Hey, get a Skype session going and provide therapy anywhere in the state! Sounds easy enough. But there are a lot of ways things can go wrong. For example, how do you know that the “container” at the client end is in fact private? Or, if a client across the state rapidly declines and then hangs up on you, what do you do?
Now it looks like Skype is getting the willies about possible litigation stemming from the use of Skype as a therapy container, at least for their “Skype Prime” directory of service providers (referred to as “Call Providers”).
Skype has a special category of users they call “Service Providers,” using “Skype Prime,” for whom they provide a wraparound billing service. Nothing about therapy is said in the basic EULAs for users; it looks like the only agreement to comply is required if you wish to use Skype Prime services. Here’s their EULA:
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.
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,Content, Service and Support
1.1 Capitalised terms that are not defined in this Agreement shall have the meaning given to them in the EULA, Terms of Service or any other Additional Terms (as applicable).
1.2 The “Content” shall mean any and all content consisting of text, sounds, pictures, photos, video and/or any type of information or communications.
1.3 The “Service” shall mean the provision of Content by the Service Provider 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.
1.4 “IP Rights” shall mean (i) patents, pending patent applications, designs, trade marks and trade names (whether registered or unregistered), copyright and related rights, database rights, knowhow and confidential information; (ii) all other intellectual property rights and similar or equivalent rights anywhere in the world which currently exist or are recognised in the future; and (iii) applications, extensions and renewals in relation to any such rights.
1.6 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.
1.7 The “Skype Prime API” means the application programme interface that enables users to interact with Skype Prime for the purpose of retrieving Content relating to a Service from the directory owned and operated by Skype in respect of Skype Prime which is featured on the Skype Website and on the Skype client application (“Directory”), and displaying such Content on their website, webpage, software application or program (“Website”).Service Provider acknowledges and agrees that the information included in the Content submitted by Service Provider (including without limitation personal information such as the Service Provider’s User ID) in accordance with this Agreement may be accessed by users of the Skype Prime API and displayed on their Website and viewed by the general public.
1.8 Service Provider may provide the Content or Service in the following languages only: English, French, Italian, German, Spanish, Japanese.
1.9 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 1.8.
1.10 In the event of a refund request, Skype shall decide, in its 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.
1.11 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) per 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 a 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 from time to time by publishing the revised Service Fee on the Skype Website. The revised Service Fee shall become effective within thirty (30) days of such publication. The express acceptance or continued provision of the Service or Content by Service Provider after expiry of the 30-day period shall constitute Service Provider’s acceptance to be bound by the revised Service Fee. You can find the current Service Fee(s) at: www.skype.com/go/skypeprimefee
2.5 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 paragraph 1.10 and (iii) any payment from a User that has been charged back for any reason 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 paragraph 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.
2.6 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.
2.7 The Service Fee will be paid exclusively into the 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 their PayPal account. The 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 into their PayPal account. If the Service Provider has not received payment or has received insufficient payment, they should visit Skype support at https://support.skype.com/. If for any reason whatsoever the payment of the Service Fee cannot be received by the Service Provider’s PayPal account, the amount will be held for a six (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 borne exclusively by the Service Provider.
2.8 In the event of a Service Issue, or if Skype suspects any abusive (for example, but not limited to, 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. If the applicable Service Fee has already been paid and claim results in a refund, Skype is entitled to either deduct such refund from the future invoice for Service Fee or charge it to the Service Provider directly.
2.9 If the Service Provider is based in Luxembourg they may have to charge VAT on the Service Fee. Invoices should be sent to Skype Communications Sarl, 23-29 Rives de Clausen, 2165 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 the 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.
4.4.8 infringes the IP Rights of any third party; and/or
4.4.9 breaches the terms of this Agreement, the EULA, Terms of Service or any other applicable Additional Terms.
4.5 Service Provider warrants, represents and undertakes that the 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 IP Rights.
4.6 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 User ID or its access to the Skype Software to misappropriate or otherwise negatively affect Skype Software or other products offered by Skype.
4.7 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.
4.8 Service Provider undertakes not to transmit to the Users, via Skype Software, Service or by other means, unsolicited data including but not limited to, chain mails or unsolicited advertising messages (spam). The Service Provider will not collect personal information from the User unless it is absolutely necessary to provide the Service. The 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.
4.9 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 Content could be regarded harmful or offensive or otherwise forbidden.
4.10 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 advertising or representations.
4.11 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 it supplies hereunder.
4.12 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.
4.13 Service Provider may post Content, including a description of the Service Provider’s Service, on the Directory. Service Provider shall not:
4.13.1 include any prohibited weblinks in the Content (as such prohibited weblinks are defined in paragraph 4.14 below);
4.13.2 post or upload Content in a category that is not representative of the Service;
4.13.3 create a Service title or description that does not accurately describe the Service, or that includes information that could mislead users as to what the Service actually is;
4.13.4 include any information in the Content that does not describe or is not directly relevant to the Service, is intended to misrepresent the Service, or includes brand names or other inappropriate keywords in a title or description of a Service;
4.13.5 offer the opportunity through Skype Software to purchase the Service outside of Skype Prime (e.g. by including contact information e.g. email addresses, telephone numbers in the Content);
4.13.6 promote services outside of Skype Prime or other prohibited products or services;
4.13.7 do any other activity for the purpose of inappropriately gaining attention or diverting users to a Service. Service Provider shall ensure that each listing accurately reflects the Service and that Service Provider does not use any unfair methods to divert members to a Service, including but not limited to a title or description; and
4.13.8 report another Service Provider for infringing Your IP Rights unless You own the IP Rights to the Content you are reporting for unauthorised use or for infringement. You must not report Content or a Service as inappropriate or prohibited in any way unless you have genuine grounds to do so.
