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Collaboration agreement

Preamble

1) Mobile Solution s.r.l. (hereinafter "MS") is a company which supplies through the Internet the solutions “SMS Messenger”, “SMS Gateway” and send and receive SMS services for business customers (hereinafter referred to as the "Services"), which are described in greater detail on the website www.skebby.com (hereinafter also referred to as the "Skebby website") and which, pursuant to the General contract conditions and the Commercial Offer which can be consulted on said website, have the purpose of broadcasting SMS messages via computer or mobile telephone devices.

2) MS intends to raise the public's awareness of said "Services" through informative and promotional activities carried out by Affiliated websites and/or blogs, or by Partner and White Label through services’ resale to their customers.

ARTICLE 1 - AFFILIATE

1.1 The preamble to this Affiliation Agreement shall constitute an integral part hereof.

ARTICLE 2 - SUBJECTS

2.1 This Affiliation Agreement regulates the relationships between MS and the Affiliate who has correctly completed the procedure for signing up to the Skebby website and joining the Affiliates program, as specified on the website www.skebby.com, and has read and accepted these General Conditions of Affiliation Agreement. Upon joining the Affiliates programs, the Affiliate will be allocated a unique code.

2.2 Entering into and signing this Agreement with MS is the sole prerogative of the owners of websites, blogs and/or eBay pages who, by correctly carrying out the procedures described in paragraph 2.1, have truthfully informed MS of the data requested therein. MS reserves the right to refuse to enter into this Affiliation Agreement with the Affiliate should the content and activity of the website or blog owned by the latter, wherein the promotional activity which is the scope of this Affiliation Agreement is to take place, breach binding legal provisions, are obscene, or otherwise non-compliant with the image of MS and of its Services.

2.3 This Agreement also regulates the relationship between MS and Partners, i.e. parties who register in the dedicated areas of the same name on the website www.skebby.com, correctly completing the sign up procedure and providing truthful information.

ARTICLE 3 – AFFILIATE'S OBLIGATIONS

3.1 The Affiliate undertakes to insert and maintain on his website or blog's homepage a "Skebby" banner and a link to the website www.skebby.com. The Affiliate undertakes to use only those banners and links provided by MS on its website www.skebby.com, on the pages dedicated to Affiliates. The banner must appear on the first screen of the website and always in a clearly visible position, also taking into account any other banners which may be present.

3.2 The Affiliate undertakes to update the pages of his website or blog at least once per week.

3.3 The Affiliate may actively promote Skebby and Skebby Services through his own website or blog and through the activities carried out therein, through the insertion and maintenance, at his own responsibility and expense, of advertising media or editorial content in addition to that specified in paragraph 3.2 above, such as, including but not limited to, blog posts, editorials, links, banners and pop ups that are visible on the website or blog itself, or through correspondence (such as newsletters) distributed to registered users of the Affiliate's own website.

3.4 The Affiliate undertakes in general to adhere to the formats, configurations and content of the advertising media as indicated by MS through the pages of the website www.skebby.com dedicated to Affiliates, and to respect the legal and contractual provisions set forth in article 8 below regarding the use of trademarks owned by MS. The Affiliate also undertakes not to carry out promotional activities for the Services in such a way that could adversely affect the image of said Services, of Skebby and of MS, and therefore, specifically but not exclusively, not to associate this image with activities or content in breach of binding regulations or which are in any case obscene or in any way non-compliant with said image.

3.5 MS may ask the Affiliate to modify the promotional means used by the Affiliate and/or to use a specific means of publication (which may in some cases be especially prepared by MS). The Affiliate may refuse, in writing sent to MS's email address support@skebby.com, to use said promotional means only if it appears to be excessively expensive, without prejudice to MS's right to withdraw from the Collaboration Agreement.

3.6 The Affiliate undertakes to carry out its activity of publicizing the Services in compliance with current applicable regulations. Specifically, the Affiliate undertakes not to distribute correspondence which constitutes so-called "spam".

