This Terms of Service forms a binding contract between you and Telemonk Technology Services Pvt. Ltd., a company incorporated under the provisions of the Companies Act, 2013, having CIN U93000MH2021PTC358636, having its registered office at A1 and B1, 9th Floor, B wing, Ashar IT Park, Wagle Estate, Road 16Z, Thane West, 400604. We have developed a technology and proprietary platform at www.telemonks.com (“Platform”). The Platform allows our customers to select the Campaign (defined below) available thereon and engage with us to avail business process outsourcing services.
About this Terms of Service.
This Terms of Service contains the legally binding terms under which you engage with us to avail our services, as per your requirement. Please read this Agreement carefully before you click on the ‘I ACCEPT’ button. When you click the ‘I ACCEPT’ button, you confirm that you have read, understood and accepted the terms and conditions of this Terms of Service. After you click the ‘I ACCEPT’ button, a one-time password (OTP) will be sent to your registered mobile number. Your submission of a valid OTP shall be considered as your acceptance of the terms and conditions of this Agreement. By availing our Services, you confirm that you have read, understood and accepted the provisions mentioned herein.
In this Agreement the following words will have the meanings specified against them.
- Agreement means this Service Agreement, its duly executed annexures, if any, and Campaign details selected hereunder, and includes any amendment of any of the foregoing documents.
- Business Day means a day on which banks are open for business in Mumbai, India.
- Campaign is a package of business process outsourcing services in a particular combination which is created and offered by Telemonks on its Platform.
- Confidential Information in the context of a Party, means all non-public information that is proprietary to the other Party, which may include information relating to the business affairs, products, developments, trade secrets, know-how, financial information, customers and suppliers of the other Party.
- Effective Date means the date first mentioned in this Agreement.
- Party refers to Telemonks and You individually and Parties refers to Telemonks and You collectively.
- Personnel mean such person who will provide Services to you and work on your Campaign. Telemonks works with such Personnel on non-exclusive basis to provide Services to you.
- Service Fee means the consideration for Services as described in this Agreement.
- Services means the Services as described in clause 2.1.
- SPOC means a single-point of contact, i.e., an authorized person identified by you in order to coordinate and manage routine operational relationships under this Agreement.
- You refer to you, as a user of our Services.
- We, us, our and Telemonks refer to Telemonk Technology Services Pvt. Ltd.
- Website refers to www.telemonks.com.
2. MANNER OF WORKING
- Services. Telemonks agrees to provide you the Services for the Campaign selected by you. By accepting this Terms of Service, you agree to avail the Services for such Campaign. The Campaign details selected by you and description of the services provided while selecting Campaigns is emailed to you at your registered email address that you must have entered into while registering with us. Services not expressly agreed between us and detailed in the invoice will be charged additionally. Telemonks reserves the right to reject Campaign and provide Services hereunder, at any time before the commencement of the Campaign. Thereafter, neither party can cancel the Campaign. Update on the Campaign and Services performed will be provide to you as and when requested.
- Delivery. Telemonks may deliver the Services by itself or in association with one or more of its affiliates. However, Telemonks will be responsible to ensure that the Services confirm to the Campaign selected by you. The parties will cooperate to complete the Scope of Services on time. You will supply information, and provide feedback as and when requested by Telemonks (no later than two days from the date of such request).
- Changes. The Parties may change the Campaign details and Services to be performed thereunder by written mutual understanding. Such change must only be any increase in the Services to be rendered by Telemonks which may result into payment of an additional Service Fees as communicated, in writing. Any reduction or cancellation in the Services will not result into reduction/ refund of the Service Fee payable/paid by you.
3. SERVICE FEE AND INVOICING
- Service Fee. You shall pay Service Fee and charges to Telemonks that are computed as per the Campaign details selected by you. Service Fees shall be paid in advance and will be subject to all indirect taxes, which shall be charged and payable additionally by you. Unless otherwise specified, Service Fee shall also exclude out-of-pocket expenses, payments to be made to any third-party experts, printing and stationery charges, and other costs not expressly covered and shall be paid in addition to the Service Fee. Pending payment of Service Fees, Telemonks will not commence the performance of Service for you. Service Fee is non-refundable. Service Fees are subject to review and change, if the Campaign is not started within agreed timeline or is extended beyond the agreed timeline for reasons not attributable to Telemonks. Telemonks will refund the Service Fee paid by you, in case Telemonks fails to start a Campaign even after you give Telemonks a 15 days cure period to commence its Services.
