Terms and Conditions

End User Licence Agreement

1. DEFINED TERMS

2. LICENCE

2.1 Freshtel grants to you a royalty free, non-exclusive and non-transferable licence to use the Software for your own personal use on a single computer and/or workstation in accordance with these terms and conditions. By copying, installing, accessing or using the Software you will be deemed to have accepted and be bound by these terms and conditions.

2.2 Freshtel reserves the right to add additional functionality to the Software which will be deemed to form part of the Software. This licence will continue to apply in all respects to the Service and the updated Software.

2.3 This licence relates to the access and use of the Service and the Software on a royalty free basis. The use of any paid services associated with the Software may also attract additional terms and conditions.

2.4 You acknowledge that the Software may be supplied or used in conjunction with hardware, software and other services supplied by third parties. Freshtel shall not be liable for any loss or damage arising from the use of third party products or services which have not been supplied by Freshtel or which are outside of Freshtel’s control.

3. CONDITIONS OF USE

This licence only permits you to do the following:

3.1 install, access, display, run and otherwise use the Software on a single computer, terminal, work station, PC, smart phone or other digital device;

3.2 take a single copy of the Software for backup purposes only; and

3.3 access the Service via the Logon ID for your personal use only unless otherwise agreed in writing by Freshtel.

4. RESTRICTIONS ON USE

4.1 You must:

4.1.1 use this licence in good faith and in accordance with the laws of Australia;

4.1.2 ensure that the Software or part thereof is used only by you;

4.1.3 ensure that the Service is accessed only by you and is protected from any form of unauthorised use;

4.1.4 ensure that the Software is accessed via a secured network;

4.1.5 use your best endeavours to preserve the goodwill that subsists in the intellectual property rights of the Software;

4.1.6 comply with directions of any regulator and all reasonable directions of Freshtel;

4.1.7 follow any additional reasonable instructions from Freshtel in relation to the use of the Software; and

4.1.8 notify Freshtel immediately if you become aware of any potential or actual infringement of any intellectual property rights in relation to the Software.

4.2 You must not:

4.2.1 unless permitted by the Copyright Act 1968, alter, modify, reverse engineer, decompile, translate or adapt the Software in any way whatsoever;

4.2.2 rent, lease, licence, lend, resupply or onsupply the Software;

4.2.3 disclose your Logon ID to another person or permit another person to use your Logon ID to access the Service or the Software ;

4.2.4 sub-licence, assign or transfer this licence or the Software to any other person without Freshtel’s written permission;

4.2.5 permit any act which infringes Freshtel’s copyright in the Software other than in accordance with these terms and conditions;

4.2.6 make available the Software or part thereof, or access to the Service , to another person other than in accordance with these terms and conditions;

4.2.7 remove or alter any marking or information whatsoever which may be attached to or form part of the Software and which identifies Freshtel or its related entities as the owner of copyright in the Software;

4.2.8 communicate or reproduce the Software other than in accordance with these terms and conditions;

4.2.9 tamper, reverse engineer or modify or attempt to tamper, reverse engineer or modify the software; and

4.3 It is a specific condition of this Agreement that you will not use, or attempt to use, the Service or the Software;

4.3.1 to break any law or to infringe another person’s rights;

4.3.2 to expose Freshtel to liability;

4.3.3 to transmit, publish or communicate material which is defamatory, offensive, abusive, indecent, menacing or unwanted;

4.3.4 to block or hinder other people’s access to or ability to use the Service or any third party service; or

4.3.5 in any way which damages, interferes with or interrupts the Service, the Freshtel network or any other suppliers or third party network.

5. SPECIFIC REQUIREMENTS AND WARNINGS

5.1 You must ensure that your access to the Service is not illegal or prohibited by laws which apply to you.

5.2 You agree to take all precautions reasonably necessary to ensure that the process which you employ for accessing the Service or using the Software does not expose you to the risk of viruses, malicious computer code or other forms of interference which may damage your computer system.

5.3 You acknowledge that the Software will be installed on your computer and will require access to your computer and network connectivity for the sole purpose of communicating with other users of the Software and other telecommunication networks.

5.4 You acknowledge that the Software makes use of your internet connection to send and receive data as part of its normal operation. This data may contribute to the upload and download limits which may be imposed by your internet service provider.

5.5 You acknowledge that the Software, Service and Our Network is not intended to be used to make any emergency calls of any type, including but not excusive to, police, ambulance and fire brigade.

6. Freshtel’s INTELLECTUAL PROPERTY

You acknowledge and agree that:

6.1 Freshtel is the owner or licensee of all industrial and intellectual property rights which may subsist in the Software and the Service (including but not limited to text, graphics, logos, icons and sound recordings) and you do not gain any such rights simply because of this licence, by using the Software or Freshtel Phone or accessing the Service ;

6.2 you may not in any form or by any means adapt, reproduce, communicate, store, distribute, print, display, perform, publish or create derivative works from any part of the Software without Freshtel’s written permission or, in the case of third party material, from the owner of copyright in that material.

