Service Provider Agreement

IMPORTANT - PLEASE READ CAREFULLY

Entering into this Agreement: This Service Provider Agreement (the “Agreement”) constitutes a valid and binding agreement between Skype Communications S.a.r.l and You, as a Premium Call Services Provider (“the Service Provider”). You must enter into this Agreement by clicking on the ACCEPT button. You hereby agree and acknowledge that this Agreement covers all the provision of Contents and/or Services through the Skype Software, by You. You must be 18 years old or older to enter into this Agreement.

Preamble

Skype wishes to offer its end users a new chargeable service over Skype Software, allowing Service Providers to provide chargeable products or services to its users through the Skype Software.

1. Skype Software, Service and Support

1.1 Skype Software shall mean the peer-to-peer software offered by Skype, enabling communications over the Internet between end users of Skype Software, through their personal client software application, as well as any future programming fixes, updates and upgrades (the “Skype Software”).

1.2 The Service shall mean any and all content consisting of text, sounds, video, and/or any type of information, communications (the “Content”) provided in the form of service(s) by the Service Provider (the “Service”) to the end users of Skype Software (the “Users”) via the Skype Software, whether such Content is generated by the Service Provider or by a third party content provider.

1.3 To provide the Service, Service Provider must download the Skype Software, accept Skype’s End User License Agreement (the “EULA”) and Terms of Services (the “TOS”) and register for a Skype user ID. Service Provider hereby confirms it is familiar with the terms of EULA and agrees it shall apply to the provision of Skype Software by Skype under this Agreement. For the avoidance of any doubt, the Service Provider’s license to Skype Software shall further include the right to use Skype Software for the purpose of providing Service hereunder.

1.4 Service Provider shall provide the Content or Service for the Users through Skype Software and through Service Provider’s Skype user ID, in accordance with the terms of this Agreement.

1.5 Service Provider represents and warrants the accuracy and completeness of information it has provided to Skype upon subscription and shall notify Skype without delay of any changes in such information. Service Provider acknowledges that all such information may be publicly displayed and communicated to third parties by Skype, including to the Users, and permits such disclosure.

1.6 Service Provider may provide the Content or Service in the following languages only. English, French, Italian, German, Spanish, Japanese.

1.7 In the event of any issues, claims or questions from Users relating to the marketing, promotion, pricing, communication problems, or generally any issue in connection with the provision of the Content and/or Service (the “Service Issues”), Skype will be the first level of customer support. Customer support will only be provided in the languages listed in section 1.6.

1.8 In the event of a refund request, Skype shall decide, at it sole discretion whether to pay a refund to the User. Skype may contact Service Provider at any time by email or by telephone to investigate any matters regarding a Service Issue or to ask for Service Provider’s cooperation to resolve the Service Issue. Service Provider will cooperate and abide by any requirements from Skype to resolve the matter.

1.9 Service Provider solely is responsible for promoting the Service.

2. Fees and Payment Terms

2.1 The price at which the Service is offered will be determined by Service Provider upon registration and can be changed from time to time. The permitted limits for the fee shall be between 0.1 EUR or 0.15 USD and 2 EUR or 2.5 USD (excl. 15% VAT) per minute and between 0.1 EUR or 0.15 USD and 10 EUR or 12 USD (excl. 15% VAT) for call. Service Provider shall be responsible for monitoring that such limits are not exceeded. Fees shall be expressed with and without VAT (15%) in all promotional and marketing communications, and Skype shall charge 15% Luxembourg VAT when applicable.

2.2 Skype shall either (i) enable Service Provider to communicate such fee to User through the Skype Software, prior to the provision of Service or (ii) communicate the fee defined by the Service Provider through the Skype Software or otherwise, in a way that User has necessary knowledge of the fee, prior to the provision of chargeable Service.

2.3 The duration of the chargeable Service shall be from the moment User requests for the Service and approves the applicable fee, until the termination of the call by User or Service Provider. The total fee is calculated in one-minute increments, and fractions of minutes will be rounded up to the next minute after 5 seconds.

