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 toughest business problems. Our services enable you to customise customer communication over calls and SMS.
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 capitalised terms used in this Agreement are defined in Schedule 1.
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, 2013, 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). The exception to this Agreement would be that your organisation 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.
When we refer to our “Product” in this Agreement, we mean:
(i) Telephone numbers that we assign 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;
(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 and make conference calls, interactive voice response calls, missed calls, outbound calls, receive inbound calls, send SMS at any time; and/or combine the APIs to arrive at new functions.
By “APIs” we mean a set of routines, protocols and tools enabled by Exotel which allows 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 our customer happiness portal and developer portalor maybe available on any other web page, as may be notified from time to time.
By “Exophone Numbers” we mean the telephone numbers provided by the telecommunications service providers to Exotel. In order to enable the use of the Product by Exotel’s customers, Exotel assigns Exophone Numbers to its customers.
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 19 (Termination provisions) of this Agreement.
You understand and agree to the following restrictions and limitations that are applicable to your right to use the Product under this Agreement:
4.1 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 in your bill plan page (the “Pricing and Bill Plan”).
4.2 We may revise the Charges payable by you on giving a 30 (Thirty) days’ prior written notice. In case you have any issues with respect to the revised Charges you may connect with our Customer Happiness Team and we will address the issues raised by you within 10 (Ten) days.
4.3 In case you have any issue(s) with the Charges levied, you may seek a clarification from us. We will try to resolve the issue(s) within 10 (Ten) days from the date on which such clarification is sought/dispute is raised.
4.4 Audit Rights: We will generate Billing Reports in accordance with the Pricing and Bill Plan.
By “Billing Reports” we mean the call and SMS reports generated by Exotel which record the direction of the call i.e. whether the call is inbound/outbound, type of call or SMS, details of the originator, details of the recipient (including group of recipients, if applicable), status of the call or SMS, the start time and end time, billable duration, recording URL (if applicable) and pricing details.
You are entitled to audit the Billing Reports generated by us through your authorised representative by issuing a 10 (Ten) days’ prior written notice to us. All costs pertaining to such an audit will be borne by you. You will have the right to exercise the audit rights under this clause once annually.
In the event, such an audit indicates a discrepancy between the amount billed to you and your actual use in such a billing cycle, we undertake to refund the excessive Charges paid by you (if any), within 30 (Thirty) days of completion of such an audit. In the event no discrepancies are found in the amount billed to you, then within 10 (Ten) days of completion of the audit, you will give a letter in writing to us stating that there were no discrepancies in the Billing Reports.
5.1 Exophone Numbers: We will not change or reassign the Exophone Numbers assigned to you unless:
5.2 Product Availability: 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.
5.3 Planned Maintenance: 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.
By “Business Day” we mean a day other than a Saturday, Sunday or a public holiday in Bengaluru, Karnataka.
5.4 Valid Existence: We are validly existing and in good standing under the applicable laws.
5.5 Capacity to Execute the Agreement: We have the full right, power, authority and capacity to enter into this Agreement and perform our obligations.
6.1 You will not use the Product in contravention of the applicable laws including but not limited to the Indian Telegraph Act, 1885 and the rules and regulations made thereunder (as amended or re-enacted from time to time); the Information Technology Act, 2000 and the rules and regulations made thereunder (as amended or re-enacted from time to time); the Indian Wireless Telegraphy Act, 1933 and the rules and regulations made thereunder (as amended or re-enacted from time to time); the Telecom Regulatory Authority of India Act, 1997 and the rules and regulations made thereunder (as amended or re-enacted from time to time) including but not limited to the Telecom Commercial Communications Customer Preference Regulations, 2010 (as amended from time to time). For the sake of clarity, you agree not to use our Product to make any calls or send any messages in contravention of the applicable laws.
6.2 You will not distribute or transmit any Prohibited Messages.
By “Prohibited Messages” we mean messages including Viruses, offensive/ defamatory messages (which term includes text or multimedia messages, voice messages or pre-recorded voice service) or messages which are illegal or cause damage to the person or property of any person during the course of the use of the Product.
By “Virus(es)” we mean any device or machine readable text in any form (including but not limited to any software, code, file or programme) which may prevent, impair or otherwise adversely affect the: (i) operation of any computer software, hardware, network, telecommunications service, equipment, and/or (ii) access to or the operation of or reliability of any programme or data (whether by re-arranging, altering or erasing the programme or data in whole or part or otherwise), and/ or (iii) any other service or device; and adversely affect the user experience.
6.3 You agree not to copy, modify, duplicate, mirror, republish, download, display, transmit, license, sell, transfer, assign, distribute, 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.
6.4 You will ensure that the Customer Data (defined in clause 8.1) is accurate and legally sourced.
6.5 You will protect the privacy of the information collected/received by you through the use of our Product.
6.7 You will only make authorized call recordings in accordance with the applicable laws.
6.8 You will ensure that the Authorised User(s) use the Product in accordance with this Agreement.
6.9 You agree not to use our Product to host, display, upload, modify, publish, transmit, update or share any information that:
6.10 You agree to take approval of the Sender ID and your message templates from our Customer Happiness Team before sending out any Transactional Messages via SMS.
By “Sender ID“, we mean the sender ID created by you in accordance with the Telecom Commercial Communications Customer Preference Regulations, 2010 (as amended from time to time) that you propose to use for sending the Transactional Message(s).
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).
6.11 You are validly existing and in good standing under the applicable laws.
6.12 You and the signatory of this Agreement have the full right, power, authority and capacity to enter into this Agreement and perform its 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, etc. The KYC Page may be available at another location, indicated from time to time.
By “Company Info Page” we mean our company info page wherein you are required to input details about your company such as your registered company address, tax deduction and collection account number (TAN), GST Number etc. The Company Info Page may be available at another location, indicated from time to time.
