Terms Of Service 2018

Terms Of Use

Namaste and welcome to Exotel Techcom Private Limited a.k.a. Exotel.

 

Exotel is pioneering the effort in putting telecom on the Cloud in places where it is hardest to do so. We are the lego of communication, and our goal is to make it easy and cost-effective for you to use telecom to solve your hardest business problems. Our services enable you to customize customer communication over calls and SMS.

 

These are our terms of use (hereinafter referred to as the “Agreement” or “Terms”). We provide access to our Product subject to the terms of this Agreement.  To be eligible to use our Product you must review and accept the terms of this Agreement.

 

By clicking on the “I Agree” button or using our Product you agree to the terms of this Agreement. The Agreement will become effective from the date you click on the “I Agree” button or from the date of your using the Product (hereinafter referred to as the “Effective Date”).

 

All the capitalized terms used in this Agreement are defined in Schedule 1. Also, please note that the words denoting the singular will include the plural and words denoting any gender will include all genders. Further, headings and subheadings to clauses of this Agreement are for information only and will be ignored in construing any provision of this Agreement.

 

As an attempt to make this reading easier for you, we have tried to highlight some of the key terms of the Agreement. Although, it is important to note that the language on the right is the legally binding stuff.

 

In this Agreement, “we”, “us”, “our” or “Exotel” means Exotel Techcom Private Limited. We are a company incorporated and registered under the Companies Act, 1956, with our registered office at Bangalore. If you are accepting the Agreement or using our Product on behalf of an organization, you are agreeing to these terms for that organization and promising to Exotel that you have the authority to bind the organization to the terms of this Agreement (in such a case, the terms “you”, “your” or “Customer” will refer to that organization). If you use our Product within the territory of India, you will be referred to as a “Domestic Customer” and if you use our Product in any jurisdiction outside India, you will be referred to as an “International Customer”. It is clarified that the use of the terms “you”, “your” or the “Customer” in this Agreement will include reference to both the Domestic Customer(s) and International Customer(s).

 

The exception to this Agreement would be that your organization has a separate contract with us covering the use of our Product, in which case that contract will govern your use of Exotel’s Product

 

For the sake of convenience, in this Agreement, Exotel and the Customer may also be referred to individually as a ‘party’ and collectively as the ‘parties’.

 

If you have any questions regarding this Agreement, please connect with us on legal@exotel.com.

Find our old terms here

1. Description of Product

When we refer to our “Product” in this Agreement, we mean:

(i)  telephone numbers that we allocate to you (hereinafter referred to as “Exophone Numbers”);

(ii)  our platform, user interface along with the related application programme interfaces (hereinafter referred to as “API(s)”);

(iii)  our browser extension and our software development kit;

(iv)  our mobile phone application; and

(v)  any document made available by Exotel to you relating to the Product or its use (hereinafter referred to as “Documentation”).

 

Use of our Product enables our customers to make, create, control, track, monitor, record conference calls, interactive voice response calls and send SMSs at any time, and/or combine the APIs to arrive at new functions.

 

Explanation:

  1. By “APIs” we mean a set of routines, protocols and tools enabled by Exotel which allow its customers to develop programs as per their requirements and/ or customize the Product to suit their needs. A list of our APIs is available at support.exotel.in and developer.exotel.com, or maybe available on any other webpage, as maybe notified from time to time.
  2. By “Exophone Numbers” we mean the telephone numbers provided by the telecommunication service providers to Exotel. In order to enable use of the Product by Exotel’s customers, Exotel allocates Exophone Numbers to its customers.

 

We are a cloud communications platform. Our products include the platform itself (as APIs), the user interfaces, mobile app, chrome extensions and other SDKs. Exophone numbers are phone numbers that have been temporarily allotted to you so that you can use it as an endpoint for using the products and services. Exotel is not a replacement for your phone. It only works along with another valid telecommunication resource like a landline or a mobile phone connection.

2. Right to Use the Product

Exotel has agreed to grant to you a non- exclusive, non-transferable and revocable right to use the Product in accordance with the terms and conditions of this Agreement, and you agree to use the Product subject to such terms and conditions. The non-exclusive, non-transferable and revocable right to use the Product will cease to exist when this Agreement is terminated as per clause 21.2 (Termination) of this Agreement. It is clarified that Exotel is not creating any right or interest in the Exophone Numbers in favour of the Customer or its Authorized Users under this Agreement except for the limited purpose of accessing and using the Product.

 

In respect of International Customers, it is clarified that where not permitted by applicable law, Exotel will not be able to create any right or interest in the Exophone Numbers in favour of such International Customers or its Authorized Users under this Agreement, except for the limited purpose of accessing and using the Product.

 

We love it that you are joining the Exotel family. You will be sharing our product with Exotel’s other customers. Please bear in mind that you cannot transfer your account to any other person or company. If you want to do that, please let us know so that the contract continues to remain valid.

3. Restrictions and Limitations to the Right to Use the Product

You understand and agree to the following restrictions and limitations that are applicable to your right to use the Product under this Agreement:

(a) The Product can be used only by you and/or a person whom you may specifically authorise to use our Product, (hereinafter referred to as an “Authorized User”) for business communication purposes. It is hereby further clarified that  Domestic Customers or its Authorised User(s) are not permitted to resell the right to use our Product. It is also clarified that International Customers or its Authorised User(s) will also not be permitted to resell the right to use our Product, unless such reselling is permitted by applicable law. It is further clarified that where the law permits reselling of our Product in an international jurisdiction (i.e., outside India), an International Customer may resell the Product subject to separate terms and conditions that will be agreed to between the parties for this purpose. Further, the International Customer will not resell the Product until execution of a separate agreement with Exotel for this purpose.

You will assume all liability that arises from any misuse of our Product or breach of the provisions of this Agreement by your Authorised User(s).

 

(b) The Product is not intended to support or carry emergency calls to any Emergency Services.

By “Emergency Services” we mean services that allow a user to connect with emergency services such as law enforcement service, fire service, medical service or any other similar emergency services or any other similar emergency services.

 

(c) Being a public cloud user, you will share the Product/ Exotel’s telephony resources with all of our other customers. Your experience may vary depending on volumes from other customers.