7. TRADEMARKS

7.1 Except where otherwise specified, any word or device to which is attached the Firefly or Voicedot symbol is a trade mark of Freshtel or its respective owner.

7.2 You are not permitted to use any of Freshtel ’ s trade marks other than if you:

7.2.1 use them in reference to Freshtel’s activities, products or services; and

7.2.2 include a statement attributing the trade mark to Freshtel.

7.3 You must not use any of Freshtel’s trade marks:

7.3.1 in or as the whole or part of your own trade mark;

7.3.2 in connection with activities, products or services which are not Freshtel’s;

7.3.3 in a manner which may be confusing, misleading or deceptive; or

7.3.4 in a manner that disparages Freshtel or any of its information, products or services (including but not limited to this licence, the Software, the Freshtel Phone and the Service).

8. CHANGES IN TERMS AND CONDITIONS & TERMINATION

8.1 Freshtel may at any time vary these terms and conditions by 2 Business Days notice, which will be deemed to have been effected by making the terms and conditions, as varied, available upon Freshtel’s website.

9. SECURITY OF INFORMATION

9.1 Freshtel does not guarantee or warrant the security of any data that is transmitted between Freshtel Users or via the Service, regardless of whether the data represents voice, text messages or any other form of communication.

10. EXCLUSION OF WARRANTIES AND LIABILITY

10.1 To the extent permitted by law, Freshtel hereby excludes any condition or warranty which would otherwise be implied into these terms and conditions.

10.2 Freshtel does not accept any responsibility for any interference or damage to your computer system which arises in connection with your use of the Software, Freshtel Phone or accessing the Service including, without limitation, any virus or other code that is contaminating or destructive by nature, and you are responsible for implementing and maintaining sufficient procedures to satisfy your particular requirements for accuracy of data input and output as well as protection from such viruses or other code that may contaminate or destroy your system or data.

10.3 Freshtel does not guarantee or warrant uninterrupted access to the Service or any particular level of quality of service in relation to (directly or indirectly) access to the Service or another Freshtel User.

10.4 Freshtel does not make any guarantee or warranty in relation to call access or termination of calls made using the Software or Freshtel Phone by a server, telephone service or otherwise which is not under the control of Freshtel.

10.5 Freshtel does not warrant, guarantee or take any responsibility for the accuracy, adequateness or completeness of any information which is made available via the Software, Freshtel Phone or Service and Freshtel does accept any responsibility for any loss suffered (directly or indirectly) as a result of reliance on any such information.

10.6 Where legislation implies any condition or warranty, and that legislation prohibits Freshtel from excluding or modifying the application of, or its liability under, any such condition or warranty, that condition or warranty will be deemed included in this licence.

10.7 To the extent permitted by law, Freshtel will not be liable to you for any consequential, indirect or economic loss or damage suffered by you and, without limitation, Freshtel’s liability in any event will be limited to one or more of the following:

10.7.1 if the breach relates to goods:

10.7.1.1 the replacement of the goods or the supply of equivalent goods, or

10.7.1.2 the repair of such goods, or

10.7.1.3 the payment of the cost of replacing the goods or of acquiring equivalent goods, or

10.7.1.4 the payment of the cost of having the goods repaired; and

10.7.2 if the breach relates to services:

10.7.2.1 the supplying of the services again, or

10.7.2.2 the payment of the cost of having the services supplied again.

10.8 Freshtel does not accept responsibility for any loss or damage however caused (including through negligence) which you may directly or indirectly suffer in connection with your use of the Software, the Freshtel Phone or access to the Service .

10.9 You agree that the entire risk arising out of (directly or indirectly) use or performance of the Software, the Freshtel Phone or access to the Service is with you.

10.10 The exclusion and limitation of warranties and liabilities set out in these terms and conditions does not attempt or purport to exclude liability arising under statute if, and to the extent that, such liability cannot be lawfully excluded.

10.11 You indemnify us from and against any damage, loss or cost including solicitor client costs and expenses incurred by us resulting from any breach by you of this agreement or through your use of the Software or our service.

11. TERM AND TERMINATION

11.1 This licence shall commence on the date of first use of the Software, and shall remain in force until terminated in accordance with this clause 11.

11.2 Freshtel may terminate any and all provisions of this licence and your use of the Software at any time and for any reason upon written notice.

11.3 If you receive written notice from Freshtel terminating this licence, you must stop using this licence immediately and delete the Software from your computer system if Freshtel asks you to do so.