3.7 The Affiliate undertakes not to use, even when indirectly and through an intermediary, the Affiliate Code referred to in paragraph 2.1 above, to purchase credit for the "SMS Classic or Basic" services or other Skebby services for himself.

ARTICLE 4 – MS'S OBLIGATIONS TO THE AFFILIATE

4.1 - MS undertakes to insert within the banner and link associated with it provided to each Affiliate and placed by the latter on its website or blog, as set forth in para. 3.1 above, a personal recognition code ("cookie") for the Affiliate. This code will allow users connecting to the website www.skebby.com through the aforementioned banners and links and signing up to said website to be identified as having coming through the Affiliate's website or blog.
MS undertakes to use suitable technical means to allow, for a ten-year period, recognisability of users coming from the Affiliate's blog or website, including those users who sign up to the website www.skebby.com at a later date, subsequent to their initial access to said site through the banners and links present on the Affiliate's blog or website, and even if said subsequent access and sign-up take place via a direct link to the website www.skebby.com, or through links and banners present on websites or blogs of other Affiliates. MS shall not be held liable for any non-fulfillment of the aforesaid obligation should the user coming through the Affiliate's website or blog disable the technical means of recognition (i.e., "cookie").

4.2 For each user recognizable as having come from the website or blog of the Affiliate himself, pursuant to para. 4.1 above, MS undertakes to pay the Affiliate an amount equal to 20% of the sum (excluding VAT) paid by the Customer for each purchase of SMS credit, 
as set forth in the table annexed to the "Affiliate” Commercial Offer on the website www.skebby.com, when said purchase is made within 10 years of the Customer's first access to the website www.skebby.com through the banner or link present on the Affiliate's website or blog. The sums due by MS are to be considered gross of applicable taxes which are payable by MS, acting as withholding agent if necessary, and will be credited to the Affiliate within 60 days of the Affiliate having reached a minimum credit balance of 100 euros, subject to request and issue by the latter of an invoice or fiscal receipt, inclusive of revenue stamp and signed by the Affiliate as required by fiscal regulations. Upon reaching a minimum balance of 50.00 euros and, subject to specific request, the Affiliate shall be entitled to convert this amount of money, gross of applicable taxes, into credit for the purchase of Services for an amount equal to the credit accrued, multiplied by the "Multiplier" parameter as set forth in the table annexed to the Affiliates Commercial Offer on the website www.skebby.com, gross of applicable taxes, subject to request and issue of an invoice or fiscal receipt inclusive of revenue stamp and signed by the Affiliate as required by fiscal regulations.

4.3 MS reserves the right to reduce at any time the percentages referred to in para. 4.2 above, by giving written notice sent to Affiliates on the Account referred to below in para. 4.4 and to the e-mail address indicated at time of registration. The new conditions will enter into force 10 days after the date of said notice. Within this notice period, the Affiliate may withdraw from the agreement by giving written notice sent to MS's e-mail address support@skebby.com. In the latter case, the Affiliate will be paid the outstanding sums and services referred to in para. 4.2, when the events determining MS's liability for such obligations (namely the purchase of credit by the user or payment of Activation Fee for the "SMS Classic or Basic" service, if required) occurred prior to resolution of the agreement.

4.4 MS undertakes to provide the Affiliate, within his own Account on the website www.skebby.com in the "Reports" area, a control panel through which the Affiliate can personally check statistics relating to the amounts which MS is required to pay him pursuant to para. 4.2; the Affiliate may also discover in real time the number of users identified as having come from his own website or blog pursuant to paragraph 3.1 above, the number of "recognizable" users who have Signed up to the website www.skebby.com and the purchase orders made.


ARTICLE 5 – TEMPORARY SUSPENSION OF AFFILIATE'S ACCOUNT, RIGHT OF WITHDRAWAL AND EXPRESS TERMINATION CLAUSE

5.1 Every 6 months MS shall suspend all Affiliate accounts on the Skebby website and the Affiliate must simply click on "Affiliation" in his Private Area in order to reactivate his account. Should the Affiliate fail to click on "Affiliation" within 60 days from the day the Account is suspended, the Collaboration Agreement shall be considered automatically terminated, without prejudice to the Affiliate's right to receive the sums and services referred to above in paragraph 4.2 when the events determining MS's liability for such obligations (namely the purchase of credit by the user) arose prior to the resolution of the agreement and when the Affiliate has accrued a minimum credit balance of 100.00 euros.