 

(d) API Throttling Limit is 200 (Two Hundred). This API Throttling Limit may be increased based on a request from you.

By “API Throttling Limit” we mean the maximum number of concurrent HTTP requests per minute on a given API end point. The list of API end points may be available at support.exotel.in, developer.exotel.com, or any other webpage, as maybe notified from time to time.

 

(e) The Product can handle up to a maximum of 130% (One Hundred and Thirty percent) of the Customer’s Normal Communication Volume at any instance of time.

By “Normal Communication Volume” we mean the average concurrent call or SMS volumes as recorded in your previous billing period.

 

(f) Exotel is an intermediary and has no control over the manner in which you use the Product.  You are required to use the Product in accordance with all the applicable laws. Exotel expressly disclaims any representation that the Product complies with all applicable laws and regulations outside of India. If you use the Product outside of India, you expressly understand and agree that you are responsible for determining compliance with different laws, regulations, or customs that may apply in connection with your use of the Product.

 

(g) In order to give you a better experience and/or to deal with certain external factors, Exotel reserves the right to modify the attributes and resources available to the APIs from time to time. You will be notified about any such changes made to the API through e-mail to the primary admin and through popup notifications in the application.

Please note that Exotel will not be liable to you or any third party for such modifications to the API/(s) or adverse effects (if any) that may result to you from such modifications.

 

(h) The Product may not be available to you for use in the event that you exceed your Credit Limit (defined below in clause 4.2), if applicable.

 

(i) We will not change or revoke the Exophone Numbers allocated to you unless:

(a) the Exophone Numbers are revoked by the telecommunication service provider; and/or

(b) a regulatory authority prohibits the use of Exophone Number(s); and/or

(c) the law requires us to do so.

 

(j) We will ensure that the Product is available for your use 24 (Twenty Four) hours a day and 7 (Seven) days a week, except in the case of a planned maintenance or when the telecommunication service providers’ networks and servers are down. The functionality of the Product will also be subject to limitations, delays and other problems due to the use of external infrastructure, technology and services. You understand that we will not be responsible for any delays, default, or any other loss or damage caused by a person outside our control.

 

(k) Before beginning a planned maintenance, we will notify you at least 12 (Twelve) Normal Business Hours in advance.

By “Normal Business Hours” we mean 10 A.M. to 6 P.M. Indian Standard Time (IST) each Business Day or 4:30 A.M. to 12:30 P.M. Greenwich Mean Time (GMT) each Business Day.

By “Business Day” we mean a day other than a Saturday, Sunday or a public holiday in Bengaluru, Karnataka, India.

 

(l) Exotel may limit the number of Authorised Users as per the pricing and the bill plan to which you have subscribed which is available at https://my.exotel.in/billing

 

(m) Post termination of this Agreement, you and/or your Authorised User(s) will not use the Exophone Number(s) that were allocated to you under this Agreement and we will have the right to re-allocate such Exophone Number(s) to our other customers.

 

You need to take care of a couple of things while using our product – calls to emergency numbers will not work, you can hit our API servers 200 times in a minute, your mileage may vary a bit from time to time depending on usage by other customers. Our API signatures may change, but we will let you know about it in advance and give you enough time to migrate. Also, we want to ensure that you get uninterrupted access to our product. But, sometimes the product may not be available for a couple of hours because of scheduled maintenance or because the servers are down. Be assured, that we will let you know at least 12 hours before starting a scheduled maintenance.

4. Charges, Bill Plan, Credit Limit and Invoice

(4.1) Charges and Bill Plan: You agree to pay the charges for the use of the Product (hereinafter referred to as “Charges”) in accordance with the pricing and the bill plan to which you have subscribed which is available at https://my.exotel.in/billing (the “Pricing and Bill Plan”).

 

(4.2) Credit Limit: If applicable, your current Credit Limit will be accessible at https://my.exotel.com/billing. You agree that it is your responsibility to ensure that the Credit Limit is not breached. Your Credit Limit may be modified by Exotel during the use of your Product and the Term of this Agreement.

 

By “Credit Limit” we mean the maximum amount of credit that Exotel may extend to you for the use of its Product.

 

Be sure to keep a tab on your credit limit. If you breach your credit limit, the Product will not be available to you.

 

(4.3) Revision of Charges:  Before making any upward revision of Charges, we will give you a 30 (Thirty) days’ prior written notice. However, in the event of any changes that result in rise in input cost, we may revise the Charges payable by you on giving a 15 (Fifteen) days’ prior written notice.  In case there is a dispute with respect to the revised Charges between the parties, the parties will try to resolve the dispute through discussions from the date a party notifies such dispute.  In case the dispute about revision of Charges stays unresolved, the parties can terminate this Agreement in accordance with clause 21.2 (Termination).

 

(4.4) Payment of Invoices: Exotel will raise an invoice for your use of the Product (hereinafter the “Invoice”) on or after the last day of each month. In case you are using our Product on a post-paid basis, you agree to clear payments towards the Invoice within Thirty (30) days from the date of the Invoice. It is hereby clarified that in case you are using our Product on a prepayment basis, the Invoice will be automatically settled against the prepayment deposit made by you in accordance with the Pricing and Bill Plan.

 

(4.5) Disputed Invoice: In the event you dispute any Invoice, in whole or in part, you will notify us within Three (3) Business Days from the date of receipt of such an Invoice of your intention to do so.

 

Upon receipt of such a notification, parties will amicably discuss such a disputed Invoice and make all reasonable endeavours to resolve such a dispute.

 

(4.6) Pay As You Go Option: Where applicable, you may choose to use the pay as you go option instead of waiting for the monthly Invoice for making payments due on your account to Exotel.

5. Exotel’s Representations and Warranties

We represent and warrant that:

 

(5.1) Valid Existence: We are validly existing and in good standing under the applicable laws.

 

(5.2) Capacity to Execute the Agreement: The signatory to this Agreement has the full right, power, authority and capacity to execute this Agreement on our behalf.

6. Customer’s Representations and Warranties

You represent and warrant that:

 

(6. 1) You will ensure that you and/or your Authorised User(s) use the Product in accordance with applicable laws and this Agreement. It is clarified that you and/or your Authorised User(s) will not use our Product to make any calls or send any messages in contravention of the applicable laws.  Before using our Product in any jurisdiction, you and/or your Authorised User(s) will familiarize yourself with all laws applicable to our Product in such a jurisdiction and only use our Product if and in the manner the law permits. Exotel provides no representation or warranty in this regard.

