This Agreement is entered into by and between Due Delfini, LLC, d/b/a “Beletura”, a Florida limited liability company located at _______________ (hereinafter “Beletura”), on the one hand, and you, the user(s) of Beletura’s website, <<beletura.com>> (the “Website”), (hereinafter the “User” or “Users”), on the other. The latest version of this Agreement will be posted on the Website, and all Users should review this Agreement prior to each use of the Website and prior to using the Beletura’s services, as this Agreement contractually governs the relationship between Beletura, on the one hand, and the Users on the other.
Please be advised that this Agreement is subject to change at any time, in Beletura’s sole discretion. The User’s continued use of the Website constitutes the User’s acceptance of the terms of this Agreement as it may change from time to time.
LICENSE: By using the Website, User grants Beletura a non-exclusive, non-transferable, revocable and limited license to use the information and/or images submitted to Beletura through the Website. Beletura retains sole and exclusive ownership of all content and other information developed by Beletura and/or otherwise supplied to User from time to time in connection with this Agreement or the provision of Beletura’s services.
TERM AND TERMINATION: The term of this Agreement will begin upon User’s first use of the Website, and the provisions of this Agreement shall survive the termination of User’s relationship with Beletura, if any.
DISCLAIMERS/LIMITATION OF LIABILITY: Beletura does not provide medical advice or services of any kind. Beletura is not a medical professional or healthcare provider, but rather acts specifically as a scheduling facilitator and marketing company for medical and travel services providers, including but not limited to doctors and hospitals. User acknowledges that Beletura is not authorized or qualified to engage in any activity which constitutes the practice of medicine and nothing required of Beletura under this Agreement or any other agreement with its Users and/or customers shall be construed as the practice of medicine by Beletura. All warranties, express and implied, relating to the quality of travel and/or medical services purchased through Beletura by its Users and/or customers are disclaimed to the fullest extent allowed by law (including, without limitation, the disclaimer of any warranties of merchantability, and/or fitness for a particular purpose). Beletura is not liable for any indirect, special, incidental or consequential damages (including damages for loss of business, loss of profits, litigation, medical expenses, replacement expenses and/or pain and suffering), whether based on breach of contract, breach of warranty, tort (including negligence), product liability or otherwise, even if advised of the possibility of such damages. Beletura’s maximum aggregate liability to User and/or its customers under any and all circumstances shall be limited to the gross profits actually received by Beletura on account of its services, which shall not include out of pocket expenses paid to medical providers, hospitals, travel service vendors, or the like. The negation of damages set forth hereinabove is a fundamental element of the basis of the bargain between Beletura and its Users and/or customers.
User agrees to indemnify, defend and hold harmless Beletura, its parents, affiliates and/or subsidiaries, and each of their respective officers, directors, partners, members, managers, employees, agents and attorneys, from and against any and all liabilities, claims, actions, suits, proceedings, judgments, fines, damages, costs, losses and expenses (including reasonable attorneys’ fees, court costs and/or settlement costs) arising from or related to third party claims for payments owed or allegedly owed by Beletura’s Users and/or customers. This includes payments for travel and medical services received or agreed to by Beletura’s Users and/or customers.
FORCE MAJEURE: User agrees that Beletura will not be liable or considered in breach of this Agreement on account of Beletura’s delay or failure to perform as required under the terms of this Agreement or any related customer agreement as a result of any causes or conditions that are beyond Beletura’s reasonable control and that Beletura is unable to overcome through the exercise of commercially reasonable diligence (a “Force Majeure Event”). If any such Force Majeure Event occurs including, without limitation, acts of God, fires, explosions, telecommunications, Internet or network failure, results of vandalism or computer hacking, storm or other natural occurrences, national emergencies, acts of terrorism, insurrections, riots, wars, strikes or other labor difficulties, or any act or omission of any other person or entity, Beletura will give its Users and customers notice and will use commercially reasonable efforts to minimize the impact of any such event.
