Terms of Service - Switzerland (upc cablecom)

Terms of Service - Switzerland (upc cablecom)

Not a Phone Replacement: by entering into this Agreement You acknowledge and agree that the Service provided hereunder is not a telephony replacement service. Please also see Article 2.3 below.

No Emergency Calls: please remember that the Service does not support any emergency calls to any type of hospitals, law enforcement agencies, medical care unit or any type of emergency services of any kind. There are important differences between traditional telephone services and the Service. You need to make additional arrangements in order to access emergency services. It is Your responsibility to purchase, separately from the Service, traditional wireless or fixed line telephone services that offer access to emergency services. If, with Your permission, another user uses Your Account, it is Your responsibility to inform that user that it is not possible to support or carry emergency calls using the Service.

Electronic Signatures and agreement(s): You acknowledge and agree that by clicking on the ACCEPT button, or similar buttons or links as may be designated by upc cablecom, to show Your approval of any foregoing text You are entering into a legally binding contract with upc cablecom. You hereby agree to the use of electronic communication in order to enter into contracts, place orders and to the electronic delivery of notices, policies and records of transactions. Furthermore, You hereby waive any rights or requirements under any laws or regulations in any jurisdiction, to the extent permitted under applicable mandatory law, which require an original (non-electronic) signature or delivery or retention of non-electronic records.

Restrictions: If the law of Your country prohibits You from using the Service because You’re under the age limit or just because the Service is not allowed in Your country, or if You are not authorised to enter into this Agreement on behalf of Your company (for business customers only) please don’t enter into this Agreement.

General Conditions

Article 1 - DEFINITIONS

In this Agreement the following capitalized definitions are used in both the singular and plural form.

1. Administrator: means an authorised representative of a business who has registered for a Skype Manager account (a Skype account for use by a business) with Skype on behalf of a business, and who is responsible for the administration of that account, including without limitation the purchase and assignment of Numbers. Separate Skype Terms of Use apply;

2. Account: refers to Your account for the use of Skype Software and for the payment and use of the Service;

3. Affiliate: any corporation, upc cablecom or other entity that directly or indirectly controls, is controlled by, or is under common control with, upc cablecom. For the purpose of this definition, the word "control" shall mean the direct or indirect ownership of more than fifty percent (50%) of the outstanding voting stock of the corporation, upc cablecom, or other entity.

4. Agreement: means these Terms of Service between upc cablecom and You for the use of the Service;

5. upc cablecom: refers to the entity upc cablecom GmbH, Zollstrasse 41, CH-8021 Zürich;

6. Number: means the number as defined by the Swiss numbering plan, allocated to You by upc cablecom, for the use of Service or other number based products or services;

7. Password: refers to a code You select, which, in combination with the User ID, gives You access to Your Account;

8. PSTN User: refers to a user of the Public Switched Telephone Network (“PSTN”);

9. Service: means the service consisting of the provision of the Number and the provision of incoming calls into the Number, excluding always the reception of any incoming calls with extra charges;

10. Skype: refers to the entity Skype Communications Sarl, with its address at 23-29 Rives De Clausen, L-2165 Luxembourg, Luxembourg, reg.no, (B100468), VAT no. (LU20981643);

11. Skype Credit: means the payment method that can be used to purchase SkypeOut, and in some cases other products such as Skype Voicemail and the Service, or other services or products as defined by Skype;

12. SkypeOut: means the service provided by Skype, on separate terms of service, which enables You to make calls to PSTN Users;

13. Skype Software: means the software distributed by Skype Software Sarl for internet communications, enabling You to use the Service, including without limitation any subsequent programming fixes, updates, upgrades and new versions of such software;

14. Skype Terms of Use: means the terms of use between (i) Skype Software Sarl and You for the licence to use the Skype Software and (ii) Skype and You, to the extent applicable, for the provision and use of SkypeOut, Voicemail and other such products as designated by Skype from time to time, set out at http://www.skype.com/intl/en/legal/tou/;.

