.
MODIFICATIONS TO TERMS OF SERVICE AND OTHER POLICIES
1. Western New York Healthcare Education, LLC reserves the right to change or modify any of the terms and conditions contained in this Agreement or any policy governing the Service, at any time, by posting the new agreement to the site located at www.wnyhe.com (or such other URL as Western New York Healthcare Education, LLC or Western New York Healthcare Equipment, LLC may provide). You are responsible for regularly reviewing the policy. No amendment to or modification of this Agreement will be binding unless (i) in writing and signed by a duly authorized representative of Western new York Healthcare Education, (ii) You accept updated terms online, or (iii) You continue to use the Service after Western New York Healthcare Education, LLC has posted updates to the Agreement or to any policy governing the Service.
SMS/MMS MOBILE MESSAGE MARKETING PROGRAM TERMS AND CONDITIONS
1. Text Marketing. By agreeing to these terms and conditions, you agree to receive recurring automated promotional and personalized marketing text messages (e.g. cart reminders) from Western New York Healthcare Education, LLC at the cell number used when signing up. Msg & data rates may apply. View Terms & Privacy.
  Western New York Healthcare Education, LLC (hereinafter, “We,” “Us,” “Our”) is offering a mobile messaging program (the “Program”), which you agree to use and participate in subject to these Mobile Messaging Terms and Conditions and Privacy Policy (the “Agreement”). By opting in to or participating in any of our Programs, you accept and agree to these terms and conditions, including, without limitation, your agreement to resolve any disputes with us through binding, individual-only arbitration, as detailed in the “Dispute Resolution” section below. This Agreement is limited to the Program and is not intended to modify other Terms and Conditions or Privacy Policy that may govern the relationship between you and Us in other contexts.
2. User Opt In: The Program allows Users to receive SMS/MMS mobile messages by agreeing to these terms and conditions. Regardless of the opt-in method you utilized to join the Program, you agree that this Agreement applies to your participation in the Program. By participating in the Program, you agree to receive autodialed or prerecorded marketing mobile messages at the phone number associated with your opt-in, and you understand that consent is not required to make any purchase from Us. While you consent to receive messages sent using an autodialer, the foregoing shall not be interpreted to suggest or imply that any or all of Our mobile messages are sent using an automatic telephone dialing system (“ATDS” or “autodialer”). Message and data rates may apply.
3. User Opt Out: If you do not wish to continue participating in the Program or no longer agree to this Agreement, you agree to reply STOP, END, CANCEL, UNSUBSCRIBE, or QUIT to any mobile message from Us in order to opt out of the Program. You may receive an additional mobile message confirming your decision to opt out. You understand and agree that the foregoing options are the only reasonable methods of opting out. You also understand and agree that any other method of opting out, including, but not limited to, texting words other than those set forth above or verbally requesting one of our employees to remove you from our list, is not a reasonable means of opting out.
4. Duty to Notify and Indemnify: If at any time you intend to stop using the mobile telephone number that has been used to subscribe to the Program, including canceling your service plan or selling or transferring the phone number to another party, you agree that you will complete the User Opt Out process set forth above prior to ending your use of the mobile telephone number. You understand and agree that your agreement to do so is a material part of these terms and conditions. You further agree that, if you discontinue the use of your mobile telephone number without notifying Us of such change, you agree that you will be responsible for all costs (including attorneys’ fees) and liabilities incurred by Us, or any party that assists in the delivery of the mobile messages, as a result of claims brought by individual(s) who are later assigned that mobile telephone number. This duty and agreement shall survive any cancellation or termination of your agreement to participate in any of our Programs.
5. YOU AGREE THAT YOU SHALL INDEMNIFY, DEFEND, AND HOLD US HARMLESS FROM ANY CLAIM OR LIABILITY RESULTING FROM YOUR FAILURE TO NOTIFY US OF A CHANGE IN THE INFORMATION YOU HAVE PROVIDED, INCLUDING ANY CLAIM OR LIABILITY UNDER THE TELEPHONE CONSUMER PROTECTION ACT, 47 U.S.C. § 227, et seq., OR SIMILAR STATE AND FEDERAL LAWS, AND ANY REGULATIONS PROMULGATED THEREUNDER RESULTING FROM US ATTEMPTING TO CONTACT YOU AT THE MOBILE TELEPHONE NUMBER YOU PROVIDED.
6. Program Description: Without limiting the scope of the Program, users that opt into the Program can expect to receive messages concerning their class registrations, certifications and sale of AED’s.
7. Cost and Frequency: Message and data rates may apply. The Program involves recurring mobile messages, and additional mobile messages may be sent periodically based on your interaction with Us.
8. Support Instructions: For support regarding the Program, email us at support@wnyhe.com. Please note that the use of this email address is not an acceptable method of opting out of the program. Opt outs must be submitted in accordance with the procedures set forth above.
9. MMS Disclosure: The Program will send SMS TMs (terminating messages) if your mobile device does not support MMS messaging.
10. Our Disclaimer of Warranty: The Program is offered on an “as-is” basis and may not be available in all areas at all times and may not continue to work in the event of product, software, coverage or other changes made by your wireless carrier. We will not be liable for any delays or failures in the receipt of any mobile messages connected with this Program. Delivery of mobile messages is subject to effective transmission from your wireless service provider/network operator and is outside of Our control.