2.4 Skype shall collect fees from Users. Service Provider shall be entitled for a service fee for the provision of the Service (the “Service Fee”) as a percentage of Gross Adjusted Revenue. Skype reserves the right to change the Service Fee with a 30 days notice by email. For the purposes of this Agreement, the “Gross Adjusted Revenue” shall mean the aggregate fees paid by Users for the Service less (i) applicable value added, sales or similar tax, (ii) amounts refunded in accordance with Article 1.8 and (iii) any payment from a User that have been charged back for any reasons whatsoever. ..Further, no Service Fee shall be paid (i) for fees charged over and above the permitted limits (per minute and per call) defined in Article 2.1 (ii) if Skype reasonably believes that Service Provider is in breach of this Agreement. The Service Fee shall be calculated solely based on invoicing records maintained by Skype and the statements of Service Fee issued by Skype are final.

2.5 The Service Fee will be paid no later than four (4) months after the end of the calendar month during which the Service is provided to the User, by day 15 of the applicable month. The Service Fee may be paid in the following currency only : EUR, USD.

2.6 The Service Fee will be paid exclusively on Service Provider’s PayPal account. Service Provider shall open and maintain a valid PayPal account and shall provide Skype with the email address registered with its PayPal account. Service Provider understands that PayPal supports receiving and withdrawing money only within certain countries, and under certain conditions as set out in PayPal’s user agreement. Service Provider is responsible for checking that the Service Fee has been received on its PayPal account. If Service Provider has not received payment or insufficient payment, Service Provider should contact Skype at support@skype.net. If for any reason whatsoever the payment of the Service Fee cannot be received on Service Provider’s PayPal account, the same will be held for a 6 month period. At the end of this period, the debt will expire and no payment will be issued for the expired debt. Any costs, loss or fee associated with the Payment of the Service Fee, including any fees charged by PayPal or conversion costs, shall be at Service Provider’s exclusive charge.

2.7 In the event of a Service Issue, or if Skype suspects any abusive (for example, but not limited to, by artificially increasing the Gross Adjusted Revenue), fraudulent or illegal activities, or if Service Provider breaches this Agreement, Skype will have the right to retain the payment of applicable Service Fee until there has been a complete settlement of the matter. In case applicable Service Fee has already been paid and claim results to a refund, Skype is entitled to either deduct such refund from the future invoice for Service Fee or charge it to Service Provider directly.

2.8 If Service Provider is based in Luxembourg it may have to charge VAT on the Service Fee. Invoices should be sent to Skype Communications Sarl, 15,, rue Notre Dame, L-2240 Luxembourg, VAT number LU 20981643.

3. Skype’s Undertakings

3.1 During the term of this Agreement Skype shall provide the Skype Software and enable Service Provider’s provision of the Service from its Skype ID as set out in this Agreement.

3.2 Skype shall use reasonable endeavours to keep the Skype Software available for the provison of the Service. Skype is entitled to suspend the Skype Software or a part thereof in case it is necessary for the repair, improvement, and/or upgrade of the Skype Software. Further, Skype may change the technical features and/or otherwise adjust the Skype Software at any time in order to comply and keep pace with the latest demands, requirements and technological developments, at its own discretion.

4. Service Provider’s Undertakings

4.1 Service Provider shall provide the Service pursuant to the terms and conditions set forth in this Agreement.

4.2 Service Provider represents and warrants it is entitled to provide the Service under the laws and regulations applicable to the Service, Service Provider and/or its operations.

4.3 Service Provider declares that it has never been subject to investigation or criminal complaints in connection with the provision of Service, other types of services similar to the Service, or any types of services provided through public switched telecommunications networks.