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 or your Authorised User(s) for the purpose of using or facilitating your use of the Product. Customer Data will include phone numbers provided by you or your Authorized User(s) in relation to the use of the outbound call API, incoming calls to a given number, lists uploaded to the address book, name and email in the address book, and details of the Authorized Users.
By “Exotel Data” we mean the data generated and recorded by Exotel pursuant to your 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.
8.2 Before terminating this Agreement or closing the account, you will be responsible for downloading the Customer Data and Exotel Data for your records.
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. Please refer our support services policy (“Support Services Policy”) for more details. It may be available at another location as indicated from time to time.
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 support services provided by us for you in accordance with our Support Services Policy. Our Customer Support Services will remain available from 6 AM to 12 midnight around the year.
You will provide us with the e-mail address and phone coordinates of your employee/representative who will be responsible for coordinating with us for the purposes of this Agreement at the Company Info page.
You agree to regularly regenerate the Exotel Token/ Exotel SID and login passwords available on our dashboard in order to avoid unauthorised access to our Product. 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 in the settings page or at another location, indicated from time to time.
You understand and agree that in order to comply with the applicable laws, we may either review or disclose the content of the calls or messages transmitted by you using our Product under this Agreement and perform any other act, as we may deem necessary.
You acknowledge and agree that we have the right to use all the Intellectual Property Rights in the Product. Except as expressly stated in this Agreement, we are not granting to you any rights to or rights in patents, copyright, database right, trade secrets, trade names, trademarks (whether registered or unregistered), or any other rights or licences in respect of the Product.
You will not, at any time claim any right in and right to the Product and any new software, content, corrections or enhancements in respect of the Product.
You have agreed to assign to us all present and future rights, title and interests over and upon the property in the copyright relating to the adaptation of our Product and all the rights associated with works of authorships, including without limitation, copyrights, copyright applications, copyright registrations and the right to apply for them in any part of the world.
You also agree that the rights assigned 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.
By “Intellectual Property Rights” we 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 from the source code and mask works;
(ii) trademark and trade name rights;
(iii) trade secret rights;
(iv) patents, designs, algorithms, and other industrial property rights;
(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.
15.1 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.
15.2 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.
15.3 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 reasonably demonstrate 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 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 will not be liable to you or any third party for any loss of profits, loss of use, loss of revenue, loss of goodwill, any interruption of business, or for any indirect, special, incidental, exemplary, punitive or consequential damages of any kind 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. Our total liability arising out of or in connection with this Agreement will be limited to the actual direct loss incurred by you, up to a limit of Rupees Three Lacs (INR 3,00,000/-).
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.
Except as expressly and specifically provided in this Agreement, you assume sole responsibility for results obtained and conclusions drawn from the use of the Product by you.
Subject to the other provisions of this Agreement, Exotel and the Customer agree that:
Each party (hereinafter referred to as the “Indemnifying Party”), at its sole expense, will defend, indemnify and hold the other party and its directors, officers, employees, contractors, agents, permitted successors and assigns (collectively referred to as the “Indemnified Party”) harmless from and against any, damages, settlements, liabilities, costs and expenses (including, but not limited to, reasonable attorneys’ fees) awarded by a court resulting from any claim, suit, action or proceeding (hereinafter referred to as the “Claim”) against an Indemnified Party arising from or related to: (i) gross negligence or wilful misconduct of the Indemnifying Party (or any individual or entity acting on its behalf); and/or (ii) any alleged breach or breach of the Indemnifying Party’s representations or warranties; and/or (iii) any alleged breach or breach of the Agreement by the Indemnifying Party.
The Indemnifying Party’s indemnification obligations under this clause 17 are conditioned upon the Indemnified Party: (a) giving prompt notice of the Claim to the Indemnifying Party once the Indemnified Party becomes aware of the Claim; (b) granting sole 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); 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.
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 merchant-ability, 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.
You may stop using the Product at any time at your sole discretion by closing your account and the Agreement will stand terminated thereafter, except for clause 20 (Survival) below.
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).
You agree that clauses 5 (Exotel’s Representations and Warranties), 6 (Customer’s Representations and Warranties), 14 (Intellectual Property Rights), 15 (Confidentiality Obligations), 16 (Limitation of Liability), 17 (Indemnity Obligations), 18 (Warranty), 23 (Governing Law) and 24 (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 in accordance with clause 19 above.
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. 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.
Except as provided in this Agreement and any annexure or schedule to this Agreement, this Agreement constitutes the entire agreement between the parties and supersedes and extinguishes 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.
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.
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.
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, heirs, administrators, successors and permitted assigns.
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, 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.
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, franchise, 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.
28.1 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; when transmitted, if transmitted by telecopy, electronic or digital transmission method; the day after it is sent, if sent for next day delivery to a domestic address by recognized overnight delivery service (e.g., Federal Express); and upon receipt, if sent by certified or registered mail, return receipt requested. In each case notice will be sent to the respective addresses of the parties set forth below or to such other place, email address or fax number as either party may designate as to itself by written notice to the other.
28.2 Any notice or other communication given to a party under or in connection with this Agreement will be addressed to:
We may amend or modify this Agreement from time to time, in which case the new Agreement will supersede prior versions. We will notify you via e-mail not less than 30 (Thirty) days prior to the effective date of any such amendment or modification and will inform you about the intended amendments or modifications. If you do not object to the amendment or modification within 30 (Thirty) days from aforementioned notice, such non-objection may be relied upon by us as your consent to any such amendment. We will inform you about your right to object and the consequences of non-objection with the aforementioned notice.
No failure or delay (in whole or in part) on the part of a party to exercise any right or remedy hereunder 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.
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, raw materials or equipment (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.