 

While using our product, you and your Authorised Users have to be sure to comply with all the laws applicable to you.

 

(6. 2) You and/or your Authorised User(s) will not copy, modify, duplicate, mirror, republish, download, transmit, license, sell, transfer, assign, display or otherwise commercially exploit or distribute all or any portion of the Proprietary Technology and the Product in any form or assist third parties in obtaining access to the Product or build a product or service which competes with the Product.

 

By “Proprietary Technology” we mean our communication and optimization solutions, user interfaces, API adaptation details, configurations and related documentation.

 

Please do not allow anyone to build or help build any product that is similar to or competes with our product. Please, no virus and such other stuff as mentioned in clause 6.7. Let’s follow all the rules.

 

(6. 3) You and/or your Authorised User(s) will ensure that the Customer Data (defined below in clause 9) is accurate and legally sourced.

 

(6. 4) You and/or your Authorised User(s) will protect the privacy of the information collected/received by you through the use of our Product.

 

(6. 5) You and/or your Authorised User(s) have read, understood and grant your consent to our privacy policy which is located at https://exotel.com/privacy-policy-2017/  (“Privacy Policy”). The location of the Privacy Policy may be changed from time to time. You will be kept notified of any such change. Further, you also agree to share our Privacy Policy with every person whose information will be processed by us on your behalf during the course of your use of the Product.

 

When you use our product, certain personally identifiable and non-personally identifiable information related to you gets recorded with us. While we are committed to maintaining the confidentiality of your personal information, there may be some situations where we may have to disclose your information. For instance, on a request from the government. Our Privacy Policy will tell you how we will use your information. Do go through our Privacy Policy, before you start using our product.

 

(6. 6) You and/or your Authorised User(s) will only make call recordings and use such call recordings in accordance with the applicable laws.

 

(6. 7) You and/or your Authorised User(s) agree not to use our Product to host, display, upload, modify, publish, transmit, update or share any information that:

(a) belongs to another person and to which you do not have any right of use;

(b) is grossly harmful, harassing, blasphemous, defamatory, obscene, pornographic, paedophilic, libellous, invasive of another’s privacy, hateful, or racially, ethnically objectionable, disparaging, relating or encouraging money laundering or gambling, or is otherwise unlawful in any manner whatsoever;

(c) harms minors in any way;

(d) infringes any patent, trademark, copyright or other proprietary rights (whether ours or of any other person);

(e) deceives or misleads the addressee about the origin of such messages or communicates any information which is grossly offensive or menacing in nature;

(f) impersonates another person;

(g) threatens the unity, integrity, defence, security or sovereignty of India or any country, friendly relations of India or any country with foreign states, or public order or causes incitement to the commission of any cognisable offence or prevents investigation of any offence or is insulting to any nation;

(h) contains software viruses or any other computer code, files or programs designed to interrupt, destroy or limit the functionality of any computer resource;

(i) is aimed at inflicting hatred or dissension based on ethnic groups, religions, races, and inter-groups;

(j) relates to gambling;

(k) relates to any extortion and/or threats;

(l) false and/or misleading information resulting in consumer loss, whether knowingly or unknowingly; and/or

(m) violates any law for the time being in force.

 

(6.8) Domestic Customer(s) and/or its Authorised User(s) agree to take approval of the Sender ID from our Customer Happiness Team before sending out any Transactional Messages via SMS. Further, such a Domestic Customer agrees to send out a Transactional Message to a Subscriber pertaining to its services or activities only in response to a verifiable request from such a Subscriber and/or in accordance with applicable law (as amended from time to time). An International Customer and/or its Authorised User(s) agrees to take approval of the Sender ID from our Customer Happiness Team before sending out any commercial communication through SMS or any other means.

By “Transactional Message(s)we mean the transactional message(s) as defined under the Telecom Commercial Communications Customer Preference Regulations, 2010 (as amended from time to time) or any other law as amended from time to time.

By “Sender ID“, we mean the sender ID created by the Customer in accordance with the local telecom or other such applicable laws relating to commercial communication or otherwise, such as the Telecom Commercial Communications Customer Preference Regulations, 2010 (as amended or re-enacted from time to time) that are applicable to Domestic Customers.

 

(6.9) You and/or your Authorised User(s) agree not to use our Product to make a conference call or send a message to any Subscriber registered under the NDNCR and/or NCPR or any other applicable customer preference-based do-not-disturb database for sharing unsolicited commercial communication (except in accordance with the applicable law).

 

(6.10) You are validly existing and in good standing under the applicable laws.

 

(6.11) You have the full right, power, authority and capacity to execute this Agreement.

 

(6.12) You and/or your Authorised Users will not use the Product to inter-alia collect or process personal data of a data subject (who is in the European Union) in the course of an activity which falls within the scope of European Union law.

 

(6.13) You and/or your Authorised User(s) have obtained and will continue to obtain a clear written consent from every person for (i) the purpose and (ii) the duration, for which their information will be processed by us on your behalf during the course of your use of the Product. This consent may be through letter or email or any other manner prescribed by the applicable data protection law. You and your Authorised User(s) also agree to provide a copy of the aforementioned written consent to us immediately, upon request, and in such a manner so as not to cause Exotel or a service provider of Exotel, to be in violation of any applicable laws.

 

(6.14) You and/or your Authorised User(s) collect information in accordance with applicable data protection laws.

7. Know Your Customer Obligations

You agree to provide us with complete and accurate information at the Company Info Page, KYC Page and such other URLs as informed to you by us from time to time.

 

By “KYC Page” we mean our know your customer page wherein you are required to upload your proof of identity documents such as address proof, your incorporation certificate and such other documents as may be requested from time to time. The KYC Page is accessible at https://my.exotel.com/settings/kyc, or maybe available at another location, indicated from time to time.

 

By “Company Info Page” we mean our company info page wherein you, if you are a Domestic Customer, are required to input details about your company such as your registered company address, tax deduction and collection account number (TAN), goods and services tax (GST) number and such other details as may be requested from time to time (if so required); and if you are an International Customer, are required to input details about your company such as your registered company address, details related to your tax registration and such other details as may be requested from time to time, if so required. The Company Info Page is accessible at https://my.exotel.com/cinfo, or maybe available at another location, indicated from time to time.

