User Agreement and Terms and Conditions
THIS AGREEMENT started/entered on the day of opening a user account with Tocaso International, a company incorporated under the Companies Act, 1956 (hereinafter referred to as “Company” which expression shall include its successors in interest and permitted assigns) of the First Part, and the Tocaso client (user), an individual/company incorporated in India under the provisions of the Companies Act (hereinafter referred to as “User” which shall include its successors in interest and permitted assigns) of the other part. Company and [Agent] are referred to individually as “Party” and collectively as “Parties” whereas:
A. The Company is engaged in the business of providing voice-based cloud telephony solutions and other services like eFax, mDirect, and so on, to enerprises, SMEs, individuals, etc.
B. The User intends to engage and utilize the cloud telephony services and/or other services of the Company for its business needs and the Company is desirous to provide the services, as required by the User, upon consideration.
C. Relying on the representations and covenants made and agreed by the User herein and believing the same to be true and correct, the Company wishes to provide the Services to the User, subject to the terms and conditions as set forth in this Agreement.
(The Company and the User shall hereinafter be collectively referred to as the “Parties” and individually as “Party”)
Now, therefore, in consideration of the foregoing and the mutual covenants and promises contained herein and other good and valuable consideration, the receipt and adequacy of which is hereby acknowledged, the parties agree as follows:
1.1 In this Agreement:
1.1.1 “Agreement” shall mean this agreement together with its schedules;
1.1.2 “TRAI” shall mean Telecom Regulatory Authority of India and “DOT” shall mean Department of Telecommunicaion, Govt of India.
2. Scope of Services:
2.1 The User may get the Services by either registering on the Company website www.Tocaso.com or directly approaching the Company and avail of the Services, or through reseller of Tocaso. This Agreement consists of the terms and conditions (hereinafter the “Terms” or “Terms of Service”).
2.2 The Services shall be utilized strictly for purposes, permitted by the concerned laws that prevail in the country, in accordance with the terms as provided herein below. Moreover, the user shall ensure not to transmit, using the Services, any material which violates or infringes in any way upon the rights of others, which is unlawful, threatening, abusive, defamatory, invasive of privacy or publicity rights, vulgar, obscene, profane or otherwise objectionable, which encourages conduct that would constitute a criminal offence, give right to civil liability or otherwise violate any applicable law. User cannot use Tocaso-subscribed number in any kind of marketing/promotional/spam SMS messages send to ‘Do Not Call’ registry numbers. If the user uses Tocaso number in promotional SMS messages and send to Do not call registry numbers, then, this kind of act on the part of the User will be a violation of Tocaso user agreement & TRAI guidelines. This leads to suspension of User’s Tocaso account. User is liable to pay all penalties and litigation fee applied to Tocaso by any concerned authorities because of the violation of Tocaso’ terms and Tocaso’ service-usage policy.
2.3 The Company reserves the right to update or modify the Terms of Service, as provided herein below, any time during the Term of this Agreement without any prior notice to the User and which may include adding or withdrawal of Service. The use of the Services after any such modifications shall constitute an agreement to use Services without any objections by the User.
2.4 The Company and its Services are governed by regulatory norms of TRAI, DOT and other authorities. Certain Services may be withdrawn by the Company in compliance with the law, without prior notice to the User.
2.5 The User shall be responsible to be in strict compliance with the rules and regulations of TRAI and DOT. Any violation will lead to immediate termination of Services without any claims, liability and protection in any manner, either to the User or to any third party.
2.6 User acknowledges and agrees to act responsibly at all times and ensure that Users availing of Virtual Receptionist services with respect to forwarding of calls shall ensure that the Virtual receptionist Services are used in a manner so that there is no unreasonable and excessive levels of usage, which may amount to network congestion and causing inconvenience to the large set of customers pursuant to Company’s Policy.