11. Participant Requirements: You must have a wireless device of your own, capable of two-way messaging, be using a participating wireless carrier, and be a wireless service subscriber with text messaging service. Not all cellular phone providers carry the necessary service to participate. Check your phone capabilities for specific text messaging instructions.
12. Age Restriction: You may not use of engage with the Platform if you are under thirteen (13) years of age. If you use or engage with the Platform and are between the ages of thirteen (13) and eighteen (18) years of age, you must have your parent’s or legal guardian’s permission to do so. By using or engaging with the Platform, you acknowledge and agree that you are not under the age of thirteen (13) years, are between the ages of thirteen (13) and eighteen (18) and have your parent’s or legal guardian’s permission to use or engage with the Platform, or are of adult age in your jurisdiction. By using or engaging with the Platform, you also acknowledge and agree that you are permitted by your jurisdiction’s Applicable Law to use and/or engage with the Platform.
13. Prohibited Content: You acknowledge and agree to not send any prohibited content over the Platform. Prohibited content includes: Any fraudulent, libelous, defamatory, scandalous, threatening, harassing, or stalking activity; Objectionable content, including profanity, obscenity, lasciviousness, violence, bigotry, hatred, and discrimination on the basis of race, sex, religion, nationality, disability, sexual orientation, or age; Pirated computer programs, viruses, worms, Trojan horses, or other harmful code; any product, service, or promotion that is unlawful where such product, service, or promotion thereof is received; Any content that implicates and/or references personal health information that is protected by the Health Insurance Portability and Accountability Act (“HIPAA”) or the Health Information Technology for Economic and Clinical Health Act (“HITEC” Act); and any other content that is prohibited by Applicable Law in the jurisdiction from which the message is sent.
14. Dispute Resolution: In the event that there is a dispute, claim, or controversy between you and Us, or between you and RingCentral, INC or any other third-party service provider acting on Our behalf to transmit the mobile messages within the scope of the Program, arising out of or relating to federal or state statutory claims, common law claims, this Agreement, or the breach, termination, enforcement, interpretation or validity thereof, including the determination of the scope or applicability of this agreement to arbitrate, such dispute, claim, or controversy will be, to the fullest extent permitted by law, determined by arbitration in Buffalo, New York before one arbitrator.
15. The parties agree to submit the dispute to binding arbitration in accordance with the Commercial Arbitration Rules of the American Arbitration Association (“AAA”) then in effect. Except as otherwise provided herein, the arbitrator shall apply the substantive laws of the Federal Judicial Circuit in which Western New York Healthcare Education, LLC’s principle place of business is located, without regard to its conflict of laws rules. Within ten (10) calendar days after the arbitration demand is served upon a party, the parties must jointly select an arbitrator with at least five years’ experience in that capacity and who has knowledge of and experience with the subject matter of the dispute. If the parties do not agree on an arbitrator within ten (10) calendar days, a party may petition the AAA to appoint an arbitrator, who must satisfy the same experience requirement. In the event of a dispute, the arbitrator shall decide the enforceability and interpretation of this arbitration agreement in accordance with the Federal Arbitration Act (“FAA”). The parties also agree that the AAA’s rules governing Emergency Measures of Protection shall apply in lieu of seeking emergency injunctive relief from a court. The decision of the arbitrator shall be final and binding, and no party shall have rights of appeal except for those provided in section 10 of the FAA. Each party shall bear its share of the fees paid for the arbitrator and the administration of the arbitration; however, the arbitrator shall have the power to order one party to pay all or any portion of such fees as part of a well-reasoned decision. The parties agree that the arbitrator shall have the authority to award attorneys’ fees only to the extent expressly authorized by statute or contract. The arbitrator shall have no authority to award punitive damages and each party hereby waives any right to seek or recover punitive damages with respect to any dispute resolved by arbitration. The parties agree to arbitrate solely on an individual basis, and this agreement does not permit class arbitration or any claims brought as a plaintiff or class member in any class or representative arbitration proceeding. Except as may be required by law, neither a party nor the arbitrator may disclose the existence, content, or results of any arbitration without the prior written consent of both parties, unless to protect or pursue a legal right. If any term or provision of this Section is invalid, illegal, or unenforceable in any jurisdiction, such invalidity, illegality, or unenforceability shall not affect any other term or provision of this Section or invalidate or render unenforceable such term or provision in any other jurisdiction. If for any reason a dispute proceeds in court rather than in arbitration, the parties hereby waive any right to a jury trial. This arbitration provision shall survive any cancellation or termination of your agreement to participate in any of our Programs.
16. Miscellaneous: You warrant and represent to Us that you have all necessary rights, power, and authority to agree to these Terms and perform your obligations hereunder, and nothing contained in this Agreement or in the performance of such obligations will place you in breach of any other contract or obligation. The failure of either party to exercise in any respect any right provided for herein will not be deemed a waiver of any further rights hereunder. If any provision of this Agreement is found to be unenforceable or invalid, that provision will be limited or eliminated to the minimum extent necessary so that this Agreement will otherwise remain in full force and effect and enforceable. Any new features, changes, updates or improvements of the Program shall be subject to this Agreement unless explicitly stated otherwise in writing. We reserve the right to change this Agreement from time to time. Any updates to this Agreement shall be communicated to you. You acknowledge your responsibility to review this Agreement from time to time and to be aware of any such changes. By continuing to participate in the Program after any such changes, you accept this Agreement, as modified.