User Data Privacy
Many services that deal with user data at the moment are gratis, but that does not mean they are free (as in freedom). Instead of paying with money, users are paying with their allegiance to the service providers so that they can exploit user data (e.g. by selling them, licensing them or building a profile for advertisers).
Surrendering privacy and other rights in this way may seem to many people a trivial thing and a small price to pay for the sake of convenience that these Internet services bring.
Service providers have thus been unwittingly compelled to turn their valuable Internet services into massive and centralised surveillance systems, It is of grave importance that people understand and realise this, since it forms a serious threat to the freedom of humanity and to the privacy of each individual.
Terms & Conditions
1. GOODS AND SERVICES
1.1 Agreement: All Goods and Services will be supplied by MCSLTD upon the specific terms applicable to those Goods or Services (specific service terms) and these General Terms (together the Agreement).
1.2 Conflict: If there is any conflict between these General Terms and the specific service terms, the specific service terms will prevail.
1.3 Service confirmation: MCSLTD will accept the Client’s order or service request, via email or other written confirmation detailing the Services to be supplied and the commencement date. The Client is deemed to have accepted, and be bound by, the Agreement from the commencement date.
1.4 Fixed term arrangements: If the Goods or Services are to be provided for a fixed term, then, upon the expiry of the term, Goods and Services will continue to be provided on a monthly basis at the fee applying during the fixed term. Clause 7.1 will apply in regard to termination.
1.5 Commencement of Services: MCSLTD will use its reasonable endeavours to commence the Services on the commencement date, provided that MCSLTD will not be liable for any delay in doing so resulting from any act or omission of the Client or any other person, including any failure by the Client or any other person to supply information, inputs, hardware, software or other systems necessary to commence the Services.
1.6 Variations: If the Client wishes to change the Services, MCSLTD will provide a further written confirmation pursuant to Clause 1.3, which will supersede any previous written confirmation.
1.7 Service level: Where applicable, MCSLTD will use its reasonable endeavours to supply the Services to the applicable service level specified in the specific service terms.
2.1 Payment: The Client will pay (in the invoiced currency) all applicable fees and charges (without deduction or set off) in the manner specified in the specific service terms, or if no payment method is specified, then as follows:
(a) for Goods or Services to which a monthly fee applies, the fee must be paid in advance before the first day of the month for which it applies. If Services commence intra month, the fees for that month will be added to the fees payable for the following calendar month; and
(b) for Goods or Services to which a one off fee applies, including fees payable for support and other services that are not included in any set charges, payment must be made within 20 days after supply, unless MCSLTD requires otherwise.
2.2 Credit card payments: Payment by credit card is not currently available. Direct credit via Internet banking or other facility is encouraged.
2.3 Cheque payments: If the Client’s cheque is returned by the bank as unredeemable, the Client will be deemed to be in default of its payment obligations and liable for a returned cheque charge of $25.
2.4 GST/taxes: The Client will pay goods and services tax (GST) and all other applicable duties and taxes. MCSLTD will advise the Client of the GST payable on its invoices.
2.5 Variations: MCSLTD may change its charges and fees, or any pricing structure, at any time upon written notice to the Client, provided that such change will not take effect until one month after MCSLTD gives notice. If the Client does not accept the change, it may terminate the Agreement pursuant to Clause 7.1.
2.6 Interest: Accounts in default are subject to a late payment charge of $25, and interest at a rate of 2% above MCSLTD’s bank’s commercial overdraft rate, from the date payment was due to the date MCSLTD receives payment in cleared funds.
2.7 Withholding payment: The Client shall not withhold or set off any amount payable to MCSLTD.
2.8 Third party charges: Unless MCSLTD agrees otherwise in writing, the Client must pay all fees and other charges of those third parties engaged by the Client or MCSLTD in relation to the performance of the Services, including services relating to the installation of computers, internet or any equipment.
2.9 Enforcement costs: The Client is liable for all costs and expenses (including all legal costs and expenses incurred on a solicitor/client basis) incurred by MCSLTD in the enforcement of any of its rights under the Agreement.
2.10 Deposit: MCSLTD may require the Client to pay a deposit of an amount specified by MCSLTD before providing any Goods. MCSLTD may keep all or any of the deposit as compensation for any costs, losses or liability suffered or incurred by MCSLTD due to cancelation of the relevant Order by the Client. MCSLTD will apply the deposit to the Goods to be purchased by the Client from MCSLTD under the Agreement.