4.4 Service Provider undertakes to comply with all laws and regulations applicable to it and to the provision of the Service. In particular, Service Provider undertakes (i) not to make available Service or Content, (ii) or promote your Service or Content on webpages, which may be contrary to public order or good morals or likely to violate any law or to constitute a criminal offence and, in particular a:

4.4.1 Content or Service, which is adult, sexual or pornographic;

4.4.2 Content or Service which is offensive or promotes or legitimates racism, revisionism, or any other form of discrimination;

4.4.3 Content or Service relating to the offering of gaming, betting and lotteries;

4.4.4 Content or Service provoking violence; or

4.4.5 Content or Service provoking or encouraging reprehensible or illegal actions.

4.4.6 Content or Service relating to health and therapy.

4.4.7 Content or Service relating to legal or tax advice.

4.5 It is not allowed to use the Service to send or receive any type of files.

4.6 Service Provider undertakes that the offered Service and Content will not infringe the rights of third parties, including the right to privacy, the right to personal data protection, copyrights, trademarks and patents, software licenses or any other industrial or intellectual property right.

4.7 Service Provider undertakes to respect the security and the confidentiality of the network that allows the provision of the Service. Service Provider will not use the Skype User ID or its access to the Skype Software to misappropriate or otherwise negatively affect Skype Software or other products offered by Skype.

4.8 Service Provider warrants the harmlessness of the Service and Content that it offers, and undertakes to use, inter alia, efficient and up-to-date protection systems against third-party intrusions and computer viruses.

4.9 Service Provider undertakes not to transmit to the Users, via Skype Software, Service or by other means, unsolicited data and, in particular, chain mails or unsolicited advertising messages (spam). Service Provider will not collect personal information from the User unless it is absolutely necessary to provide the service. Service Provider should process the collected personal data in accordance with any applicable law and shall use the collected data only for the purpose of providing the Service requested by the User.

4.10 The promotion, marketing and provision of the Service and Content must comply with applicable laws and regulations including consumer protection, protection of minors (including age limits), e-commerce regulation and data protection. Service Provider shall make all reasonable efforts to promote the Service and Content in such a way that it does not reach such Users to whom the Service or Product could be regarded harmful or offensive or otherwise forbidden.

4.11 Service Provider undertakes that in all customer communication to the public, prices shall be accurate, clearly and visibly indicated, and that the Service shall be clearly defined as payable to the Users, and that such communications shall not contain misleading advertisement or representations.

4.12 Service Provider undertakes to immediately bring to the attention of Skype any claim, action, lawsuit or other proceedings brought against it relating to any part of the Service and/or Content is supplies hereunder.

4.13 Service Provider will not transfer or assign to another natural or legal person the rights or obligations arising from this Agreement and any attempt of such transfer or assignment shall be considered null and void.

5. Disclaimer and Limitation of Liability

5.1 Service Provider is solely responsible for the Service and Content made available to the User.

5.2 It is expressly understood and agreed by the parties, that Skype is not responsible for the Service or Content. Furthermore, Skype shall not be responsible for the content of communications spread by means of Skype Software or any other use of Skype Software by Users or any third party.

5.3 As the Skype Software operates through the public Internet, Service Provider understands that Skype Software is subject to power outages and Internet service disruption and hardware or software failures on the equipment used by the Users and that Service Provider and Users may experience disruptions in the communications over Skype Software, e.g. packet loss and delay, and Skype will not be liable for any non-availability, disruption, delays, failures or other omissions in the Skype Software. The Skype Software is provided “as is”, with no warranties whatsoever, in accordance with the terms and conditions of the EULA.

5.4 Service Provider agrees to indemnify, defend, and hold Skype harmless from any third party claims, losses, liabilities, causes of action and costs incurred by Skype arising out or related to Service and/or Content, including without limitation damages caused to third parties by reason of the violation of any clause of this Agreement or a legal provision by Service Provider, defamation, invasion of privacy, unlawful use of User’s personal data or infringement of industrial or intellectual property rights or any other third party rights.

5.5 Neither Party shall be liable for any breach of this Agreement caused by a force majeure event. A force majeure event means an event beyond the control of that Party such as act of God, insurrection or civil disorder, war or military operations, national or local emergency, flood, subsidence or weather of exceptional severity.