 

We have created a KYC Page and a Company Info page to know some basic information about our customers. Before you start using our product, please fill in the information and upload the documents that we have requested. This information is essential to be compliant with telecom laws and for taxation filings.

8. Data Sharing

(8.1) During the Term of this Agreement, you will be able to download Customer Data and Exotel Data for the previous 9 (Nine) months. Customer Data and Exotel Data beyond this period may be made available to you on request, if commercially feasible.

 

By “Customer Data” we mean the data provided by you and/or your Authorised User(s) in the course of your use of the Product. Customer Data will include (as applicable) phone numbers, email addresses and names provided by you or your Authorized User(s) in relation to your use of the Product.

By “Exotel Data” we mean the data automatically generated and recorded by Exotel system pursuant to your and/or your Authorised User(s)’ use of the Product which includes but is not limited to billing and pricing information, meta data about a call (telecom circle, operator, location of call, time of call and duration), activities that you or your Authorised User(s) do in creating work flows, SMS templates, audio uploads and activities performed either by you or your Authorized User(s) in and during a call such as dual tone multi frequency key access and details of the Authorized Users.

 

(8.2) Customer Data and Exotel Data will be treated as Confidential Information (defined in clause 17 below); and subject to the confidentiality obligations set out in clause 17 (Confidentiality Obligations) of this Agreement, the Customer Data and Exotel Data will be handled in accordance with our Privacy Policy located at https://exotel.com/privacy-policy-2017/ (or maybe available at another location, as indicated from time to time).

 

(8.3) Before terminating this Agreement in accordance with clause 21.2 (Termination), you will be responsible for downloading the Customer Data and Exotel Data for your records.

 

(8.4) On termination of the Agreement your Customer Data and Exotel Data will be deleted as soon as reasonably possible. However, it is hereby clarified that we will retain Customer Data and Exotel Data if required by applicable laws.

 

We understand that there may be times, for instance at the end of the term of this agreement, that you need data connected with your use of the product. This data may include the data shared by you for using our product or the data generated or recorded by us. If you need any data relating to the last 9 months, please feel free to reach out to us, and we’ll try our best to share it with you.

9. Customer Support Services

Our Customer Happiness Team will provide you with Customer Support Services for any queries or issues that you or your Authorised User(s) may have in relation to the Product. Our support services policy is located at https://support.exotel.in/support/solutions/articles/38297-when-will-you-resolve-my-query-or-answer-my-ticket, or maybe available at another location, as indicated from time to time. (“Support Services Policy”).

 

By “Customer Happiness Team” we mean the concerned Exotel team that provides Customer Support Services. Our Customer Happiness Team’s mission is to provide workarounds and solutions during Product downtimes and be generally available to assist our customers.

 

By “Customer Support Services” we mean the support services provided by us to you in accordance with our Support Services Policy. For Domestic Customers, our Customer Support Services will remain available from 6 AM to 12 midnight around the year. For our International Customers, the Customer Support Services will remain available from 12:30 AM to 6:30 PM Greenwich Mean Time (GMT) around the year.

10. Point of Contact

You will provide us with the name, designation, e-mail address and phone co-ordinates of you or your representative who will be responsible to co-ordinate with us for the purposes of this Agreement at the Company Info page.

If there is a request from the Government, we require you to provide full cooperation in speedily resolving the issue. Consider DND violation for example: Between the two of us, we have 2 days to respond back to the Operator with proofs. We will contact the POC (person of contact) for organising these kinds of documents.

11. Publicity

You agree to grant us the right to use your brand name and logos on our Website and other marketing material solely for marketing purposes.

12. Exotel Token

You and your Authorised User(s) agree to regularly regenerate the Exotel Token/ Exotel SID and login passwords through our dashboard in order to avoid unauthorised access to our Product through your Exotel account. In the event of any unauthorised access, you agree to indemnify us against all claims, loss or damage arising from such unauthorised access. You also agree to pay the Charges for the use of the Product on account of such unauthorised access.

By “Exotel Token”/ “Exotel SID” we mean a unique and private API credential to avoid the unauthorized use of a customer’s account with Exotel. Exotel Token and Exotel SID are available at https://my.exotel.in/settings/site#api-settings, or maybe available at another location, indicated from time to time.

 

Exotel SID and Exotel Token are like username and password for your application. Keep it safe.

13. Regulatory Violation

Notwithstanding any other provision of this Agreement, a Domestic Customer agrees to indemnify us against any liability that we may accrue due to a violation of the Regulations and other applicable law by such Domestic Customer and/or its Authorised User(s), while using our Product, such as by sending out Promotional Message/(s) or Transactional Message/(s) or making conference calls for communicating unsolicited commercial information to any Subscriber registered under the NDNCR and/or NCPR and/or such similar consumer preference-based do-not-disturb database/register, without first obtaining the Subscriber’s necessary consent in the appropriate manner under applicable law.

 

Notwithstanding any other provision of this Agreement, an International Customer agrees to indemnify us against any liability that we may accrue due to a violation of the applicable law by such an International Customer and/or its Authorised User(s), while using our Product, such as by sending out an unsolicited commercial communication to any Subscriber registered under any applicable consumer preference-based do-not-disturb database.

14. Regulatory Disclosure

You understand and agree that in order to comply with the applicable laws, we may either review or disclose the content of the conference calls or messages transmitted by you and/or your Authorised User(s) using our Product under this Agreement and perform any other act, as may be required by law from us. On request, your point of contact will provide all information that we seek within One (1) Business Day. You agree to provide all information required for compliance with the applicable laws, and in such a manner and in such a timeline so as not to cause Exotel or a service provider of Exotel, to be in violation of any applicable laws.

 

The government authority may demand to review the content of calls made using our product. If that happens, we will have to disclose the content of your calls to comply with the law.

15. Intellectual Property Rights

(15.1) You acknowledge that we own and have the right to use all the Intellectual Property Rights in our Product. We are only granting to you a limited right to use our Product (as stipulated in clause 3 (Right to Use the Product)) in accordance with this Agreement and are not granting to you any Intellectual Property Rights in our Product (including any new software, content, corrections or enhancements, adaptations and additions made in relation to our Product).