15. User ID: refers to an identification code You selected, which in combination with the Password, gives access to Your Account;

16. Voicemail: means the Skype Software feature which allows You to receive voice messages from PSTN Users and other Skype Software users;

17. Website: means any and all elements and contents of the website available – amongst other URLs – under the URL www.skype.com, from which website the Skype Software can be downloaded;

18. You: You, the end user of the Service and licensee of Skype Software, also used in the form “Your” where applicable.

Article 2 - GENERAL PROVISIONS

2.1 No warranties. upc cablecom shall endeavour to provide the Service with minimum disruptions. However upc cablecom cannot guarantee that Service will always function without disruptions, delay or other imperfections. Since the Service will be transmitted through public Internet lines and the PSTN, You understand that there may be power outages or Internet service disruption and You may experience some disruptions in the Service, e.g. packet loss and delay. Additionally, You also understand that calls to or from the PSTN are not encrypted and as such, could be potentially subject to interception by law enforcement officials or other such monitoring by other legally authorized third parties. upc cablecom will not be liable for any disruption, delays, monitoring, eavesdropping or other omissions in the Service.

2.2 Suspension and interruption. upc cablecom is entitled, without any liability to You, to refuse, restrict, limit, suspend and/or interfere or interrupt the Number and/or Service or any part thereof, without any notice to You (i) in case of repair, improvement, and/or upgrade of the Service (ii) in connection of termination this Agreement as set out in Article 11.3, (iii) if any data that is required for providing the Service is not timely available to upc cablecom and/or (iv) if You fail to fulfill Your obligations under this Agreement in any other way.

2.3 No control. You acknowledge and understand that upc cablecom does not control, or have any knowledge of, the content of any communication(s) received by the use of Service. The content of the communication is entirely the responsibility of the person from whom such content originated. You, therefore, may be exposed to content that is offensive, harmful to minors, indecent or otherwise objectionable. upc cablecom will not be liable for any type of communication received by means of Service.

2.4 License. No transfer of (property) rights. You shall only obtain a non-exclusive and non-transferable right for the use of the Number. You acknowledge and understand that the provision of the Service and allocation of Number hereunder does not in any way imply or constitute any transfer of intellectual property rights with regard to the Number or Service.

Article 3 - NUMBER; VOICEMAIL

3.1 Allocation of the Number. If You are eligible for a Number, upc cablecom will allocate it to You as soon as reasonably possible after the receipt of Your request and receipt by Skype of Your payment. If a Number is allocated to You by an Administrator, the right to use that Number and the cancellation of such right will be exercised by the Administrator at his sole discretion - additional Skype terms of service will apply in such circumstances.

3.2 No guarantee. upc cablecom shall endeavor to allocate the Number and enable You to be reached by PSTN Users in Your Number. However, upc cablecom cannot guarantee that the Number can be allocated to You or that You can make use of Service.

3.3 Refuse, change or terminate Numbers. upc cablecom is entitled, without any liability to You, to refuse, change or terminate any Number at any time. In particular, without limiting the generality of the foregoing, upc cablecom reserves the right to immediately withdraw the Number should You not comply with the terms of this Agreement, the instructions given by upc cablecom and/or Skype or the requirements of the relevant national number plan.

3.4 Change of the Number. In the event that upc cablecom changes the Number that has been allocated to You, You will be notified by e-mail, stating the effective date of the change and Your new Number. If You do not wish to accept such new number, You are entitled to terminate Your Number, in writing or by e-mail to billing@skype.net, with effect from the date on which the new Number is allocated. upc cablecom will not be liable for any damages resulting from the change of Number.

3.5 Voicemail. In case Voicemail is offered in connection with Service hereunder, You acknowledge and agree that such product is provided by Skype and that You must accept and agree to Skype Terms of Use (http://www.skype.com/intl/en/legal/tou/) for Your right to use Voicemail.

Article 4 - YOUR COOPERATION

4.1 Use of the Service. You agree to use the Service in accordance with this Agreement and the relevant legislation. Further, You guarantee that You will comply with any reasonable instructions given by upc cablecom or Skype with regard to the use of the Numbers and that You will comply with the requirements of the relevant national numbering plan.

4.2 Information. You will at all times provide upc cablecom in good time with any data or information necessary to a proper provision of the Service. In particular, You agree to provide accurate and complete information with regard to Your place of residence and Your use of the Number, and all such other information with regard to fulfilment of the requirements of the number plan, as may reasonably be required from time to time by upc cablecom.