2.11 Refunds: If the Client terminates this Agreement, it may claim a refund of any overpayment or of any pre-paid fees which are unused as at the date of termination. Any claim for a refund must be received by MCSLTD within one (1) month from the date of termination of Services. No refunds will be given for claims received outside of this period. It is the Client’s responsibility to ensure that any direct credit instructions are terminated at the time its Services are terminated. Refunds for overpayment (where this Agreement has not been terminated) will be paid as credit notes against future invoices.
3.1 Ownership: The Client shall at all times retain ownership of the Client Information and MCSLTD shall at all times retain ownership of the MCSLTD Information, including for the avoidance of doubt, MCSLTD’s Intellectual Property.
3.2 Client Representation: The Client represents and warrants that it has the necessary rights to the Client Information and any data, software, programmes or services that it uses from time to time in connection with its access to or use of Goods or Services supplied by MCSLTD.
3.3 Use: Subject to Clause 10.4, the Client and MCSLTD may only use each other’s Confidential Information in relation to the use, provision and performance of the Goods and Services. Each party must use their best endeavours to keep the other party’s Confidential Information secure and at all times confidential.
(a) No party shall disclose any of the other party’s Confidential Information to any person, and must also ensure their employees, agents, and contractors do not disclose such information, except as required for the proper use and performance of the Goods and Services, and then on a confidential basis.
(b) The parties will immediately inform the other if they become aware or suspect there has or could be an unauthorised disclosure of Confidential Information, or they are required by law to disclose it.
3.5 Expiry/termination: Upon the expiry or termination of the Agreement, the parties will either return or destroy each other’s Confidential Information (at the option of the owner) and all copies of it, other than information to be retained for audit or regulatory purposes.
3.6 Publication of information:
(a) The Client is responsible for all information and material transmitted, distributed or accessed by them.
(b) MCSLTD does not check, monitor or vet any information transmitted, distributed or made available through the servers and networks provided or access as part of the Services. The Client engages in these activities at its own risk.
4.1 Provision of Services: MCSLTD shall not be liable for any interruption or delay in the provision of any Goods or Services as a consequence of:
(a) any act or omission of MCSLTD or any third party, including any of MCSLTD’s employees, contractors or agents, any internet service provider or any other utility provider (such as power and telephone companies); or
(b) any cause reasonably beyond MCSLTD’s control (Force Majeure) including without limitation fire, earthquake, volcanic eruption, tornado, lightening, flood, storm, any other act of God, burglary or vandalism.
4.2 Limitation on liability:
(a) MCSLTD shall not be liable to the Client, whether in contract, tort (including negligence) or otherwise, for loss of profits, business, revenue, goodwill, opportunity, loss of data or any other form of indirect or consequential loss or damage.
(b) To the maximum extent permitted by law, MCSLTD’s total liability under the Agreement whether in contract, tort (including negligence) or otherwise, is limited to an amount equal to the total fees and charges paid or payable for the applicable Goods or Service giving rise to such liability, in the first 3 month period of the Agreement.
4.3 Implied warranties:
(a) The Client acknowledges that where the Goods or Services are being provided for business purposes or in trade, the provisions of the Consumer Guarantees Act 1993 are expressly excluded.
(b) All terms, conditions, guarantees or warranties (including implied warranties as to merchantable quality and fitness for purpose), which may be implied into the Agreement are excluded to the maximum extent permitted by law. If legislation implies any such term, condition, guarantee or warranty into the Agreement, and such legislation does not permit the exclusion or modification of it, MCSLTD’s liability for any breach is limited, to the maximum extent permitted by law, and at its option, to:
(i) replacing the Goods or paying another person acceptable to MCSLTD to provide similar Goods; or
(ii) repairing the Goods;
(iii) re-performing the Services; or
(iv) paying another person acceptable to MCSLTD to re-perform the Services.
5.1 The Client indemnifies and holds MCSLTD harmless, to the fullest extent permitted by law, against all costs, expenses (including all legal costs and expenses on a solicitor/own client basis and Taxes), losses and other liability sustained or incurred by MCSLTD, and against any claims made or proceedings brought against MCSLTD as a result of:
(a) a breach of these General Terms, any specific service terms or any software license by the Client, or any of the Client’s employees, agents, contractors, Clients, clients, or any other person for whom the Client is responsible; or
(b) any security breach, attack or error caused or made by the Client or its employees, agents, contractors, Clients, clients, or any other person for whom the Client is responsible; or
(c) any other act or omission by the Client, or by any of the Client’s employees, agents, contractors, Clients or clients, or any other person for whom the Client is responsible, including any breach or violation of any law; or
(d) any fault or failure of, or damage to, any of the Client’s property located at MCSLTD’s premises.