5.2 Notwithstanding the provisions in paragraph 4.3 above, the Affiliate has the right to withdraw from this Affiliation Agreement at any time, subject to written notice sent by e-mail to MS, to be confirmed within 2 days by registered letter with return receipt sent to MS at Via Melzo n.12, 20129 Milan, Italy. MS shall consider said withdrawal effective as of the delivery date of the registered letter. From the effective date of withdrawal, MS shall no longer be required to fulfill the obligations set forth in paragraph 4 above, even when the facts determining said obligations occurred prior to this date, and therefore while the Affiliation Agreement was in force.

5.3 This Affiliation Agreement shall be considered automatically terminated should the Affiliate breach any of the provisions set forth in articles 3 and 7 of this Affiliation Agreement, subject to written notice by e-mail sent to the Affiliate at the address indicated at the time of Sign up, or subsequently modified. From the date on which the aforementioned e-mail notification is sent, MS shall no longer be required to fulfill the obligations referred to in Article 4 above, even when the facts determining said obligations occurred prior to this date, and therefore while the Affiliation Agreement was in force, without prejudice to MS's right to act through the competent courts to claim compensation for damages arising from said breach of contract.

5.4 MS shall be entitled to withdraw from the Affiliation Agreement for any reason whatsoever subject to 30 days' advance notice, to be given via e-mail sent to the Affiliate and through prior publication of a notice on the website www.skebby.com. The withdrawal shall become effective 30 days after the dispatch of the notice to the Affiliate, and the latter shall be entitled to receive the consideration referred to in paragraph 4.2 only when the events determining MS's liability for such obligations arose within 1 year of the effective date of withdrawal, while nothing shall be due when said events take place after that date, even if the ten year period following the initial access to the website www.skebby.com has not yet expired.

5.5 MS reserves the right to terminate the "Affiliates" program. Said termination may take place at any time for any reason subject to 30 days' advance notice, to be given via e-mail sent to the Affiliate and through prior publication of a notice on the website www.skebby.com. The termination shall come into effect 30 days after the dispatch of the notice to the Affiliate, and the latter shall be entitled to receive the consideration referred to in paragraph 4.2 except when the events determining MS's liability for such obligations occurred within the date of the effective date of withdrawal, while nothing shall be due when said events take place after such date, even if the ten year period following the initial access to the website www.skebby.com has not yet expired.

ARTICOLO 6 - PARTNER

6.1 The website www.skebby.com contains a dedicated area named "Partner". Any individual is free to sign up to said area, in particular developers, system integrators, IT consultants who promote and integrate the Skebby SMS Gateway within the send SMS IT platforms then offered in outsourcing to companies, professionals, public bodies (Partner’ “Clients”) or who promote and integrate the said gateway directly into their Clients’ applications (i.e. CSM, CRM, ERP) or other subjects, communications agency and businesses that want to promote SMS Messenger Skebby web application.

6.2 With the sign up to the said area it will be created a Partner account. MS allows Partner to recognize Clients as having come via the Partner in different ways. In particular MS will assign a covered partner code to the Partner, who decides to integrate the Skebby SMS gateway to send and receive SMS, included in a link of the reserved area, to be used for the sign up to Skebby by his "Client" or to communicate to the Client himself for the sign up and  SMS credit purchase later, so as to make said Client recognizable as having come via the Partner. Or, as an alternative assign an “unique partner code" to the Partner, which he undertakes to distribute solely to VAT-registered parties (namely companies, professionals, public bodies, associations or charities), defined overall as "business users", to whom the Partner has effectively carried out promotional activities concerning Skebby's paid services and the terms of service, as illustrated in the Commercial Offer published on www.skebby.com. The Partner undertakes not to make personal use of his own assigned "partner code", whether directly or indirectly. Registration to the "Partner" area is also permitted for those already enrolled in the Affiliate program.

