IMPORTANT - PLEASE READ CAREFULLY

Entering into this Agreement: This Service Provider Agreement (the “Agreement”) constitutes a valid and binding agreement between Orca Digital Limited and You, as a Premium Call Services Provider (“the Service Provider”). You hereby agree and acknowledge that this Agreement covers all the provision of Contents and/or Services through the VoiPay Software, by You. You must be 18 years old or older to enter into this Agreement.

VoiPay is a service provided by Orca Digital Limited, whose principal place of business is at 10 Barley Mow Passage, London W4 4PH, UK.  The terms “VoiPay”, “Orca Digital”, “us” and “we” throughout this document have the same meaning.

Preamble

VoiPay wishes to offer its end users a chargeable service using VoiPay, allowing Service Providers to provide chargeable products or services to its users through VoiPay.

1. VoiPay 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 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 VoiPay Software (the "Users") via the VoiPay 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.

1.5 To provide the Service, Service Provider must accept the Terms of Service and privacy policy and register for a User ID. Service Provider shall provide the Content and Service in accordance with the terms of this Agreement.

1.6 Service Provider represents and warrants the accuracy and completeness of information it has provided to VoiPay upon subscription and shall notify VoiPay 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 VoiPay, including to the Users, and permits such disclosure.

1.7 The "VoiPay API" means the application programme interface that enables users to interact with VoiPay for the purpose of retrieving Content relating to a Service from the directory owned and operated by VoiPay in respect of VoiPay which is featured on the VoiPay Website ("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 VoiPay API and displayed on their Website and viewed by the general public.

1.8 Service Provider may provide the Content or Service in any language.

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"), VoiPay will be the first level of customer support.

1.10 In the event of a refund request, VoiPay shall decide, in its sole discretion whether to pay a refund to the User. VoiPay 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 VoiPay 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 GBP and 5 GBP per minute. Service Provider shall be responsible for monitoring that such limits are not exceeded. VoiPay shall charge 20% VAT when applicable.

2.2 VoiPay shall either (i) enable Service Provider to communicate such fee to User through the VoiPay Software, prior to the provision of Service or (ii) communicate the fee defined by the Service Provider through the VoiPay 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.

2.4 VoiPay 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. VoiPay reserves the right to change the Service Fee from time to time by publishing the revised Service Fee on the VoiPay 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.

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 VoiPay reasonably believes that Service Provider is in breach of this Agreement. The Service Fee shall be calculated solely based on invoicing records maintained by VoiPay and the statements of Service Fee issued by VoiPay are final.

2.6 The Service Fee will be paid no later than two (2) months after the end of the calendar month during which the Service is provided to the User. The Service Fee may be paid in the following currency only : GBP.   The Service Fee will only be paid once the total aggregated amount is greater than £100.

2.7 The Service Fee will be paid exclusively into the Service Provider's bank account.  If for any reason whatsoever the payment of the Service Fee cannot be received by the Service Provider's account, the amount will be held for a three (3) 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 banks or conversion costs, shall be borne exclusively by the Service Provider.

2.8 In the event of a Service Issue, or if VoiPay 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, VoiPay 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, VoiPay is entitled to either deduct such refund from the future invoice for Service Fee or charge it to the Service Provider directly.

3. VoiPay’s Undertakings

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

3.2 VoiPay shall use reasonable endeavours to keep the VoiPay Software available for the provison of the Service. VoiPay is entitled to suspend the VoiPay Software or a part thereof in case it is necessary for the repair, improvement, and/or upgrade of the VoiPay Software. Further, VoiPay may change the technical features and/or otherwise adjust the VoiPay 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 breaches the terms of this Agreement, the EULA, Terms of Service or any other applicable Additional Terms;

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 provoking violence; or

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

4.4.5 Content or Service relating to health and therapy.

4.4.6 Content or Service which infringes the IP Rights of any third party.

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 VoiPay Software to misappropriate or otherwise negatively affect VoiPay Software or other products offered by VoiPay.