DISPUTE RESOLUTION PROVISIONS: This Agreement shall be treated as though it were executed and performed in Miami, Florida and shall be governed by and construed in accordance with the laws of the State of Florida (without regard to conflict of law principles). User agrees and submits to the exclusive jurisdiction of the state and federal courts of Miami, Florida for any dispute arising from or relating to this Agreement and/or any related customer agreement. Any dispute arising out of or relating to this Agreement, or any related customer agreement shall be resolved in a binding expedited arbitration before the American Arbitration Association (“AAA”).
All controversies, claims, disputes or counterclaims arising out of, relating to or in connection with this Agreement, or any related customer agreement, whether involving a disagreement about meaning, interpretation, shall be under the exclusive authority of the AAA to resolve any dispute relating to the interpretation, applicability, enforceability or formation of this Agreement, or any related customer agreement, including, but not limited to, any claim that all or any part of this Agreement or any related customer agreement is void or voidable.
The arbitration proceedings and any arbitration decision resulting thereof shall be confidential. The arbitrator shall have the authority to entertain a motion to dismiss and/or a motion for summary judgment by any party and shall apply the standards governing such motions under the Federal Arbitration Act. Any Claim to be arbitrated under this paragraph shall be governed by the substantive law (and the law of remedies, if applicable) of Florida, or federal law, or both, as applicable to the claim(s) asserted. The arbitrator is without jurisdiction to apply any different substantive law or law of remedies.
This binding arbitration provision shall not, however, prevent either party from seeking equitable or injunctive relief in a court of competent jurisdiction.
In any arbitration brought under this provision, the assigned arbitrator shall have the authority to consolidate and/or coordinate the proceeding with any other related arbitration or legal dispute, such as a suit involving medical and/or travel service providers whose services are related to the dispute between the User and Beletura.
To the extent permitted by law, User agrees that it will not bring, join or participate in any class action lawsuit as to any claim, dispute or controversy that User may have against Beletura and/or any of its employees, officers, directors, members, representatives and/or assigns. User agrees to the entry of injunctive relief to stop such a lawsuit or to remove User as a participant in the suit. This prohibition on User from bringing, joining or participating in class action lawsuits: (i) does not constitute a waiver of any of User’s rights or remedies to pursue a claim individually and not as a class action in binding arbitration as provided above; and (ii) is an independent agreement.
MISCELLANEOUS: If any section or provision of this Agreement or any related customer agreement, or the application of such section or provision, is held invalid by any court of competent jurisdiction, applicable statute or rule of law, then such section or provision shall be deemed automatically adjusted to the minimum extent necessary to conform to the requirements for validity as declared at such time and, as so adjusted, shall be deemed a section or provision of this Agreement and/or any related customer agreement as though originally included herein.
In the event that the section or provision invalidated is of such a nature that it cannot be so adjusted, the section or provision shall be deemed deleted from this agreement and/or any related customer agreement as though such section or provision had never been included. In either case, the remaining sections and provisions of this Agreement and/or any related customer agreement shall be interpreted so as to best reasonably effect the original intent of Beletura and User.
User acknowledges that the medical providers, travel services providers and other vendors who pay provide User services under this Agreement and/or any related customer agreement are independent contractors of Beletura. Nothing in this Agreement or any related customer agreement will create any partnership, joint venture, agency, franchise, sales representative or employment relationship between the Beletura and any of those vendors.
ELECTRONIC SIGNATURES: User acknowledges and agrees that by checking the box labeled “I Agree” to the Terms & Conditions or such similar links as may be designated by Beletura to accept this Agreement, User is submitting a legally binding electronic signature and is entering into a legally binding contract. User acknowledges that User’s electronic submissions constitute User’s agreement and intent to be bound by this Agreement. Pursuant to any applicable statutes, regulations, rules, ordinances or other laws, including without limitation the United States Electronic Signatures in Global and National Commerce Act, P.L. 106-229 (the “E-Sign Act”) or other similar statutes, User hereby agrees to the use of electronic signatures, contracts, orders and other records and to electronic delivery of notices, policies and records of transactions initiated or completed through the Website, software or services offered by Beletura. Further, User hereby waives any rights or requirements under any statutes, regulations, rules, ordinances or other laws in any jurisdiction which require an original signature or delivery or retention of non-electronic records by other than electronic means.