5.6 Skype will not be liable for any loss of business or profits, or for any consequential, incidental, punitive, or special damages, regardless of the form of actions, whether in contract or in tort, including negligence, even if Skype has been advised of the possibility of such damages. In addition, Skype will not be liable for the consequences of any interruptions or errors, or for any lost data or content. Under no circumstances shall Skype’s total liability exceed the amount of 100% of Service Fees generated under this Agreement during the immediately preceding period of twelve (12) months.

6. Term, Termination and Suspension

6.1 The Agreement will be effective as of the date of Service Provider’s acceptance thereof and will remain effective until terminated by either party.

6.2 Service Provider may terminate this Agreement at any time. Any Service Fee due at the time of termination will be paid in accordance to section 2.5. Without limiting other remedies, Skype or its affiliates may limit, suspend, or terminate this Agreement, suspend the provision of Service preventing Service Provider’s access to Skype Software immediately, remove hosted content, and take technical and legal steps to keep Service Provider off Skype’s website in case Skype deems at its sole discretion that Service Provider is in breach of this Agreement or in case of repetitive Service Issues and/or refund requests, and/or payments charge back, related to the Service and/or Content, or if Service Provider is creating problems, possible legal liabilities, acting inconsistently with the letter or spirit of 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. Skype shall effect such termination by preventing Service Provider from accessing its Skype User Account. If Service Provider provided a valid email address, Skype may provide notice by email.

6.3 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 representations, warranties and indemnification obligations.

6.4 Update: Skype reserves the right to modify this Agreement at any time with a thirty (30) days notice by email, unless Service Provider expressly accepts the revised Agreement earlier by clicking on the accept button. Continued provision of Service or Content by Service Provider after expiry of the 30-day period shall constitute Service Provider’s acceptance to be bound by the terms and conditions of the revised version of the Agreement. If Service Provider does not wish to accept this revised Agreement, Service Provider is entitled to terminate this agreement at any time, in writing or by email to billing@skype.net.

7. Intellectual Property

All intellectual property rights regarding the Skype Software, Content and Service, including but not limited to the software and documentation that is used therefore, developed and/or owned by a Party shall be and shall remain the sole property of that Party. Nothing in this Agreement implies any transfer of intellectual property rights or grant of any licenses thereto.

8. Confidentiality

Service Provider acknowledges and agrees that by reason of its relationship to Skype under this Agreement it may have access to material, data, systems and other information concerning the operation, business, products, customers and intellectual property of Skype that may not be accessible or known to the general public (“Confidential Information”). Service Provider agrees that Confidential Information shall remain the sole and exclusive property of Skype and agrees to maintain the Confidential Information in strict confidence and to use the Confidential Information solely for the purposes set forth in this Agreement. Confidential Information shall exclude any information that (i) has been or is obtained by Service Provider from a source independent of the Skype and not receiving such information from the Skype, (ii) is or becomes generally available to the public other than as a result of an unauthorized disclosure by Skype or its personnel, (iii) is independently developed by Service Provider without reliance in any way on the Confidential Information provided by Skype, or (iv) the Service Provider is required to disclose under judicial order, regulatory requirement, or statutory requirement, provided that the Service Providers provides written notice and an opportunity for Skype to take any available protective action prior to such disclosure.

9. Governing Law

The Agreement shall be governed by and construed in accordance with the laws of Luxembourg. Any disputes arising out of or relating to this Agreement shall be subject to the jurisdiction of the courts in Luxembourg.

10. Miscellaneous

The Agreement, the TOS and the EULA constitute the true and entire agreement between parties with respect to the subject matter hereof and shall set aside all prior arrangements. The invalidity or unenforceability of any provision of this Agreement shall not affect the validity or enforceability of the remaining provisions thereof. No amendment to this Agreement shall be valid unless they are made in writing and signed by both Parties. The failure of either party to enforce any of its rights under this Agreement shall not be considered a waiver of that party’s right to enforce said provision or any other provision included herein.