4.3 No resell. You agree not to resell the Service to any third party.

4.4 Lawful purposes. You acknowledge and agree to use the Number and Service solely for lawful purposes. In this respect You may not, without limitation, use Your Account, Number or Service in any fraudulent way or get involved in any unwanted profane, offensive, obscene or sexual exchanges or to attempt to harm a young person in any way.

4.5 Indemnification. You agree to indemnify and hold upc cablecom harmless against any and all third-party claims, actions, proceedings and costs, including but not limited to reasonable attorney’s fees, incurred by upc cablecom arising out of or relating to any inaccurate or incomplete information provided by You hereunder, Your violation of the instructions given by upc cablecom or Skype, including instruction related to the requirements of the relevant national numbering plan, Your violation of the Agreement, applicable law or rights of any third parties and/or the misuse of the Number or Service.

Article 5 - USER ID, PASSWORD AND ACCOUNT

5.1 User ID, Password and Account. In order to make use of the Service, You need to download the Skype Software and register for an Account with Your chosen User ID and Password. You are solely responsible for maintaining the confidentiality of Your User ID and Password, and responsible and liable for all activities conducted through Your User ID, Password and Account, even if this occurs without Your permission.

5.2 Notification and Indemnification. You agree to immediately notify upc cablecom or Skype in writing of any unauthorised or fraudulent use of Your User ID, Password or Account in connection with the use of Service, and agree to indemnify upc cablecom and Skype against any and all third party claims and all related liabilities arising out of, or relating to, such unauthorized or fraudulent use. upc cablecom and Skype will not be liable for any damages resulting from the unauthorised and/or fraudulent use of Your User ID, Password or Account.

5.3 Change of User ID and Password. upc cablecom reserves the right to have Your User ID or Password changed if this is in the interest of the functioning of Service or to prevent fraudulent use of Number or Service.

Article 6 - PAYMENT AND REFUND POLICY

6.1 Charges. To purchase the Service You need to pay the applicable charges. You may pay for the Service with credit card or other payment methods made available. Unless otherwise stated upon purchase, You shall not be able to use Skype Credit for the purchase of the Service hereunder. For the credit card purchase You must give a valid credit card number (Visa, MasterCard or any other the then accepted issuer). For the avoidance of doubt, the list of accepted issuers is subject to change.

6.2 Activating Account. In the event You have a password or voucher number which represents a credit balance for the Service, You can activate such credit balance on Your respective account by typing the password or voucher number on the relevant part of the website.

6.3 Number Auto-renew. When you purchase a Number we will enable its auto-renewal at the end of your chosen subscription period.  This means that the Number allocated to you will be auto-renewed for the same period and using the payment method You chose when You first signed up for the Service.  This will occur approximately three (3) days before Your subscription expires.  You can disable this functionality at any time by accessing Your User Account.6.4 Refund request. The mere allocation of a Number constitutes “use” of the Service and therefore subscriptions to Numbers cannot be refunded. However, refunds may be justified in light of the services provided and will be considered on a case by case basis. This section does not affect your statutory rights.  

Article 7 - TARIFFS AND PAYMENT

7.1 Payment. In order to purchase the Service You need to pay the tariffs as stated in connection with Your purchase. Tariffs and charges shall be payable in such currency as stated in connection with Your purchase, including such value added taxes (VAT) or other eventually applicable taxes as defined to You upon purchase.

7.2 Change of tariffs. You hereby acknowledge and agree that the price for Service is unchangeable during Your ongoing prepaid subscription, but subject to change for the consecutive periods of subscription. Eventual new prices shall be communicated to You in connection with Your subsequent purchase of the Service. If You don’t agree to such change in price, You are entitled to terminate this Agreement.

7.3 Charged in error. In the event You believe that You have been charged in error, You must contact support@skype.net within 90 days after such charge. For the avoidance of doubt, You shall lose Your right to ask for a refund or adjustments for any charges that are more than 90 days old.

7.4 Term for the Service. You can only make use of the Service during the prepaid subscription period, and are responsible of extending such period should You wish to continue using the Service thereafter. Each extension is regarded as a new Agreement.