- Invoices. Telemonks will submit its invoices with you in advance. All payments shall be made in Indian Rupees in such manner as Telemonks may nominate from time to time, without any set-off, withholding or deduction except withholding tax as applicable by law. Any delay in payment of Service Fees will be subject to interest at the rate of 2% (two percent) per month, compounded annually. Details of the Service Fees and its computation will be mentioned in the Invoice which will shared with you on your registered email address that you must have entered into while registering with us.
- Disputed invoices. You may dispute an invoice in good faith within twenty-four (24) hours from the date of its submission, but not thereafter. In respect of a disputed invoice, you shall forthwith pay the undisputed amount of the invoice. The Parties shall cooperate to expediently resolve the dispute through the process prescribed in clause 13 hereof.
4. OBLIGATIONS OF THE PARTIES
- On receipt of the Service Fees, Telemonks shall:
(a) perform the Services with reasonable skill and care and as per good industry practices;
(b) assign competent and suitably qualified Personnel to perform the Services;
(c) meet the functions and performance criteria mutually agreed among the Parties; and
(d) provide the Services in compliance with all the applicable laws.
- You shall provide such information, training, and access to your infrastructure to Telemonks as may reasonably be required by it for the purposes of providing the Services hereunder. It may include the following:
(a) share necessary information & tools in such form as required by Telemonks;
(b) ensure that the Campaign details and Services to be performed are clear and complete scope of Services is provided to Telemonks;
(c) share the training and process documents with Telemonks;
(d) confirm the Personnel selected by Telemonks to assign performance of Services for the Campaign;
(e) train the first two batches on product knowledge to ensure seamless transfer of knowledge;
(f) provider the Dialler, the CRM and the data (non-DND numbers only) for provision of Services;
(g) provide prompt feedback to Telemonks on such aspects are referred by it from time to time;
(h) provide material as may reasonably be required by Telemonks in the performance of the Services.
Telemonks shall have the right, but not the obligation, to review such information for accuracy and completeness. In case of non-receipt/ partial receipt of any of the above-mentioned information, as may be request by Telemonks, you understand that the performance of our Services may be restricted. In such Telemonks shall continue to perform the Services in absence of such information, with no liability attached to Telemonks.
- You will provide a one-time product training for to such Personnel at your own costs, including costs of travel incurred by the Personnel in attending such training. You authorise us to train further Personnel and will extend the necessary cooperation for this purpose. You understand that the Personnel working on your Campaign and rendering Services on behalf of Telemonks may not be full time/ part time employees of Telemonks and may be engaged by Telemonks on principal-to-principal basis.
- You will confirm the Personnel to perform Services for your Campaign. Any such Personnel confirmed and selected by you for your Campaign will not be replaced, unless in case of any breach committed by such Personnel. In exceptional cases, Telemonks may replace such Personnel due to medical/ emergency or unforeseen events which incapacitate the Personnel to perform Services for your Campaign. In such case, at your written request, Telemonks will look into the facts of the breach committed by Personnel and if proved correct, will provide an appropriate replacement to you.
- You may change the duties or tasks to be carried out by the Personnel only with our consent and on mutually accepted revisions in commercial terms.
- Telemonks will adhere to the standards of quality of service agreed in writing. You may monitor the quality of calls made by the Personnel to your customers. You may flag any deviations from the agreed quality standards of Service in writing with the supporting material. On being so informed, Telemonks will ensure that the standard of quality of service is restored promptly from the receipt of the relevant information.
- Each Party shall be responsible for compliance with applicable laws, arising out of the obligations under this Terms of Service.
- The Parties shall cooperate with each other in all matters relating to the Services. You will appoint a SPOC who shall be the first line of interaction for Telemonks for any matter relating to this Agreement.
5. TELEMONKS RESPONSIBILITIES
- Telemonks will be responsible for:
(a) Ensuring adequate infrastructure in place to perform the Services;
(b) Providing and maintaining connection between its equipment and the application;
(c) Managing and resolving issues directly with telecom operators and third-party service providers for maintaining abovementioned connections if and as applicable;
(d) Providing adequate and dedicated Personnel who will work on your Campaigns.
- Telemonks will supervise, control and maintain efficient and effective discipline over any and all Personnel performing their obligations under this Agreement and shall have the exclusive, sole right to impose disciplinary action over erring Personnel;
6. CODE OF CONDUCT
- Telemonks will ensure at all times that the Personnel put in their best efforts and work diligently to promote your business interest by rendering the services as per the terms and conditions of the contract.
- Telemonks will ensure that the Personnel always act with due diligence and care.
- ln the event of any sufficiently proven misconduct by any Personnel which may adversely affect your goodwill, the Telemonks may take appropriate action against the concerned Personnel.