The Client shall pay to MCSLTD upon demand, the amount (including all legal costs and expenses on a solicitor/own client basis) which MCSLTD certifies as being required to compensate MCSLTD for the cost, loss, expense or liability it has incurred.
MCSLTD may from time to time, without notice, suspend a Service:
(a) if the Client fails to comply with any provision of the Agreement or any software licence, including any failure to pay any charge or other amount payable to MCSLTD within 10 Business Days after the due date for payment, until the breach or failure is remedied to MCSLTD’s satisfaction. The Client shall continue to pay all charges and other amounts payable for the Goods and Services during the period of suspension; or
(b) if MCSLTD believes suspension is necessary to preserve or protect any person or property, including the information or property of another Client; or
(c) suspension is required by law.
6.2 Notice: MCSLTD will endeavour to give the Client at least five Business Days prior notice by email if it intends suspending the Goods or Services due to charges or other amounts being overdue.
7.1 Notice: Unless the Goods and Services are to be provided for a fixed term, the Agreement may be terminated by either the Client or MCSLTD giving the other at least one calendar month’s prior written notice.
7.2 Termination forbreach: MCSLTD may terminate the Agreement immediately upon written notice to the Client if:
(a) the Client fails to pay any amount owing to MCSLTD on the due date for payment; or
(b) the Client breaches any provision of the Agreement or any software license, and in MCSLTD’s opinion such breach is not capable of remedy, or if in MCSLTD’s opinion it is capable of remedy, the Client fails to remedy the breach within seven Business Days after receiving written notice of the breach from MCSLTD; or
(c) MCSLTD is instructed to do so by any law enforcement or government agency; or
(d) the Client ceases or threatens to cease to conduct its business, or disposes of, or threatens, or agrees to dispose of, all or a substantial part its assets; or
(e) A receiver, administrator or similar official is appointed in respect of the Client or its assets; or
(f) the Client is unable to pay its debts as they fall due or is deemed to be so under any law; or
(g) the Client stops or suspends payment of any of its indebtedness or threatens to do so, or begins negotiations or takes proceedings to reschedule any of its indebtedness; or
(h) MCSLTD is unable to provide the Services for a period exceeding one week due to a Force Majeure; or
(i) any other event occurs which, in MCSLTD’s opinion, may have a material adverse effect on the Client’s ability or willingness to comply with the Agreement.
8. CONSEQUENCES OF TERMINATION
8.1 Consequences of termination: Upon termination pursuant to Clause 7, the Client will:
(a) immediately pay to MCSLTD all outstanding amounts, and all other amounts payable by the Client under the Agreement, including interest and MCSLTD’s enforcement costs and expenses (including legal costs and expenses on a solicitor/own client basis);
(b) where Goods or Services were to be supplied to the Client for a specified period, the Client will immediately pay to MCSLTD all amounts that would have been payable by the Client up to the expiry of that period; and
(c) immediately return to MCSLTD, all of MCSLTD’s equipment, property and all MCSLTD Information.
8.2 Return of Client property: If applicable, and if requested by the Client, MCSLTD will return all the Client’s property, equipment and Client Information in MCSLTD’s possession or control to the Client.
9. FAIR USE POLICY
9.1 The use of MCSLTD’s Hosted Products is governed by a Fair Use Policy, stated here, which covers the fair use of resources on MCSLTD internet access, where there is an indication of ‘unlimited’.
9.2 Bandwidth (data transfer): MCSLTD provides ‘unlimited’ data transfer for Hosted Products which offer generous fair use data transfer. Data transfer covers bandwidth both Nationally and International data per month. This ‘unlimited’ bandwidth provides Clients with data transfer per month as they wish to use without any additional charge.
9.3 Should MCSLTD deem a Client’s account as exceeding fair use bandwidth consumption, MCSLTD will notify the Client and allow the Client to remedy the problem. However, should a Client’s bandwidth usage be significantly greater than fair use, MCSLTD reserves the right to suspend the Client’s account where appropriate.
9.4 MCSLTD will discuss available options that could provide better service for the Client.
10.1 Variation: MCSLTD may change, amend or replace these General Terms at any time, provided that such changed, amended or new General Terms will not take effect until one month after MCSLTD gives the Client written notice of it.
10.2 Survival: Thecancelling of any Agreement between MCSLTD and the Client does not affect any rights and responsibilities, which are intended to continue or come into force afterwards. Clauses 2.1, 2.5, 2.8, 3, 4, 5 and 10.4 survive the termination or expiry of the Agreement.