Article 8 - PRIVACY, PERSONAL DATA AND TRAFFIC DATA

8.1 Privacy Policy. Skype’s and upc cablecom’s Privacy Policy, published on respective websites at www.skype.com/go/privacy and www.cablecom.ch, apply to the use of personal data and the traffic data, as well as the confidential information transmitted via the Service. As stated in the Privacy Policy, in order to provide You Number and/or Service, it may sometimes be necessary to share Your personal and traffic data with carriers, distributors, partnering service providers and/or agents. Further, as stated in the Privacy Policy, upc cablecom, Skype and/or their local partners may need to provide such data to designated competent authorities upon request, or may need to enter into further activities due to local regulations, for example with regard to the interception of communications, if requested by such authorities. Your personal information shall not be sold or rented to third parties for their marketing purposes without Your explicit consent and Your information shall be used only as described in the Privacy Policy. Your information is stored and processed on computers that are protected by physical as well as technological security devices and that may be located outside Your country. You can access and modify the information You provide in accordance with the Privacy Policy. If You object to Your information being transferred or used as set out in the Privacy Policy please do not use the Service and Number.

Article 9 - LIMITATION OF LIABILITY

9.1 Limitation of Liability. In the event of upc cablecom being in breach of any of its obligations towards You under this Agreement, upc cablecom will accept liability to pay damages only to the extent as laid down in this article 9.

9.2 Direct damages. upc cablecom can only be held liable for direct damages resulting from an attributable failure to perform its obligations under this Agreement. Direct damages in this respect exclusively mean:
a. all reasonable costs incurred by You in order to have upc cablecom perform its obligations under the Agreement;
b. all reasonable costs incurred by You in order to prevent or limit any direct damages as meant in this article;
c. all reasonable costs incurred by You in order to establish the nature and scope of the direct damages as meant in this article 9.2.

9.3 Maximum amount. The direct damages as meant in this article 9 shall be limited to the amount actually paid by You for Service during the year in which such damages occur. In no event, however, shall the total compensation for any direct damages exceed 5.000 Euro.

9.4 No incidental consequential damages. To the maximum extent permitted by applicable law, upc cablecom shall not be liable for any special, incidental or consequential damages whatsoever (including but not limited to, damages for loss of profits or confidential or other information, for business interruption, for loss of privacy arising out of or in any way related to the use of or inability to use Number or Service), even if upc cablecom has been advised of the possibility of such damages and even if the remedy fails of its essential purpose.

9.5 Willful intent or gross negligence. The above limitation of liability in article 9.3 shall cease to apply if and insofar as the loss is due to upc cablecom’s willful intent or gross negligence.

9.6 Jurisdiction’s Limitations. As some jurisdictions do not allow some of the exclusions or limitations as set forth above, some of these exclusions or limitations may not apply to You. In that event the liability will be limited as far as legally possible under the applicable legislation.

Article 10 - FORCE MAJEURE

10.1 Force majeure. You acknowledge and understand that the Service does not function and upc cablecom will not be in breach of any of its obligations towards You under this Agreement in the event of a force majeure event. A force majeure event means any event beyond the control of upc cablecom including, but not limited to, an act of God, insurrection or civil disorder, war or military operations, national or local emergency, a serious and sustained power outage or severe Internet service disruption, flood, subsidence, or weather conditions of exceptional severity.

10.2 Consequences of force majeure. In the event upc cablecom is affected by a force majeure event, it shall promptly notify You of the estimated extent and duration of its inability to perform or delay in performing its obligations, on a best efforts basis. upc cablecom will not accept any liability for the consequences arising out of a force majeure event.

Article 11 - TERM AND TERMINATION

11.1 Term. The Agreement will be effective as of the date of Your acceptance thereof by clicking on the accept button or similar buttons or links as may be designated by Skype, or the date of Your first use of the Service, whichever occurs earlier, and will remain effective until the end of the term for the Service as defined in article 7.4, unless terminated earlier by either party as set forth hereunder.