- Telemonks shall ensure that the Personnel adhere to the following rules of conduct.
(a) Personnel will not make personal calls or otherwise misuse the data provided by you;
(b) Personnel will not give any wrong or misleading information to your customers which can adversely affect your business interests;
(c) Personnel will not disconnect the calls deliberately;
(d) Personnel will not give any wrong commitment on your behalf to Customers;
(e) Personnel will not misuse the power or authority given to them for personal gains.
7. REPRESENTATIONS & WARRANTIES
- Telemonks warrants and represents to you that:
(a) it has full power and authority to enter into this Agreement and perform the Services;
(b) it has necessary infrastructure to duly perform the Services under this Agreement;
(c) it shall render the Services and perform its obligations under this Agreement accurately and in accordance with detailed provided by you, in writing;
(d) it has obtained all necessary regulatory approvals for performance of the Services and shall keep them in force till the subsistence of this Agreement;
(e) the Personnel assigned to perform Services under this Agreement will have the proper skill and training and will perform the Services in a competent, workmanlike and professional manner.
(f) no consent, approval, or withholding of objection is required from any governmental authority with respect to the entering into or the performance of this Agreement;
(g) there are no actions, suits or proceedings, pending or threatened, which will have a material adverse effect on the Telemonks’ ability to fulfil its obligations under this Agreement.
- Each Party represents and warrants to the other that:
(a) all information contained or referred to in this Agreement or which has otherwise been disclosed by a Party to the other Party, is true and accurate and that neither Party is aware of any fact or matter, which renders any such information misleading;
(b) the Parties have disclosed all information, which is, or may be of reasonable relevance to the other Party’s interest and willingness to enter into this Agreement including but not limited to providing of the Services on the terms hereof;
(c) it has full power, capacity and authority to execute, deliver and perform this Agreement and it has taken all necessary action (corporate, statutory or otherwise), to execute, deliver, perform and authorize the execution, delivery and performance of this Agreement;
(d) this Agreement constitutes a valid and binding agreement of such party, enforceable in accordance with its terms;
(e) neither the execution of this Agreement, nor compliance with its terms will be in conflict with or result in the breach of or constitute a default or require any consent under: (i) any provision of any agreement or other instrument to which such Party is bound; (ii) any judgment, injunction, order, decree or award which is binding upon such Party; and (iii) such Party’s memorandum or articles of association;
(f) the consents, permissions and/or licenses as may be necessary and if required for performing its obligations under this Agreement will be duly obtained and maintained; and
(g) the use of the Service will not violate or be in breach of any applicable law, code, rules, regulations, order of any court, tribunal, authority or any agreement or any other instrument to which it is a party.
8. INTELLECTUAL PROPERTY RIGHTS
No license or transfer of intellectual property rights of a Party to the other Party or to a third-party is intended by this Agreement. Each Party shall continue to have exclusive ownership of the intellectual property owned, created, developed and discovered by it under this Agreement.
9. MUTUAL RESTRICTIONS
- Confidentiality Each Party shall hold in confidence all Confidential Information received from the other Party and shall not disclose the same to any third-party or use such information for any purpose other than in furtherance of this Agreement without the prior written consent of the disclosing Party. This obligation shall survive for the term of this Agreement and for a period of one (1) year thereafter.
- Non-solicit. Neither Party shall, during the term of this Agreement and for a period of two (2) years thereafter, solicit or attempt to solicit, directly or indirectly, an employee of the other Party or induce or attempt to induce such employee to terminate their association with the other Party.
- Anti-bribery: A Party shall not, in connection with its obligations under this Agreement, give, offer, authorize, endorse or promise to do any of the foregoing, by itself or indirectly, anything of value (including but not limited to money, valuable security, goods, services, or entertainment) to the officers of the other Party or to government officers with an intent to influence any official decision (including a commission or an omission) by such officer or to induce such officer to act in violation of their lawful duty, irrespective of whether the action that is forbidden as above results into a tangible advantage to such first-mentioned Party.
- The Parties agree that the restrictions stated in this clause 9 are reasonable as to their scope, extent and application. In case of a breach of any of the foregoing restrictions by a Party, damages in money alone shall not be an adequate remedy for the other Party; such other Party shall be entitled to injunctive relief in addition to any other remedy that it is entitled to under the law.
10. DATA PROTECTION
- The Parties shall:
(a) comply with the provisions of the law as it applies to the telemarketing industry, including the orders, directions, and regulations issued by the Telecom Regulatory Authority of India and by the Department of Telecommunications.