2.7 User acknowledges and agrees that call-forwarding in excess shall be a violation of policy and shall be deemed a breach of a material term hereof. Upon such violation, the Company shall contact the User to understand whether such violation of excessive and unreasonable usage was caused due to a system problem like virus infection or any such technical problem. Pursuant to the investigation, if it is found that such violation was not due to any virus infection or any such technical problem and the User continues to violate usage policy without giving any satisfactory reason and without increasing number of channels, the Company will suspend or terminate the User account immediately. Tocaso provides limited number of free incoming calls to subscriber in case of LEG A and number of free calls are equivalent to cost of plan subscribed by the user ,eg, in Rs 300 monthly plan, only 300 calls are free of charge and additional calls will be charged as per incoming call charges (LEG A is incoming call received by Tocaso server from caller and LEG B is call forwarded from Tocaso’ server to agents at the customer’s end).
2.8 User cannot use click-to-call service for marketing purpose and cannot call to Do Not Call registry numbers.
3.1 User agrees to use the Services only for the purpose of engaging IVR services, call forwarding, call recording and voice-mail services or sending and receiving fax or email messages or any material that is appropriate and, when applicable, related to the particular Service. The User shall use the Services for lawful purposes, and the usage of the services will be in compliance with applicable laws and regulations.
3.2 User shall not use the Services for purposes that is unlawful or prohibited by this Agreement or not complying with the policies of the Company. User may not use the Services in any manner that may damage, disable, overburden, or impair the Company Services, telephonic numbers and servers, or the network(s) connected to any Company server. Additionally, the User shall be responsible at all times to ensure that the Services shall not be utilized in any manner as detailed below:
3.2.1 in connection with conducting any surveys, contests, chain letters, junk email, spamming or any duplicative or unsolicited messages (commercial or otherwise);
3.2.2 advertise or offer to sell or buy any goods or services or use the Services for tele-marketing unless such Services specifically allows such messages;
3.2.3 use the Services to contact any persons registered on the “Do Not Disturb” list under the Telecom Commercial Communication User Preference Regulations, 2010 or any amendment including the 13th Amendment of TRAI;
3.2.4 to protect you from the TRAI 13th amendment, we request you to never publish a Tocaso number on any of your collateral, including, but not limited to, the Website, Google Adwords, visiting cards, fliers, any offline material, SMS blasts. Tocaso advises you to purchase a mobile-tollfree number from Mobile Service Provider if you don’t have one already. Set-up a divert on that number to forward all calls to your Tocaso Number. This steps will ensure that your customer-facing number is owned by you.
3.2.5 all Tocaso services subscription is minimum for one year. If user want to surrender the service before one year of subscription then the user will need to pay charges including service tax of the subscription of remaining months. User can surrender Tocaso service before one year if any issue arises with Tocaso service like non-working of Tocaso number or bad service by Tocaso. User needs to report any service issue to support@Tocaso.com for any service issue. Consequently, if Tocaso is unable to solve the issues escalated by the user in three working days, user has rights to surrender Tocaso service before one year. But for this, the user need to create support ticket though Tocaso online support ticketing system
3.2.6 User is forbidden to do the following:
defame, abuse, harass, stalk, threaten or otherwise violate the legal rights of others; publish, post, distribute or disseminate any inappropriate, profane, defamatory, obscene, indecent or unlawful topic, name, material or information through fax;
restrict or inhibit any other User from using and enjoying the Services;
maintain and create data by recording calls acquired through the use of Services and which is otherwise not permitted under applicable law;
create a false identity for the purpose of utilizing the Services and misleading others.
3.3 In the event the user is deemed to have utilized the Service for any unlawful use or in a manner as provided above, then the Company has the right to report to concerned authorities and immediately terminate use of the Services, without prior notice to the User. In the event any penalty is levied on the Company for unlawful usage of the Services by the User or for utilizing the Services in the manner detailed in this Clause 3 then, the User shall be liable to pay the penalty to the Company along with any claims made by any third party against the Company.
3.4 User acknowledges and agrees not to use the website or application or any Services offered by the Company in a manner that violates any local laws of India or any specific law regulating the Services including any commercial e-mail, facsimile transmissions or telephone solicitations.