11.4 You may terminate this licence at any time by removing and deleting all copies of the Software which are stored on your computer or other peripheral devices. Any licence and/or set up fees paid by you will not be refunded but will be utilised by Freshtel in administration involved in opening, maintaining and closing your account.

11.5 Any provision contained in this agreement which by its nature is meant to survive termination of the agreement will survive any such termination.

12. GOVERNING LAW

This contract and your use of the Software, Service and Freshtel Phone are exclusively governed by the laws in force in the State of Victoria, Australia irrespective of where you accept these terms and conditions or use the Software, Service or Freshtel Phone. You agree to submit to the exclusive jurisdiction of the courts of that jurisdiction.

13. GENERAL

13.1 Freshtel does not accept any liability for any failure to comply with these terms and conditions where such failure is due to circumstances beyond Freshtel’s reasonable control.

13.2 If Freshtel waives any of its rights under these terms and conditions on one occasion, this does not mean that those rights will automatically be waived on any other occasion.

13.3 If any of these terms and conditions is held to be invalid, unenforceable or illegal for any reason, the remaining terms and conditions shall nevertheless continue in full force.

13.4 Freshtel may amend this agreement at any time without providing notice to you. Your continued use of the Software or service shall be deemed to be your acceptance of any amendment. You agree to check our website periodically and review any amendment made by us.

14. CREDIT REPORTING AND INFORMATION

14.1 Giving information to a Credit Reporting Agency (Section 18E(8)© Privacy Act 1988)
Freshtel Pty Ltd has informed me that it may give certain personal information about me to a credit reporting agency.

14.2 Access to Commercial Credit Information (Section 18L(4) Privacy Act 1988)
I agree that Freshtel Pty Ltd may obtain information about me from a business which provides information about the commercial credit worthiness of persons for the purpose of assessing my/our application for consumer credit.

14.3 Access to Consumer Credit Information (Section 18K(1)(b), Privacy Act 1988)
I agree that Freshtel Pty Ltd may obtain a consumer credit report containing information about me from a credit reporting agency for the purpose of assessing my application for commercial credit.

14.4 Exchange of Credit Worthiness Information (Section 18N, Privacy Act 1988)
I agree that Freshtel Pty Ltd may exchange information with those credit providers named in this application or named in a consumer credit report issued by a credit reporting agency for the following purposes;

to assess an application by me for credit
to notify other credit providers of a default by me
to exchange information with other credit providers as to the status of this loan where I am in default with other credit providers
to assess my credit worthiness.
I understand that the information exchanged can include anything about my credit worthiness, credit standing, credit history or credit capacity that credit providers are allowed to exchange under the Privacy Act.

14.5 Agreement to a credit provider being given a consumer credit report by a credit reporting agency to assess a guarantor (Section 18K 1© Privacy Act 1988)
I agree the Freshtel Pty Ltd may obtain from a credit reporting agency a consumer credit report containing information about me for the purpose of assessing whether to accept me as a guarantor for credit applied for by, or provided to, the borrower(s). I agree that this agreement commences from the date of this agreement and continues until the credit covered by the borrower(s) application ceases.

14.6 Agreement to a credit provider disclosing a report including a consumer credit report to potential or existing guarantor (Section 18K (1) Privacy Act 1988)
I agree that Freshtel Pty Ltd may give to a person who is currently a guarantor, or whom I indicated is considering becoming a guarantor, a credit report containing information about me for the purpose of deciding whether to act as a guarantor or to keep an existing guarantor informed about the guarantee. I understand that the information disclosed can include anything about my credit worthiness, credit standing, credit history or credit capacity that credit providers are allowed to disclose under the Privacy Act, and includes a credit report.

14.7 Agreement that Freshtel Pty Ltd may seek consumer credit information (Section 18K(1)(b), Privacy Act 1988)
If Freshtel Pty Ltd considers it relevant to assessing my application for commercial credit, I agree to Freshtel Pty Ltd obtaining from a credit reporting agency a credit report containing personal credit information about me in relation to commercial credit provided by Freshtel Pty Ltd.

14.8 Exchanging information with other credit providers (Section 18N(1)(b), Privacy Act 1988)
I agree to Freshtel Pty Ltd obtaining personal information about me from other credit providers, whose names I may have provided for Freshtel Pty Ltd or that may be named in a credit report, for the purpose of assessing my application for commercial credit made to Freshtel Pty Ltd.

14.9 Agreement to a credit provider being given a consumer credit report to collect overdue payments on commercial credit (Section 18K 1(h) Privacy Act 1988)
I agree that Freshtel Pty Ltd may obtain a consumer credit report about me from a credit reporting agency for the purpose of collecting overdue payments relating to commercial credit owed by me.