(b) comply with the legislation and regulations relating to the protection of personal data and processing, storage, usage, collection and/or application of personal data or privacy of an individual as may be applicable to the sphere of their operations in the rendering or receiving of the Services.
(c) preserve the documents and data that pertain to or are connected with this Agreement in the manner and to the extent required by any law.
(d) ensure that they put in place and the necessary internal controls to protect and use such data in accordance with applicable law. and
(e) exercise skill, care and diligence, practices, methods, procedures and timeliness concerning data privacy as would be reasonably expected from companies in their industry.
11. TERM, TERMINATION AND EFFECT OF TERMINATION
- Term. This Agreement shall commence from the Effective Date and shall continue till the completion of the Services, unless terminated earlier in accordance with the provisions of this Agreement.
- Termination without cause. A Party may terminate this Agreement without cause and without the need to specify cause, by a 15-day written notice to the other Party.
- Termination for cause by you. You may terminate this Agreement if Telemonks has breached a provision of this Agreement and has not cured such breach within fifteen (15) days from the receipt of your written notice asking it to do so.
- Termination for cause by Telemonks. Telemonks may terminate this Agreement if you have breached a provision of this Agreement and has not cured such breach within fifteen (15) days from the receipt of a written notice from Telemonks asking you to do so including but not limited to non-payment of Service Fee.
- Automatic termination. This Agreement shall automatically terminate on the day immediately preceding the day on which any of the following events occur:
(a) A Party makes an assignment for the benefit of its creditors.
(b) A Party goes into liquidation, or a winding up order is made against it, or it suffers the appointment of a receiver, trustee or similar officer for the whole or part of its business or assets, or it files a petition seeking reorganization, composition or a similar relief, or it takes any action for initiating a insolvency process against itself under any law.
- Effect of termination. On the expiration or termination of this Agreement:
(a) All the invoices of Telemonks shall become immediately due and payable
(b) Each Party shall deliver to the other Party all Confidential Information in its possession
(c) All the provisions of this Agreement that, by their nature, survive such termination shall remain in full force and effect. and
(d) The established antecedent rights and obligations of each Party shall remain unaffected.
12. INDEMNITY AND LIMITATION OF LIABILITY
- The details of the potential customers to be called will be provided by you. Therefore, for any complaint/s arising out of calling DND customer/s, you shall be responsible to produce the consent to call such customer/s, if such consent is approved by TRAI. You indemnify Telemonks along with its affiliates and the Personnel for the commercial and legal implications arising out of such complaints from customers.
- Each Party shall indemnify, defend and hold harmless the other Party, its affiliates, officers, directors and employees from and against any losses, damages, liabilities, interests, fines, penalties and expenses, including reasonable legal fees, that arise out of or result from any failure of the indemnifying Party to perform its obligations under this Agreement. This provision will survive the expiry or the earlier termination of this Agreement.
- UNDER NO CIRCUMSTANCES SHALL A PARTY BE LIABLE FOR ANY SPECIAL, INDIRECT, INCIDENTAL, EXEMPLARY, SPECIAL OR CONSEQUENTIAL LOSS OR DAMAGES, INTER ALIA INCLUDING, LOSS OF PROFIT, LOSS OF USE, LOSS OF REVENUES OR DAMAGES TO BUSINESS OR REPUTATION ARISING FROM THE PERFORMANCE OR NON-PERFORMANCE OF ANY ASPECT OF THIS AGREEMENT, EVEN IF SUCH PARTY HAS BEEN ADVISED OF THE POSSIBILITY OF SUCH DAMAGES.
- Notwithstanding anything to the contrary, the liability of Telemonks under this Agreement shall be limited to the amount of the Service Fee payable by you to Telemonks hereunder as on the date of invocation such indemnification.
13. DISPUTE RESOLUTION
- All disputes, differences of opinion and controversies arising between the Parties out of this Agreement shall be resolved amicably through mediation and discussions. In case a resolution of a dispute cannot be arrived at within a period of thirty (30) days from its first communication, such a dispute may be referred to arbitration as below.
- In case of a reference to arbitration, an arbitrator shall be appointed by the Parties as follows:
(a) The Parties shall appoint a sole arbitrator within fifteen (15) days from the invocation of arbitration. The cost of such sole arbitrator will be borne equally by the parties.
(b) In case the Parties are unable to agree on the appointment of an arbitrator till the end of the abovementioned fifteen-day period, then each Party shall appoint one arbitrator within the next seven (7) days. Each party shall bear the cost of the arbitrator nominated by it. The two arbitrators so selected shall mutually appoint a third arbitrator within a period of further seven (7) days; such third arbitrator shall be the presiding arbitrator of the tribunal so constituted. The cost of such third arbitrator will be borne equally by the parties.