6.3 Signing up to the "Partner" area implies no commitment or obligation on the part of the individual registered, to carry out promotional activities to third parties regarding Skebby's paid services and the terms of service. The Partner may disable this arrangement at any time within the Private Area > Partner > Setting. In this case, the Partner shall be entitled to receive the sums referred to in paragraph 6.4 below for all purchases made before the date of the disabling.

6.4 MS undertakes to pay the Partner a sum up to 20% of the amount, excluding VAT, paid for each purchase of SMS credit by: 1. every new Skebby Customer while making said purchase is recognizable as having come via the Partner, pursuant to para. 6.2 above. Said obligation shall be effective for all purchases made by the new Customer starting from the first one as long as the Client is recognizable as having come via the Partner, pursuant to para. 6.2 above. 2. every new Skebby Customer who quotes the "partner code" while making said purchase. Said obligation shall be effective for all purchases made by the new Customer starting from the first made using the "partner code" and for all subsequent purchases using either the "partner code” or even when the "partner code” is not used if the Customer had been linked to the Partner at the sign up via a parner code embedded hyperlink. The percentage of the payment subsequent to each purchase of SMS credit by a Client recognizable as having come via the Partner pursuant to para 6.2 above and that will be credited to the said Client subject to request of an invoice or fiscal receipt, will be up to 20% of the amount depending on the total SMS volume purchase as illustrated in the Partner Commercial Offer published on www.skebby.com.

6.5 The sums, as set forth in para. 6.4 above, due by MS are to be considered gross of applicable taxes which are payable by MS, acting as withholding agent if necessary, and will be credited to the Partner within 60 days of the Partner having reached a minimum credit balance of 100 euros, subject to request and issue by the latter of an invoice or fiscal receipt. The Partner shall be entitled to convert the credit coming from the payment of the sum as specified into credit for the purchase of services for an amount equal to the credit accrued, multiplied by the "Multiplier" parameter as set forth in the table annexed to the Partner Commercial Offer on the website www.skebby.com subject to request and issue of an invoice or fiscal.

6.6 MS reserves the right to reduce, at any time, the percentage specified in paragraph 6.4 above, through written notice sent to the Partners at the e-mail address indicated at time of sign-up The new conditions will enter into force 10 days after the date of said notice.

6.7 Notwithstanding the aforementioned provisions, MS shall under no circumstances be required to pay the Partner any fee or reimbursement of expenses in relation to any promotional activity of Skebby Services, of Gateway SMS Skebby integration and terms of services carried out by the latter.

6.8 MS undertakes to provide the Partner, within his personal Account on the website www.skebby.com in the "Statistics" area, a control panel through which the latter may monitor statistics on the sums due from MS, pursuant to paragraph 6.4 above; the Partner may also view in the number and names of the relevant customers for the purposes of the provisions of the aforementioned paragraph 6.3.

6.9 Every 6 months MS shall suspend all Partners' accounts and the Partner must simply click on "Collaboration" in his Private Area in order to reactivate his account. Should the latter fail to click on "Collaboration" within 60 days from the day the Account is suspended, this Agreement between MS and the Partner shall be considered automatically terminated, without prejudice to the Partner's right to receive the sums and services referred to above in paragraph 6.4 when the events determining MS's liability for such obligations occurred prior to the resolution of the agreement and when the Partner has accrued a minimum credit balance of 100.00 euros.

6.10 The relationship between the Partner and MS implies the application, in addition to this article 6, of articles 7, 8 and 9 of this Agreement, which the Partner specifically approves.

6.11 This Agreement with the Partner shall be considered automatically terminated should the Partner breach any of the provisions set forth in article 7 below, subject to written notice by e-mail sent to the Partner at the address indicated at the time of Sign up, or subsequently modified.
From the date on which the aforementioned e-mail notification is sent, MS shall no longer be required to fulfill the obligations referred to in paragraph 6.4 above, even when the facts determining said obligations occurred prior to this date, and therefore while the Agreement was in force, without prejudice to MS's right to act through the competent courts to claim compensation for damages arising from said breach of contract.