4. Data Protection and Privacy
4.1 The Company shall have the right to maintain records and data acquired through the use of Services by the User, however, the Company shall at all times use its best efforts to maintain privacy of the User’s information and the data collected during the term of the use of Services and shall not disclose such information to the third party without prior consent of the User. Further, the Company shall at all times use its best efforts to maintain confidentiality with respect to such recorded calls and the data collected there from during the Term of the use of Services and shall not disclose any such information to the third party without prior consent of the User
4.2 The User understands that the Services of the Company may be compromised at any time during the term of this Agreement due to act of any third party, such as interception of calls and hacking of the Company servers, and which would be beyond the control of the Company and which may impact the privacy of the User. The User hereby understands and agree to waive all liabilities and claims against the Company arising from such events.
4.3 The User understands that the Company Website may contain links to websites that are owned and operated by third parties that are not affiliated with Company. When a User uses these links, the Company will have no ability to protect User’s interests. User agrees that the Company is responsible for and, unless it expressly states otherwise in writing, makes no warranty or representation regarding and does not endorse any linked website or any service, product or information provided on or through the linked website.
5. Representation and Warranties
5.1 The Company represents and warrants to the User that:
5.1.1 the company has been validly existing under the laws of India and eligible to provide the Services under this Agreement.
5.1.2 to the best knowledge of the Company, Services do not contain any program, or other internal component which could damage, destroy, or alter any data or other information accessed through or processed by the User in any manner.
5.2 The User hereby represents and warrants to the Company that:
5.2.1 the User has been validly existing under the laws of India and eligible to obtain Services under this Agreement.
5.2.2 upon executing, this Agreement shall form a valid binding obligation enforceable against the User.
5.2.3 it shall not utilize the Services in any manner except for the purposes specifically permitted under this Agreement or any prior agreement entered into with the Company or specific purposes detailed by the Company separately and such purposes shall automatically form part of this Agreement.
5.2.4 the User is in strict compliance with the rules and regulations of the TRAI and DOT upon executing this Agreement and shall continue to be responsible in compliance with the rules and regulations of the TRAI and DOT from time to time.
5.2.5 Tocaso accept payment only by cheque, NEFT, Credit, Debit card and Online banking. Tocaso do not accept cash payments in any circumstances. Tocaso will not adjust cash payment against invoices if user make cash payment. Cash payment will be returned by Tocaso to user directly in his/her bank account in five working days.
5.2.6 Tocaso , as a service provider, are bound by the regulations set forth by our telecom provider. There are some directives to all the telecom-related providers keeping in view of national security. We require below documents from individuals/companies using Tocaso services. You need to upload documents by logging in to your Tocaso account.
a) Address proof (any of the following) :- Passport, latest paid Telephone/Gas/Water /Electricity/ Credit card/House tax bills receipt, Allotment letter of accommodation issued by estate Office of a government body, Income tax return, Election card, Driving licence, Rent receipt/Rent lease agreement.
b) Documents required for identity proof (any of the following):Passport, Driving licence, Election card issued by Election Commission, PAN card. Any Government document containing photograph, identity card issued by Government/Semi Government/PSU/Recognized Institutions.
c) Signed copy of attached Tocaso subscription form sent to user by email or given in the last part of this agreement.
In our effort to comply with security issues, we shall be disconnecting the services of our clients, WITHOUT ANY NOTICE, if we do not receive the above-mentioned documents within 24 hours after payment is made by client. Tocaso service for the user will be activated only if the client sends scan copy of document by email to kyc@Tocaso.com and hard copy of signed notarized agreement and document , by registered post, to Tocaso office Address:
FIRST FLOOR, Plot No 3,
NEW DELHI – 110018.