(c) In case a Party is unable to nominate an arbitrator or if the two nominated arbitrators are unable to select a presiding arbitrator as provided in sub-clause (b) above, then a Party may apply to the Hon’ble Bombay High Court for appointment of a sole arbitrator as per the provisions of the Arbitration and Conciliation Act, 1996 (as may be in force).
- The arbitration proceedings shall be conducted in English at Mumbai, under the provisions of the Arbitration and Conciliation Act, 1996 (as may be in force).The arbitral award shall be rendered in the English language. The arbitral award shall provide that the cost of the arbitration process shall be recoverable by the prevailing party.
- Nothing in this Agreement shall preclude a Party from pursuing injunctive relief and restraining orders relating to such Party’s proprietary rights from the competent courts.
14. OTHER UNDERSTANDINGS
- Non-exclusive arrangement. The arrangement among the Parties hereunder is non-exclusive and each Party shall be free to enter into similar agreements and arrangements with any third-party on such terms as it may deem fit.
- Nature of relationship: Telemonks’ relationship with you is that of an independent service provider. Nothing in this Agreement is to be construed to make either party a partner, an agent or legal representative of the other for any purpose or to create a joint partnership, agency, joint venture, or employer-employee relationship among them. Neither Party has any right or authority to accept any service of process or to receive any notices on behalf of the other Party or to enter into any commitments, undertakings, or agreements to obligate such other Party in any way, or to amend or vary any existing agreements to which such other Party may be a Party.
- Force Majeure: Neither Party shall be liable for any delay or failure in performing any of its obligations hereunder, if such delay or failure results from force majeure conditions such as floods, earthquakes or other acts of God, or any acts of governmental body or public enemy, wars, riots, embargoes, pandemic, epidemics, fires, national or local lockdown or any other causes, circumstances or contingencies which are beyond the control of such Party. However, the Party to affected shall, upon giving prompt notice to other Party, be excused from such performance to the extent of such prevention, restriction or interference for the period that it persists; provided that the party so affected shall use its best efforts to avoid or remove such causes of non-performance, if possible, and shall continue performance hereunder with the utmost diligence whenever such causes are removed.
- Publicity: Each Party may use the name and the logo of the other Party to identify such other Party as its service provider or client, as the case may be. Such use shall only be limited to publicity materials and website of a Party.
- Waiver: Failure of either Party at any time to require performance of any provision of this Agreement shall not affect the right to require full performance thereof at any time thereafter, and the waiver by a Party of a breach of any provision shall not be taken to be a waiver of any subsequent breach thereof or as nullifying the effectiveness of such provision.
- Amendment: This Agreement shall not be amended, altered or modified, or any provision herein shall not be waived except by an instrument in writing expressly referring to this Agreement and signed by the representatives of both Parties. No conduct of a party will be considered as consent.
- Entire Agreement This Agreement constitutes the entire and exclusive understanding between the Parties and supersedes all previous communications, understandings or agreements, either oral or written, between the Parties with respect to the subject matter hereof.
- Severability If any part or provision of this Agreement is held illegal or unenforceable, the validity or enforceability of the remainder of this Agreement shall not be affected if such part, term of provision is severable from the rest of this Agreement without altering the essence of this Agreement. If such part, term or provision is not so severable, then the whole of this Agreement shall stand terminated, unless the Parties thereupon negotiate in good faith in order to agree to the terms of a mutually satisfactory provision, achieving as nearly as possible the same commercial effect, to be substituted for the provision so found to be invalid, illegal or unenforceable.
- Headings: The headings and paragraphs contained in this Agreement are for general reference and guidance and shall not be conclusive as to the meaning or the interpretation of this Agreement.
- No Assignment: This Agreement shall inure to the benefit and be binding upon your respective successors and permitted assigns. Telemonks may assign this Agreement in whole or in part without prior intimation to you.
- Counterparts: This Agreement may be executed in multiple counterparts, each of which shall be deemed an original, and each of which shall constitute one and the same instrument.
- Governing law and Jurisdiction. This Agreement and the performance of transactions under this Agreement will be governed by the laws of India and courts at Mumbai shall have exclusive jurisdiction to decide on all matter arising from or connected with this Agreement.
- Notice: Any notice or other information required or authorized by this Agreement to be given by either Party to the other may be given by (a) hand delivery, or (b) sent by Registered Post A.D., or (c) by email to the other Party. A Party may effectuate a change of its abovementioned communication address by a notice to that effect to the other Party.