6.12 MS shall be entitled to withdraw from the Agreement with the Partner for any reason whatsoever subject to 30 days' advance notice sent via e-mail to the Partner. The withdrawal shall become effective 30 days after the dispatch of the notice to the Partner, who shall be entitled to the service referred to in paragraph 6.4 above, only when the events determining MS's liability for such obligations occurred within 1 year of the effective date of withdrawal, while nothing shall be due when said events occur after such date.

6.13 MS reserves the right to terminate the "Partner” program. Said termination may take place at any time and for any reason subject to prior publication of a notice on the website www.skebby.com, effective from date of publication. Should the program be suspended, the Partner will be paid the sums due for purchases made up to such date of publication of the notice of termination.

ARTICLE 7 - WHITE LABEL

7.1 White Label is a resale program which allows subscribers to personalise the Skebby SMS Messenger and SMS Gateway applications, by inserting and customising them with their logos, brands and corporate colours and other elements, in order to integrate them into their website or software through their own domain/URL, from where their end clients will access the applications without any visible reference to Skebby. To this end, the “Buy Credit” button which usually directs users to the Skebby website shall be removed and replaced with a link to a White Label web page or with a phone number which clients can use to purchase SMS credit directly from the White Label reseller. 

7.2 The prices applied to White Label resellers shall be those in the special price list which can be viewed online in the White Label reserved area. Credit can be sold on to End Clients or to other Resellers. The smallest package that can be purchased by a White Label is 10,000 SMS. 

7.3 The White Label reseller shall set its own prices for its own clients completely independently of Skebby. 

7.4 Subscribing to the White Label program is completely free of charge, subject to sign up on the website www.skebby.com and filling in the special White Label registration form available on the same website, in the section Resellers> White Label> Sign up now. MS reserves the right to approve applications for registrations within 10 working days, with written notice sent via e-mail to the address indicated in the form; in case of approval, it shall activate the service within a maximum of 10 working days from the notice of approval. 

7.5 The contractual relationship between MS and the White Label is regulated by the general contractual conditions for Business Clients available on the website www.skebby.com > Terms of Service, without prejudice to the specific legislation applicable here and any conditions which may be incompatible with the Skebby Terms of Service. 

7.6 MS may terminate the Contract without advance notice, sending notification via e-mail to the address indicated during the registration, by the 5th date of the following month, should it appear that, on the last day of each month, the White Label has not granted credit equivalent to at least 5000 SMS each to at least two new clients, which must be businesses or public institutions.  

7.7 MS reserves the right to modify the operating conditions of the White Label Reseller program or to suspend it, with 15 days’ advance notice to be sent to users in writing.

7.8 The White Label undertakes to carry out its advertising and resale of SMS Services through its own website and its own contract with end users in compliance with specific legislation currently in force. 

7.9 The White Label undertakes to purchase a sufficient quantity of credit to meet the orders received from its clients and, where these exceed the amount of credit available at the time the order is received, to purchase additional credit and make it available to its client within 1 working day of its receipt, or alternatively to not accept the order and reimburse the payment received. 

7.10 The Contract between MS and White Label shall be legally terminated should the White Label fail to fulfil its obligation as set forth in point 7.9 above, without prejudice to the latter’s faculty, upon receipt of written complaint from MS if it should receive information or notifications from the White Label’s clients regarding failure to issue credit, to send documentation suitable to prove fulfilment of its obligation, within 5 working days of receiving such complaint from MS. 

7.11 With points 7.9 and 7.10 above MS assumes no obligation or responsibility towards the White Label’s third party clients with regard to the latter’s fulfilment or otherwise of credit purchase agreements drawn up with said clients. 