 

(15.2) You will not, at any time claim and/or apply for any right in and right to our Product and any new software, content, corrections or enhancements, adaptations and additions in respect of our Product. You have agreed to assign to us all present and future rights (including Intellectual Property Rights), title and interests, in, over and upon any and all content, corrections or enhancements, adaptations and additions in relation to our Product, in India or any part of the world. You also agree that the rights assigned to us by you are absolute, exclusive, perpetual and irrevocable. We will be entitled to transfer the rights to any person and use it anywhere in the world without requiring any interference or interruption from you.

16. Confidentiality Obligations

(16.1) Parties agree that:

Confidential Information” means all information disclosed (whether in oral, written, or other tangible or intangible form) by one party (hereinafter referred to as the “Disclosing Party”) to the other party (hereinafter referred to as the “Receiving Party”) concerning or related to this Agreement, Product or the Disclosing Party (whether before, on or after the Effective Date), be it expressly designated as confidential or not and that which may reasonably be inferred/ considered to be confidential from its nature or circumstances surrounding its disclosure. It is clarified that Confidential Information will include without limitation: (a) any data or information that is competitively sensitive material, and not generally known to the public, including, but not limited to, information relating to the Product; activities related to marketing, finance, operations; and our vendors/service providers; (b) any scientific or technical information, design, process, procedure, formula, or improvement that is commercially valuable and secret in the sense that its confidentiality affords a party a competitive advantage over its competitors; and (c) all confidential or proprietary concepts, documentation, reports, data, specifications, computer software, source code, object code, flow charts, databases, inventions, know-how, show-how and trade secrets, whether or not patentable or copyrightable.

 

(16.2) The Receiving Party will maintain in confidence the Confidential Information of the Disclosing Party. The Receiving Party will use the same degree of care in protecting the Disclosing Party’s Confidential Information as the Receiving Party uses to protect its own Confidential Information from unauthorized use or disclosure, but in no event less than reasonable care. Any Confidential Information of the Disclosing Party will be used by the Receiving Party solely for the purpose of carrying out the Receiving Party’s obligations under this Agreement. Further, it is clarified that the Receiving Party may disclose the Confidential Information to its employees, advisors, professional consultants and lawyers (hereinafter referred to as “Representative/(s)”) on a strict need to know basis, provided such Representative/(s) have entered into a non-disclosure or other confidentiality agreement with the Receiving Party containing terms substantially similar to the terms of confidentiality contained in this Agreement.

 

(16.3) Confidential Information will not include information that: (a) is in or enters the public domain without breach of the provisions of this Agreement through no fault of the Receiving Party; (b) the Receiving Party can demonstrate (from the files/documents in existence at the time of disclosure) was in its possession prior to first receiving it from the Disclosing Party; (c) the Receiving Party can demonstrate was developed by the Receiving Party independently and without use of or reference to the Disclosing Party’s Confidential Information; (d) the Receiving Party receives from a third-party without restriction on disclosure and without breach of a nondisclosure obligation; or (e) is required to be disclosed to our service providers, including payment gateway providers, pursuant to a legal proceeding or investigation; or (f) is required to be disclosed pursuant to a judicial or legislative order or proceeding; provided that, to the extent permitted by and practical under the circumstances, Receiving Party will provide to the Disclosing Party prior notice of the intended disclosure and an opportunity to respond or object to the disclosure; or if prior notice is not permitted or practical under the circumstances, a prompt notice of such disclosure.

 

We both have a duty to protect each other’s confidential information and not share it with other people or parties unconnected with this agreement.

17. Limitation of Liability

We will not be liable to you or any third party for any indirect, special, incidental, exemplary, punitive or consequential damages of any kind, including but not limited to loss of profits, loss of use, loss of revenue, loss of goodwill, interruption of business, arising out of or in connection with this Agreement, whether in contract, tort, strict liability or otherwise, even if we have been advised as such or are otherwise aware of the possibility of such damages. To the maximum extent permitted by law, our total liability arising out of or in connection with this Agreement will be limited to the actual direct loss incurred by a Domestic Customer, up to a limit of Rupees Three Lacs (INR 3,00,000/-). With regard to an International Customer, to the maximum extent permitted by law, our total liability arising out of or in connection with this Agreement will be limited to the actual direct loss incurred by the International Customer, up to a limit of USD Four Thousand Five Hundred (USD 4,500/-).

 

Please note that multiple claims will not expand this limitation. This clause will be given full effect even if any remedy specified in this Agreement in general is deemed to have failed of its essential purpose.

 

It is clarified that we will not be liable to you and/or your Authorized User(s) for any loss or liability that may accrue to your Authorised User(s) from the use of our Product.

 

Except as expressly and specifically provided in this Agreement, you assume sole responsibility for the results obtained and conclusions drawn from the use of the Product by you.

 

 

Our total liability arising out of or in connection with this agreement will be limited to the actual direct loss incurred by a Domestic Customer (if any), up to a limit of INR 3,00,000; or to the actual direct loss incurred by an International Customer (if any), up to a limit of USD 4,500.

18. Indemnity Obligations

Subject to clause 18 (Limitation of Liability) of this Agreement, Exotel and the Customer agree that:

 

You (hereinafter referred to as the “Indemnifying Party”), at your sole expense, will defend, indemnify and hold Exotel, our directors and employees (collectively referred to as the “Indemnified Party”) harmless from and against any, damages, losses, settlements, liabilities, penalties, fines, costs and expenses (including, but not limited to, reasonable attorneys’ fees) resulting from any claim, suit, action or proceeding (hereinafter referred to as the “Claim”) against Exotel arising from or related to a breach or alleged breach of any provision of this Agreement by you and/or your Authorised User(s).