User shall indemnify and keep the Company indemnified with respect of any actions, claims, costs, damages, demands, expenses, losses and liabilities made against, suffered and /or incurred by the Company arising directly or indirectly from or in connection with breach of obligations by as contained herein. The User agrees to defend and indemnify the Company and his/her/its officers and directors, employees, agents, and representatives from any and against all losses, claims, costs, liabilities, or expenses incurred, whether based in claims of tort or contract (including court costs and attorney fees) incurred or sustained due to related to or arising out of utilizing cloud telephony services including IVR services, call forwarding, call recording and voice-mail services or sending and receiving fax or email messages or any material that is appropriate and, when applicable, related to the Service, collection of data, usage of data, or breach of any of the terms hereof any negligence, or any fraud, violation of rules and regulations of the TRAI and DOT or breach of confidentiality, leading to a third party claim.
7.1 The Parties recognize and acknowledge that there may be made available to it Confidential Information relating to the other Party for fulfillment and rendering Services during the Term of this Agreement. The Parties will not, during or after the Term of this Agreement and for a period of 2 (two) years after the termination of this Agreement, disclose any Confidential Information to any person, firm, corporation, association or other entity for any reason or purpose whatsoever without the prior written consent of the other Party.
7.2 Confidential Information does not include information that (i) is known to the Parties at the time of disclosure to such Party by the other Party, (ii) has become publicly known and made generally available through no wrongful act of such Party or (iii) has been rightfully received by either Party from a third party who is authorized to make such disclosure.
8. Miscellaneous Provisions
8.1 Force Majeure: Neither Party shall be liable to the other for delays or failures in performance of Services resulting from causes beyond the reasonable control of that Party, including, but not limited to, acts of God, labour disputes or disturbances, material shortages or rationing, riots, acts of war, governmental regulations, communication or utility failures, or casualties.
8.2 Entire Agreement: This Agreement constitutes the entire agreement between the User and the Company and pertains to the subject matter hereof and supersedes in their entirety over all other written or oral agreements between the Parties.
8.3 Severability: If any provision of this Agreement is determined to be unenforceable for any reason, then the remaining provisions hereof shall remain unaffected and continue to operate in full force and effect.
8.4 User is an independent contractor. Nothing in this Agreement shall create any association, partnership, joint venture or agency relationship between the parties. User shall be solely responsible for the payment of any compensation due to its employees or representatives. User shall not and shall not attempt to incur any liability on behalf of Company and shall not hold itself out to any person as being able to do so.
8.5 The rights and obligations of User under this Agreement are personal. User shall not and shall not attempt to assign or otherwise deal with them without the prior written consent of Company. User shall not and shall not attempt to sub-contract its obligations under this Agreement without the prior written consent of the Company. Company may assign, sub-contract and deal with this Agreement in its discretion.
8.6 Governing Law: This Agreement shall be governed by and interpreted and construed in accordance with the laws of India, except with respect to choice of law principles. All disputes arising in connection with this Agreement shall be finally settled under the Arbitration & Conciliation Act of 1996 by one or more arbitrators appointed in accordance with such Act. The venue of the arbitration shall be New Delhi, India and the language of the arbitration shall be English. The parties hereto undertake to keep the arbitration proceedings and all information, pleadings, documents, evidence and all matters relating thereto confidential. Neither party shall be entitled to commence or maintain any action in a court of law upon any matter in dispute until such matter has been submitted and decided by arbitration as herein provided and then only for the enforcement of the arbitrator’s award; provided, however, that the parties hereto shall be permitted to seek temporary or preliminary equitable relief in a court prior to the initiation or resolution of any arbitration proceeding hereunder.
8.7 Notices and Payments: All notices and other communications required or permitted to be given under this Agreement shall be made in writing and shall be delivered by hand, recognized overnight courier service or facsimile. Notice shall be deemed given on (i) the date of delivery when delivered by personal delivery or overnight courier, or (ii) the date of transmission if sent by facsimile (or if transmission is after 6:00 PM in recipient’s time zone, then on the first business day thereafter), provided that a confirming copy is sent within two (2) business days by personal delivery, recognized overnight courier service or registered mail. All notices under this Agreement shall be sent to the Parties at the addresses set forth below or to such other addresses as either of the Parties shall designate by notice given in writing pursuant to this clause.
FIRST FLOOR, Plot No 3,
NEW DELHI – 110018.
September 11, 2014.