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 VoiPay 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 VoiPay 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 VoiPay Software to purchase the Service outside of VoiPay  (e.g. by including contact information e.g. email addresses, telephone numbers in the Content);

4.13.6 promote services outside of VoiPay 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 VoiPay 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 VoiPay 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 VOIPAY  IS NOT RESPONSIBLE FOR THE SERVICE OR CONTENT. FURTHERMORE, VOIPAY SHALL NOT BE RESPONSIBLE FOR THE CONTENT OF COMMUNICATIONS SPREAD BY MEANS OF VOIPAY SOFTWARE OR ANY OTHER USE OF VOIPAY SOFTWARE BY USERS OR ANY THIRD PARTY.

5.3 AS THE VOIPAY SOFTWARE OPERATES THROUGH THE PUBLIC INTERNET, SERVICE PROVIDER UNDERSTANDS THAT VOIPAY 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 VOIPAY SOFTWARE, E.G. PACKET LOSS AND DELAY, AND VoiPay WILL NOT BE LIABLE FOR ANY NON-AVAILABILITY, DISRUPTION, DELAYS, FAILURES OR OTHER OMISSIONS IN THE VOIPAY SOFTWARE. THE VOIPAY 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 VOIPAY HARMLESS FROM ANY THIRD PARTY CLAIMS, LOSSES, LIABILITIES, CAUSES OF ACTION AND COSTS INCURRED BY VOIPAY 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 VOIPAY 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 VOIPAY HAS BEEN ADVISED OF THE POSSIBILITY OF SUCH DAMAGES. IN ADDITION, VOIPAY WILL NOT BE LIABLE FOR THE CONSEQUENCES OF ANY INTERRUPTIONS OR ERRORS, OR FOR ANY LOST DATA OR CONTENT. UNDER NO CIRCUMSTANCES SHALL VOIPAY'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 VoiPay FOR (I) THE DEATH OR PERSONAL INJURY CAUSED BY THE NEGLIGENCE OF VoiPay, THE VoiPay 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, VoiPay 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 VoiPay Software; (iv) remove hosted Content; and/or (v) take technical and legal steps to keep Service Provider off the VoiPay Website, if VoiPay 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 VoiPay's policies, infringing someone else's IP Rights, engaging in fraudulent, immoral or illegal activities; or for other similar reasons. VoiPay 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, VoiPay 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 VoiPay 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 care@voipay.cc

7. Intellectual Property and Removal of Innapropriate Content

7.1 All IP Rights regarding the VoiPay 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 VoiPay 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 VoiPay, the VoiPay Website and VoiPay's (and its successors's and Affilates's) business. The Service Provider also hereby grants each user of the VoiPay API a non-exclusive, worldwide, perpetual, irrevocable, royalty-free licence to access Service Provider's Content through the VoiPay 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 VoiPay API.

7.3 The Service Provider shall not copy text, photos, pictures or images from the Content of any other Service Provider on VoiPay 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 VoiPay 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”), VoiPay reserves the right to automatically remove such content immediately or within such other timescales as may be decided from time to time by VoiPay 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 VoiPay 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) VoiPay reserves the right to remove such Content within such timescales as may be decided from time to time by VoiPay in its sole discretion whilst VoiPay investigates the complaint. The outcome of any investigation shall be decided by VoiPay in its sole discretion and Service Provider acknowledges that VoiPay 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 VoiPay 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 VoiPay, 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.

8. Confidentiality

Service Provider acknowledges and agrees that by reason of its relationship to VoiPay under this Agreement it may have access to material, data, systems and other information concerning the operation, business, products, customers and intellectual property of VoiPay 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 VoiPay 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 VoiPay and not receiving such information from the VoiPay, (ii) is or becomes generally available to the public other than as a result of an unauthorized disclosure by VoiPay or its personnel, (iii) is independently developed by Service Provider without reliance in any way on the Confidential Information provided by VoiPay, 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 VoiPay 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 England. Any disputes arising out of or relating to this Agreement shall be subject to the jurisdiction of the courts in England.

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.
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 VOIPAY YOU EXPRESSLY CONSENT TO BE BOUND BY ITS TERMS AND CONDITIONS AND GRANT TO VoiPay THE RIGHTS SET FORTH HEREIN.

© VoiPay / Last revised: August 15 2011