 

The Indemnifying Party’s indemnification obligations under this clause 19 are conditioned upon the Indemnified Party: (a) giving notice of the Claim to the Indemnifying Party once the Indemnified Party becomes aware of the Claim; (b) granting control of the defense (including, but not limited to, selection and management of counsel) and settlement of the Claim to the Indemnifying Party (except that the Indemnified Party’s prior written approval will be required for any settlement that reasonably can be expected to require an affirmative obligation of or result in any ongoing liability to the Indemnified Party). However, it is clarified that Indemnified Party reserves the right to select and appoint its separate counsel in connection with the Claim. It is further clarified that if, in the Indemnified Party’s view, the Indemnifying Party has not responded to and/or defended the Claim to the satisfaction of the Indemnified Party, the Indemnified Party reserves the right to assume control of the defence at the cost of the Indemnifying Party; and (c) providing reasonable cooperation to the Indemnifying Party and, at the Indemnifying Party’s request and expense, assistance in the defense or settlement of the Claim.

19. Warranty

Without limiting Exotel’s express warranties and obligations under this Agreement, Exotel hereby disclaims any and all other warranties, express or implied, including but not limited to warranties of merchantability, title, non-infringement, and fitness for a particular purpose and warranties related to third-party equipment, material, services or software. Our Product is provided on “as is” basis to the fullest extent permitted by law. To the extent this disclaimer conflicts with applicable law, the scope and duration of any applicable warranty will be the minimum permitted under that law.

20. Term and Termination

(20.1) Term: This Agreement will commence from the Effective Date and will remain in force unless terminated in accordance with the provision of clause 20.2 (Termination) below (“Term”).

 

(20.2) Termination:

 

(a) Subject to clause 20.2 (d) of this Agreement, (i) in case you use our Product on a post-paid basis, you may terminate this Agreement by giving us an advance written notice of 30 (Thirty) days; (ii)  in case you use our Product on a pre-paid basis, you may stop using the Product at any time at your sole discretion by clicking the “close my account” button on your dashboard which will automatically settle all payments against your pre-payment deposit and terminate this Agreement .

 

(b) You also agree that we may temporarily stop providing the Product to you or terminate the Agreement with immediate effect if: (i) you consistently fail to pay an amount that is due as per clause 4 (Charges, Bill Plan, Credit Limit and Invoice) of this Agreement; (ii) there is a breach or alleged breach of the representations and warranties given by you in this Agreement; (iii) there is a breach or alleged breach of any of the provisions of this Agreement, if such breach is not capable of being remedied. Provided however that, in the event of a curable breach, you will cure the breach within Fifteen (15) days from the date of issuance of a written intimation of the same, at the end of which if the breach continues, this Agreement will automatically come to an end; (iv) you suspend or cease, or threaten to suspend or cease, carrying on all or a substantial part of your business; (v) our relevant license(s) get suspended or revoked; (vi) you withdraw your consent to our Privacy Policy; (vii) either you or we file a petition for bankruptcy; (viii) our Product comes under a government or regulatory scrutiny or investigation, or if there is a reasonable anticipation of the same; (ix) there is a dispute between the parties and the parties fail to reach a consensus and the dispute persists beyond Twenty (21) days from the date it was notified; (x) our connectivity service provider(s) suspend or terminate their connectivity services to us; (xi) you object to an amendment of this Agreement by us in accordance with clause 30 (Amendment); and/or  (xii) any law, regulation or a governmental or judicial order/ direction requires us to do so.

 

(c) You agree that we may terminate this Agreement, without cause, by providing you an advance notice of 30 (Thirty) days.

 

(d) On termination of this Agreement for any reason, any rights, remedies, obligations or liabilities of the parties that have accrued up to the date of termination, will not be affected or prejudiced (including but not limited to our right to be paid for the use of our Product).

 

 

If it ever comes to a point where you would like to end our relationship we would really like to understand why and do what it takes to change your mind. Closure of your account does not absolve you of all conditions. For ex – You still have to clear all your pending dues. More conditions are mentioned in the next clause called “Survival”.

21. Survival

Notwithstanding anything else contained in this Agreement, you agree that clauses 5 (Exotel’s Representations and Warranties), 6 (Customer’s Representations and Warranties), 15 (Intellectual Property Rights), 16 (Confidentiality Obligations), 17 (Limitation of Liability), 18 (Indemnity Obligations), 19 (Warranty), 24 (Governing Law) and 25 (Dispute Resolution) and such other clauses which by their nature and context are intended to remain binding post the termination of the Agreement, will survive and remain in effect even after the Agreement is terminated.

22. Third Party Providers

You understand and agree that third parties may develop applications that may be placed on Exotel’s “App Bazaar” application platform. Such applications may be accessed by you or your Authorised User(s). You agree that such access or use will be solely at your own risk. We make no representation or commitment and will have no liability or obligation whatsoever in relation to the content or use of, correspondence with, or interaction with any such third party software applications, or any related transactions.

23. Entire Agreement

This Agreement and its schedules constitute the entire agreement between the parties and supersede and extinguish all previous agreements, promises, assurances, warranties, representations and understandings between them, whether written or oral, relating to its subject matter.

 

Each party agrees that it will have no remedies in respect of any statement, representation, assurance or warranty (whether made innocently or negligently) that is not set out in this Agreement.

24. Governing Law

You understand and agree that Exotel is operated in India and will be deemed to be solely based in India. This Agreement and any dispute or claim (including non-contractual disputes or claims) arising out of or in connection with it or its subject matter or formation will be governed by and construed in accordance with the laws of India, without regard to conflicts of laws and principles that would cause laws of another jurisdiction to apply.

25. Dispute Resolution

We believe that any dispute can be resolved through communication. In case of any grievance, before taking recourse to the legal remedies available to you in law, please try contacting our Customer Happiness Team.

 

Each party irrevocably agrees that the courts of Bangalore, India will have exclusive jurisdiction to settle any dispute or claim (including non-contractual disputes or claims) arising out of or in connection with this Agreement or its subject matter or formation.

 

Make peace not war. Let’s try to resolve any possible dispute through communication. If anything is left unresolved we can turn to the courts in Bangalore.

26. Restrictions on Transfer

Neither this Agreement nor any right or duty under this Agreement may be transferred, assigned or delegated by a party, by operation of law or otherwise, without the prior written consent of the other party. Notwithstanding the foregoing, each party will have the right to assign this Agreement to any successor to substantially all of its business or assets, whether by merger, sale of assets, sale of stock, reorganization or otherwise. Subject to the foregoing, this Agreement will be binding upon and will inure to the benefit of the parties and their respective representatives, administrators, successors and permitted assigns.