4.14 Skype allows Service Providers to post only certain types of links within their Content. A link is a mechanism used to take a User off the Content, whether static or clickable. This applies to any format used for a link that includes but is not limited to text, images, logos or icons. Permitted links are links to a Service Provider’s website or blog telling Users more about the Service Provider’s Service or business, or to a website that provides information about the Service Provider’s experience or qualifications relating to the Service. Prohibited links include, but are not limited to links to websites or webpages that offer to provide services or products outside of Skype Prime and links to websites that solicit User IDs, passwords or any other personal information from Users.
5. Disclaimer, Idemnity 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 IP 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.
5.7 NOTHING IN THIS AGREEMENT IS INTENDED TO EXCLUDE OR RESTRICT OR SHALL BE CONSTRUED AS EXCLUDING OR RESTRICTING THE LIABILITY OF SKYPE FOR (I) THE DEATH OR PERSONAL INJURY CAUSED BY THE NEGLIGENCE OF SKYPE, THE SKYPE STAFF OR ITS AGENTS, OR (II) ANY LIABILITY WHICH CANNOT BE LIMITED OR EXCLUDED BY LAW.
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 with paragraph 2.5.
6.3 Without limiting other remedies, Skype or its Affiliates may with immediate effect and without recourse to the courts: (i) limit, suspend, or terminate this Agreement; (ii) suspend the provision of the Service; (iii) terminate or block the Service Provider’s access to Skype Software; (iv) remove hosted Content; and/or (v) take technical and legal steps to keep Service Provider off the Skype Website, if Skype deems in its sole discretion that Service Provider is in breach of this Agreement or if: there are repetitive Service Issues, refund requests, charge backs of payments related to the Service; if Service Provider is creating problems, possible legal liabilities, acting inconsistently with the letter or spirit of Skype’s policies, infringing someone else’s IP Rights, engaging in fraudulent, immoral or illegal activities; or for other similar reasons. Skype shall effect such termination by preventing the Service Provider from accessing their User Account and/or by removing Service Provider’s Content from the Directory. If the Service Provider provided a valid email address, Skype may provide notice by email in its sole discretion.
6.4 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.
6.5 The terms of paragraphs 2, 4.2, 4.5, 4.7, 5, 6, 7 and 8 and any other provision of this Agreement which is expressed to survive or operate in the event of termination, shall survive termination of this Agreement for whatever reason.
6.6 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 by contacting our customer support team.
7. Intellectual Property and Removal of Innapropriate Content
7.1 All IP Rights regarding the Skype Software, Content and Service and any related documentation which are developed and/or owned by a Party shall be and shall remain the sole property of that Party. Subject to paragraph 7.2 below, nothing in this Agreement implies any transfer of IP Rights or grant of any licenses thereto.
7.2 The Service Provider hereby grants Skype a non-exclusive, worldwide, perpetual, irrevocable, royalty-free, sublicensable and transferable licence to use, reproduce, distribute, modify, adapt, translate, create derivative works from and display the Content in any media in connection with Skype Prime, the Skype Website and Skype’s (and its successors’s and Affilates’s) business. The Service Provider also hereby grants each user of the Skype Prime API a non-exclusive, worldwide, perpetual, irrevocable, royalty-free licence to access Service Provider’s Content through the Skype Prime API and to use, reproduce, distribute, modify, adapt, translate, create derivative works from and display such Content on the user’s Website in accordance with the terms of service of the Skype Prime API.
7.3 The Service Provider shall not copy text, photos, pictures or images from the Content of any other Service Provider on Skype Prime or from any third party or source without specific permission from the owner. Such content may be protected by copyright laws and copyright owners may object to the use of content that they own or have created. If the Service Provider wishes to use any third party content, Service Provider must first ask the permission of the owner of the IP Rights in such content (”Rights Owner”). If the Service Provider breaches this provision and/or Skype receives a report by a Rights Owner or any other third party that the content is being used without their permission or infringes their IP Rights in any way (”Infringement Report”), Skype reserves the right to automatically remove such content immediately or within such other timescales as may be decided from time to time by Skype in its sole discretion. The content shall be taken down without any admission as to liability and without prejudice to any rights, remedies or defences, all of which are expressly reserved. Service Provider acknowledges and agrees that Skype is under no obligation to put back such content at any time regardless of whether or not the Infringement Report is valid.
7.4 If any Content submitted by Service Provider is the subject of any report that it is inappropriate (other than an Infringement Report) Skype reserves the right to remove such Content within such timescales as may be decided from time to time by Skype in its sole discretion whilst Skype investigates the complaint. The outcome of any investigation shall be decided by Skype in its sole discretion and Service Provider acknowledges that Skype is under no obligation to put back any Content which is the subject of such investigation.
7.5 If any photo, picture or image included within any Content submitted by a Service Provider is taken down from a listing by Skype as a result of a report that it is inappropriate or for any other reason, Service Provider acknowledges and agrees that Service Provider is prohibited from posting any further photo, pictures or image within their Content at any time.
7.6 If Service Provider puts back any Content at any time after it has been removed by Skype, such action may result in the cancellation of the Service Provider;s Service and/or the suspension, termination of this Agreement and the Service Provider’s User Account.
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”). The 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.
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.
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 OR BY USING SKYPE PRIME YOU EXPRESSLY CONSENT TO BE BOUND BY ITS TERMS AND CONDITIONS AND GRANT TO SKYPE THE RIGHTS SET FORTH HEREIN.
© Skype Last revised: August 2010