Business Day means Monday to Friday excluding public holidays in Victoria, Australia.
Freshtel means Freshtel Pty Ltd ACN 101 908 472 of 422 Canterbury Road, Surrey Hills Victoria 3127, Australia.
Location Server means Freshtel's server and information database which locates and connects you to other Freshtel Users that are also registered on the Location Server.
Logon ID means a unique username, password and account designation issued by Freshtel to you which allows you to access the Location Server.
Freshtel User means any person or organisation who/which has a Login ID for use on the Location Server.
Software means the Internet telephone software and associated materials licensed (or sub-licensed) by Freshtel to you.
Freshtel Phone means a voice Internet telephone which may be purchased from Freshtel for use with the Software.
2. LICENCE
Freshtel grants to you a non-exclusive and non-transferable licence to use the Software 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.
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:
3.1.1 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 Location Server 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 Location Server 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 follow any additional reasonable instructions from Freshtel in relation to the use of the Software; and
4.1.7 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 may 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 Location Server;
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 Location Server, 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; or
4.2.8 communicate or reproduce the Software other than in accordance with these terms and conditions.
5. SPECIFIC REQUIREMENTS AND WARNINGS
5.1 You must ensure that your access to the Location Server 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 Location Server 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.
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 (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 Location Server;
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 Ö or « symbol is a trade mark of Freshtel or its respective owner.
7.2 You are not permitted to use any of FreshtelÆs trade marks other than if you:
7.2.1 use them in reference to Freshtel's activities, products or services;
7.2.2 you include a statement attributing the trade mark to Freshtel; and
7.2.3 you do not use any of Freshtel's trade marks:
7.2.3.1 in or as the whole or part of your own trade mark;
7.2.3.2 in connection with activities, products or services which are not Freshtel's;
7.2.3.3 in a manner which may be confusing, misleading or deceptive; or
7.2.3.4 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 Location Server).
8. CHANGES IN TERMS AND CONDITIONS & TERMINATION
8.1 Freshtel may at any time:
8.1.1 vary these terms and conditions by 5 Business Days notice, which will be deemed to have been effected by making the terms and conditions, as varied, available upon Freshtel's website; or
8.1.2 terminate:
8.1.2.1 any or all of the provisions of this licence; or
8.1.2.2 your access to the Location Server,
upon providing you with written notice.
8.2 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.
9. SECURITY OF INFORMATION
9.1 Freshtel does not guarantee or warrant the security of any data that is transmitted:
9.1.1 between Freshtel Users; or
9.1.2 via the Location Server,
regardless of wether 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 Location Server.
10.3 Freshtel does not guarantee or warrant uninterrupted access to the Location Server or any particular level of quality of service in relation to (directly or indirectly) access to the Location Server 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 Location Server 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 Location Server.
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 Location Server 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.
12. GOVERNING LAW
This contract and your use of the Software, Location Server 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, Location Server 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 are held to be invalid, unenforceable or illegal for any reason, the remaining terms and conditions shall nevertheless continue in full force.