 

You are not allowed to transfer or assign any right or duty under this Agreement without taking our permission (except to someone who is acquiring your company).

27. Invalid Provision

If any provision of this Agreement is invalid, illegal or incapable of being enforced by any rule of law or public policy, all other provisions of this Agreement will nonetheless remain in full force and effect so long as the economic or legal substance of the transactions contemplated by this Agreement is not affected in any manner adverse to any party. Upon such determination that any provision is invalid, illegal, or incapable of being enforced, if required, the parties will negotiate in good faith to modify this Agreement so as to effect the original intent of the parties as closely as possible in an acceptable manner to the end that the transactions contemplated hereby are fulfilled.

28. Nature of Relationship

Nothing in this Agreement is intended to, or will be deemed to, establish any partnership or joint venture between any of the parties, constitute any party as the agent, franchisor, franchisee, employee, representative, owner or partner of the other party, or authorize any party to make or enter into any commitments for or on behalf of any other party, and the relationship between the parties will only be that of independent contractors.

29. Notices

(29.1) All notices, requests, demands and other communications which are required or may be given under this Agreement will be in writing and will be deemed to have been duly given: when received, if personally delivered and an acknowledgment in writing is obtained; when transmitted, if transmitted by e-mail; upon receipt of acknowledgement, if sent by registered post with acknowledgement due. In each case notice will be sent to the respective addresses of the parties set forth below. Any change in the address of a party (as stated in clause 29.2 below) should be notified to the other party in a manner set out under this clause 29.1.

 

(29.2) Any notice or other communication given to a party under or in connection with this Agreement will be addressed to:

If to Exotel, as mentioned in our Contact Us page.

If to the Customer, as specified in the Company Info Page.

30. Amendment

We may amend this Agreement (including any policies, such as the Privacy Policy and Support Services Policy that are incorporated into this Agreement) at any time. Before making any amendment to the Agreement, we will send you a notice of amendment via e-mail at least 30 (Thirty) days before the amendment becomes effective. In the notice for amendment, we will inform you about your right to object to the amendment. Your failure to object to the amendment within 30 (Thirty) days of receipt of the said notice of amendment, will constitute your acceptance of the amendment to this Agreement by us.

 

We can make changes to the terms of this agreement from time to time. You can view the most recent copy of the agreement here or another location indicated from time to time.

31. Waiver

No failure or delay (in whole or in part) on the part of a party to exercise any right or remedy under this Agreement will operate as a waiver thereof or effect any other right or remedy. The waiver of one breach or default or any delay in exercising any rights will not constitute a waiver of any subsequent breach or default.

32. Force Majeure

Except for the obligation related to payment of Charges, neither party will be responsible for any failure to perform or delay attributable in whole or in part to any cause beyond its reasonable control, including but not limited to acts of God, government actions, war, civil disturbance, insurrection, sabotage, shortage of energy, or equipment, disruption of communication network/(s) or cloud storage facilities (hereinafter referred to as the “Force Majeure Event”). Provided however, that if a Force Majeure Event occurs, the affected party will, as soon as practicable:

(i)  notify the other party of the happening of the Force Majeure Event and its impact on the performance of the obligations of the affected party under this Agreement; and

(ii) use all reasonable efforts to resolve any issues resulting from the Force Majeure Event and perform its obligations hereunder.

 

Neither of us will be responsible for a failure to perform or delay caused due to an act of god such as government actions, war, civil disturbance, insurrection, sabotage, shortage of energy, raw materials or equipment, disruption of communication network/(s) or cloud storage facilities.

33. Beta Release

(1) We may make new services available to you on a trial basis at no additional cost for a limited period of time (hereinafter, the “Trial Period”) which will be determined at our sole discretion (hereinafter, the “Beta Version Service”).

(2) You understand and agree that the Beta Version Service does not form part of our Product. You also understand and agree that Exotel has no obligations towards you and/or your Authorised User(s) in relation to the use of our Beta Version Service.

(3) While using a Beta Version Service, your experience may vary from time to time. We may make modifications to a Beta Version Service several times during the Trial Period so as to improve customer experience.

(4) You and/or your Authorised User(s) agree to use a Beta Version Service only in accordance with applicable law.

(5) You agree that once the Trial Period for a Beta Version Service is over and we choose to release the Beta Version Service as a regular service/feature of our Product (hereinafter, the “New Feature”), the use of this New Feature by you will be chargeable at a price that will be notified to you before the release of the New Feature (hereinafter, “New Feature Charge”). You understand and agree that if after the Trial Period, you choose to use the New Feature, the New Feature Charge will be added to your Pricing and Bill Plan (as defined in clause 5 of this Agreement) automatically and this modification to the Pricing and Bill Plan will not be treated as a revision of charges under clause 5.2 (Revision of Charges) of the Agreement or a modification of this Agreement.

(6) Depending upon the nature of a Beta Version Service or a New Feature, you may be required to adhere to certain specific terms and conditions with respect to any particular Beta Version Service or New Feature. We will notify you about such specific terms and conditions of use at the time of the release of a Beta Version Service or a New Feature. By using a Beta Version Service and/or a New Feature, you will be deemed to have consented to such specific terms and conditions of use of a Beta Version Service and/or a New Feature (as the case may be) and no written consent will be required.

 