11.2 Termination by You. You may terminate the Agreement at any time, under the conditions provided herein.

11.3 Termination by upc cablecom. Without limiting other remedies, and without being liable for the consequences thereof, upc cablecom or its Affiliates may terminate the Service with immediate effect, automatically and without recourse to the courts, and may limit, suspend, or terminate Your use of the Service: if a local regulatory authority or court with lawful mandate requires upc cablecom to terminate the provision of the Service, if upc cablecom is unable to continue the Service due to a change in regulations with regard to the Service, if any agreement between Skype and upc cablecom upon which the continued provision of the Service is reliant is terminated, or if we think that You are in breach of these Terms of Service, creating problems, possible legal liabilities, acting inconsistently with the letter or spirit of upc cablecom’s or Skype’s policies, infringing someone else’s intellectual property rights, engaging in fraudulent, immoral or illegal activities, or for other similar reasons, with immediate effect and without recourse to the courts. upc cablecom shall effect such termination by preventing Your access to Your User Account, the Service and Skype Software. If You provided a valid email address, Skype may provide notice to You by email. Further, in case of termination of the Skype Terms of Use this Agreement shall immediately terminate.

11.4 Consequences of Termination. Upon termination of the Agreement for any reason all licenses and rights to use the Number and Service shall terminate and You will cease any and all use thereof.

11.5 Survival. All provisions which must survive in order to give effect to their meaning shall survive any expiration or termination of the Agreement, including without limitation, all of Your representations, warranties and indemnification obligations.

Article 12 - MISCELLANEOUS

12.1 New versions of the Agreement. upc cablecom reserves the right to modify this Agreement at any time by having such revised Agreement provided to You or by publishing the revised Agreement on the Website where Numbers are being offered hereunder, and such modification shall become effective within thirty (30) days thereof, unless You expressly accept the revised Agreement by clicking on the accept button. Your continued use of the Service after expiry of said period of time, and/or Your explicit click acceptance thereof shall constitute Your acceptance to be bound by the terms and conditions of the revised Agreement. If You do not wish to accept these revised Agreement, You are entitled to terminate Your Account, in writing or by e-mail to billing@skype.net, with effect from the date on which the revised Agreement would become effective.

12.2 Entire Agreement. The terms and conditions of these Terms of Service constitute the entire agreement between You and upc cablecom with respect to the upc cablecom subject matter hereof and will supersede and replace all prior understandings and agreements, in whatever form, regarding the subject matter. Nothing in this clause shall exclude or restrict the liability of either You or upc cablecom arising from fraud or fraudulent misrepresentation. Skype Terms of Use also apply as described herein, and nothing in this Article seeks to exclude their operation as provided for.

123 Adjustment of the Service. upc cablecom reserves the right to adjust the Service at any time, for example to conform to legal and regulatory obligations. If You do not wish to accept the adjusted Service, You are entitled to terminate Your Account, in writing or by e-mail to billing@skype.net, with effect from the date on which the adjusted Service will be provided.

12.4 Partial Invalidity. Should any term or provision hereof be deemed invalid, void or enforceable either in its entirety or in a particular application, the remaining parts of this Agreement and the terms and provisions thereof shall nonetheless remain in full force and effect.

12.5 No waiver. upc cablecom does not guarantee that upc cablecom will take action against all breaches of this Agreement. The failure of upc cablecom at any time or times to require performance of any provisions hereof shall in no manner affect its right at a later time to enforce the same unless the same is explicitly waived in writing and signed by upc cablecom.

12.6 No Assignment by You. You are not allowed to assign this Agreement or any rights hereunder.

12.7 Assignment by upc cablecom. upc cablecom is allowed to, at its sole discretion, assign this contract or any rights hereunder to any Affiliate or to Skype, without giving prior notice.

12.8 Applicable Law. This Agreement shall be governed by and construed in accordance with the laws of Switzerland without giving effect to the conflict of laws provisions of Switzerland or Your actual state or country of residence.

12.9 Competent Court. Any legal proceedings arising out of or relating to Agreement will be subject to the jurisdiction of the courts of Switzerland.

12.10 Language. The original English version of this Agreement may have been translated into other languages. In the event of inconsistency or discrepancy between the English version and any other language version of this Agreement, the English language version shall prevail.

YOU EXPRESSLY ACKNOWLEDGE THAT YOU HAVE READ THIS AGREEMENT AND UNDERSTAND THE RIGHTS, OBLIGATIONS, TERMS AND CONDITIONS SET FORTH HEREIN. BY CLICKING ON THE ACCEPT BUTTON AND/OR CONTINUING TO USE THE SERVICE, YOU EXPRESSLY CONSENT TO BE BOUND BY ITS TERMS AND CONDITIONS AND GRANT TO CABLECOM THE RIGHTS SET FORTH HERIN