7.12 The White Label declares that it is solely responsible for the content of its own and its clients’ text messages, and holds Skebby harmless from any claim and/or lawsuit brought forward by third parties, as long as said claims or lawsuits are not due to alterations to the message for which Skebby can be held responsible, and carried out without the Client’s consent. 

7.13 The White Label guarantees that the personal data of the end clients hereunder receiving the service offered by the White Label through the Skebby platform has been collected in compliance with current personal data processing regulations and that, where required by said regulations, suitable consent for the processing of personal data for the purposes of supplying the service has been obtained from its end clients. 

7.14 The White Label declares that it possesses all the legal authorisations required for the marketing and resale of SMS and that it contractually obliges its clients to declare the same, i.e. to respect the regulations established by the relevant authorities and by mobile termination operators. The White Label undertakes to insert in its contracts with its clients clauses and obligations to accept responsibility for damages caused by spam, by the failure to respect consumers’ rights, and by other illegal and fraudulent activities. The White Label must remain fully informed and aware of any changes to the national mobile operators’ regulations, as well as of best practices, and keep its clauses and contractual obligations up to date, adopting operative measures for the purposes of preventing spam, failure to respect consumers’ rights, or other illegal activities. 

7.15 The White Label undertakes not to use or allow its clients to use Skebby’s services in which the content asks recipients to call premium rate phone lines e.g. 899xxxxxx,892xxx,894xxx,895xxx.

ARTICLE 8 – USE OF THE SKEBBY TRADEMARK

8.1 The Affiliate, Partner or White Label recognise MS's ownership of the trademarks "Skebby", "Skebby Free SMS" "SMS Skebby 0cent.", "SMS Classic", "SMS Basic", “SMS from website operator”, “SMS from Sim", "Skebby Status Update", "SMS Business", "SMS Messenger", "SMS Gateway", “Email to SMS”, “SMS Group”, "SMS Skebby 0cent. Business", "Skebby Forum", "Skebby Blog", "Skebby Chat" and undertakes not to dispute in any form and whether in court or out of court, their validity and protection, whilst also undertaking not to violate said trademarks.

8.2 Without prejudice to the provisions of paragraph 8.1, the Affiliate, Partner or White Label undertake to use the aforementioned trademarks for the scope of the aforesaid activity for the sole purposes of describing the service offered, to the extent of the provisions of art. 21, para. 1 of the Italian Code of Industrial Property Rights. The Affiliate, Partner or White Label undertake not to use the aforementioned trademarks in defamatory ways or circumstances; in this regard, MS may provide the Affiliate or Partner with compulsory guidelines on the correct use of the trademarks owned by MS.

ARTICLE 9 – LIABILITY OF MS
9.1 The Affiliate, Partner or White Label undertake to indemnify and hold harmless MS from all responsibility, loss, order to pay damages or compensation, including legal expenses, deriving from the activity carried out by the Affiliate, Partner or White Label, including any activities carried out for MS pursuant to the provisions herein, or from the content of the website or of communications containing advertising media for MS.

ARTICLE 10 - JURISDICTION

10.1 MS and the Affiliate, Partner or White Label indicate the Court of Milan as the court of jurisdiction for any controversy relating to the validity, interpretation and breach of this Affiliation Agreement and for any other dispute arising from these rights or connected thereto, notwithstanding the provision in paragraph 10.2 below.

10.2 Should the scope of the controversy between MS and the Affiliate or the Partner or the White Label also include the validity, the interpretation and the breach of article 8 herein, and in the case of all controversies relating to the use of MS's trademarks by the Affiliate, Partner or White Label, MS and the Affiliate, Partner or White Label indicate as the court of jurisdiction the Court of Milan, Industrial and Industrial Property Court Division.

ARTICLE 11 – SPECIFIC APPROVAL OF CLAUSES

11.1 - The Affiliate, Partner and White Label specifically approve clauses n. 5, 8, 9 and 10 herein.

Mobile Solution S.r.l.
Legal office: Via Mascagni n. 14 - 20122 Milan - Italy
C.F.: 03020690131 - N.REA: MI/1877553
www.skebby.com - support@skebby.com
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