Schedule 1
Definitions

 TermDefinition
(a)Agreement:Agreement means this Cloud Communication Solution Agreement including all its annexures and schedules, as amended from time to time.
(b)API Throttling Limit:API Throttling Limit will have the meaning ascribed to it in clause 3 (d) (Restrictions and Limitations to the Right to Use the Product) of this Agreement.
(c)API(s):
API(s) will have the meaning ascribed to it in clause 1 (Description of Product) of this Agreement.
(d)Authorized User(s):
Authorized User(s) will have the meaning ascribed to them in clause 3 (a) (Restrictions and Limitations to the Right to Use the Product) of this Agreement.
(e)Beta Version Service:Beta Version Service will have the meaning ascribed to it in clause 33 (Beta Release) of this Agreement.
(f)Business Day:Business Day will have the meaning ascribed to it in clause 3(k) (Restrictions and Limitations to the Right to Use the Product) of this Agreement.
(g)Charges:Charges will have the meaning ascribed to it in clause 4.1 (Charges, Bill Plan, Credit Limit and Invoice) of this Agreement.
(h)Claim:Claim will have the meaning ascribed to it in clause 18 (Indemnity Obligations) of this Agreement.
(i)Company Info Page:Company Info Page will have the meaning ascribed to it in clause 7 (Know Your Customer Obligations) of this Agreement.
(j)Confidential Information:Confidential Information will have the meaning ascribed to it in clause 16.1 (Confidentiality Obligations) of this Agreement.
(k)CustomerCustomer will have the meaning ascribed to it in the description of parties.
(l)Customer Data:Customer Data will have the meaning ascribed to it in clause 8.1 (Data Sharing) of this Agreement.
(m)Customer Happiness Team:Customer Happiness Team will have the meaning ascribed to it in clause 9 (Customer Support Services) of this Agreement.
(n)Customer Support Services:Customer Support Services will have the meaning ascribed to it in clause 9 (Customer Support Services) of this Agreement.
(o)Disclosing Party:Disclosing Party will have the meaning ascribed to it in clause 16.1 (Confidentiality Obligations) of this Agreement.
(p)Documentation:Documentation will have the meaning ascribed to it in clause 1 (Description of Product) of this Agreement.
(q)Domestic Customer:
Domestic Customer will have the meaning stated to it in the description of the parties.
(r)Effective Date:Effective Date will mean the date stated in the description of parties, on which this Agreement will come into effect.
(s)Emergency Services:Emergency Services will have the meaning ascribed to them in clause 3 (b) (Restrictions and Limitations to the Right to Use the Product) of this Agreement.
(t)Exophone Numbers:Exophone Numbers will have the meaning ascribed to them in clause 1 (Description of Product) of this Agreement.
(u)ExotelExotel will mean Exotel Techcom Private Limited.
(v)Exotel Data:Exotel Data will have the meaning ascribed to it in clause 8.1 (Data Sharing) of this Agreement.
(w)Exotel Token:Exotel Token will have the meaning ascribed to it in clause 12 (Exotel Token) of this Agreement.
(x)Force Majeure Event:Force Majeure Event will have the meaning ascribed to it in clause 33 (Force Majeure) of this Agreement.
(y)Indemnified Party:Indemnified Party will have the meaning ascribed to it in clause 18 (Indemnity Obligations) of this Agreement.
(z)Indemnifying Party:Indemnifying Party will have the meaning ascribed to it in clause 18 (Indemnity Obligations) of this Agreement.
(aa)Intellectual Property Rights:Intellectual Property Rights mean any and all now known or hereafter existing:
(i) rights associated with works of authorship worldwide, including exclusive exploitation rights, copyrights, moral rights, derivative works and adaptations from the source code and mask works;
(ii) trademark, trade name and company name rights;
(iii) trade secret rights;
(iv) patents, designs, algorithms, and other industrial property rights and additions thereto;
(v) other intellectual property and proprietary rights of every kind and nature, throughout the universe, whether arising by operation of law, by contract or license, or otherwise; and
(vi) all registrations, applications, renewals, extensions, combinations, divisions, or reissues of the foregoing.
(bb)International Customer:International Customer will have the meaning stated to it in the description of the parties.
(cc)KYC Page:KYC Page will have the meaning ascribed to it in clause 7 (Know Your Customer Obligations) of this Agreement.
(dd)New Feature Charge:New Feature Charge will have the meaning ascribed to it in clause 33 (Beta Release) of this Agreement.
(ee)Normal Business Hours:Normal Business Hours will have the meaning ascribed to them in clause 3(k) (Restrictions and Limitations to the Right to Use the Product) of this Agreement.
(ff)NCPR or National Customer Preference Register:NCPR or National Customer Preference Register will have the meaning ascribed to it in the Regulations.
(gg)Normal Communication Volume:Normal Communication Volume will have the meaning ascribed to it in clause 3 (e) (Restrictions and Limitations to the Right to Use the Product) of this Agreement.
(hh)NDNCR or National Do Not Call Register:NDNCR or National Do Not Call Register will have the meaning ascribed to it in the Telecom Unsolicited Commercial Communications Regulations, 2007, as amended from time to time.
(ii)Pricing and Bill Plan:Pricing and Bill Plan will have the meaning ascribed to it in clause 4.1 (Charges, Bill Plan, Credit Limit and Invoice) of this Agreement.
(jj)Product:Product will have the meaning ascribed to it in clause 1 (Description of Product) of this Agreement.
(kk)Promotional Call(s) or Promotional Message(s):Promotional Call(s) or Promotional Message(s) will have the meaning ascribed to them in the Regulations.
(ll)Proprietary Technology:Proprietary Technology will have the meaning ascribed to it in clause 6.2 (Customer’s Representation and Warranty) of this Agreement.
(mm)Receiving Party:Receiving Party will have the meaning ascribed to it in clause 16.1 (Confidentiality Obligations) of this Agreement.
(nn)Regulations:Regulations will mean the Telecom Commercial Communications Customer Preference Regulations, 2010, as amended from time to time.
(oo)Sender ID:Sender ID will have the meaning ascribed to it in clause 6.8 (Customer’s Representation and Warranty) of this Agreement.
(pp)Subscriber:Subscriber will mean a person or legal entity who has subscribed to a telecom service provided by a licensed telecom service provider.
(qq)SMS:SMS will mean a service for sending short messages to mobile devices, including cellular phones, smartphones and personal data assistant devices (PDAs).
(rr)Third Party Website:Third Party Website will have the meaning ascribed to it in the Privacy Policy set out in located at https://exotel.com/privacy-policy-2017/ or maybe available at another location, as indicated from time to time.
(ss)Term:Term will have the meaning ascribed to it in clause 20.1 (Term and Termination) of this Agreement.
(tt)Transactional Message(s):Transactional Message(s) will have the meaning ascribed to them in clause 6.8 (Customer’s Representation and Warranty) of this Agreement.
(uu)Trial Version:Trial Version will have the meaning ascribed to it in clause 33 (Beta Release) of this Agreement.
(vv)URL:URL will mean a uniform resource locator which provides a way to locate a resource, including a web page, on the world wide web through internet.
(ww)Website:Website will mean Exotel’s website accessible at www.exotel.com