10.3 Notices: Each party will give any required notice to the other party at the physical or email address last known to the party giving notice. Each notice will be deemed to be effective if, delivered by hand, immediately, if delivered by post, 3 days after it was posted, and if sent by email, when successfully sent from the sender’s email.
10.4 Privacy/use of information: Notwithstanding Clause 3, MCSLTD may collect and disclose personal and credit information about the Client (including the Client’s account information and information about any Client defaults) to debt collection agencies, credit reporting agencies, MCSLTD’s lawyers and accountants, and to any person with which MCSLTD does business, for the following purposes:
(a) if MCSLTD is required to disclose such information to any government or law enforcement agency, or otherwise by law;
(b) obtaining a credit report or other information about the Client to decide whether to provide Goods or Services to them, to manage the Client’s account with MCSLTD, and/or to recover any amounts payable by the Client, including in relation to any enforcement or Court action or proceedings;
(c) to provide the Client with offers or information of other goods or services MCSLTD, or any of those above persons may be able to provide to the Client, or for other marketing purposes, unless the Client tells MCSLTD not to in writing, and the Client authorises those persons to provide such information to MCSLTD; or
(d) for third parties contracted to perform services; or
(e) to third party data processing agents to assist in providing services; or
(f) to third part survey analysis agencies that are contractually obligated to protect the data, to assist in improving services.
10.5 The Client acknowledges that information disclosed to credit reporting agencies may be disclosed by them to other third parties as part of their collection and credit reporting services to help those third parties to decide whether to provide goods, services or credit to the Client or to recover money the Client owes them.
(a) The Client must not assign any of its rights or obligations under the Agreement without the prior written consent of MCSLTD. MCSLTD may assign its rights and obligations under the Agreement without the Client’s consent.
(b) Any change in the effective control or management of the Client or any parent company of the Client, shall be deemed to be an assignment requiring the prior written consent of MCSLTD, which consent will not be unreasonably withheld.
10.7 Waiver: No waiver or breach of, or failure to enforce, any provision of, the Agreement will in any way limit the right of MCSLTD to enforce and compel strict compliance with the provisions of such Agreement.
10.8 Entire agreement: The Agreement constitutes the entire agreement between the parties as to its subject matter, and to the maximum extent permitted by law, supersedes all previous agreements and understandings on the subject matter.
10.9 Governing law: The laws of New Zealand govern the Agreement and any Specific Service Terms referring to these General Terms.
11. DEFINITIONS AND INTERPRETATION
Business Hours: 8.30 am to 6.00 pm from Monday to Friday, but excludes statutory public holidays in the Client’s city of business.
Business Day: any day that is not a Saturday, Sunday or statutory public holiday in the Client’s city of business.
Client Information: all information, content and data about the Client, its business and its clients which is disclosed to, or acquired by, MCSLTD in the performance of the Services, and includes all data stored on MCSLTD’s servers.
Confidential Information: Client Information and MCSLTD Information other than information that is or becomes:
(a) part of the public domain (other than through any breach of confidentiality by a party);
(b) lawfully known to the recipient on a non-confidential basis before being disclosed;
(c) available to the recipient from another person who is in possession of it lawfully and can disclose it on a non-confidential basis; or
(d) required to be disclosed by law.
General Terms: these general terms and conditions as amended from time to time, and includes any replacement terms.
Group: Millennium Computer Services Limited and any of its parent or subsidiaries as may change from time to time.
MCSLTD Information: all information, content and data about MCSLTD, its business and its other Clients, all information content and data about the business and clients of MCSLTD’s other Clients, MCSLTD’s Intellectual Property, and all information, content and data that is developed by MCSLTD while providing the Goods and Services.
MCSLTD’s Intellectual Property: all intellectual property in and associated with the business of MCSLTD and its other Clients, including all trade names, trade and service marks, discoveries, improvements, systems, specifications, manuals, trade secrets, know-how, procedures, computer software and programs (whether denominated software, firmware or otherwise), formulae, designs, writings, diagrams, logos, domain names, websites, drawings, copyright materials and the benefit of any applications or registrations in respect of the above and any other intellectual property and industrial property whatsoever and howsoever recorded or stored (if at all).
11.2 Interpretation: In the interpretation of these General Terms, unless the context otherwise requires:
(a) references to the parties include their respective executors, administrators, successors and permitted assigns;
(b) references to a person includes any form of entity including an individual, company, partnership, firm, trust, any central or local government department, and any other entity, or any other association or persons, either incorporated or unincorporated;
(c) words in the singular include the plural and vice versa;
(d) words importing one gender include the other genders;
(e) any obligation not to do anything includes an obligation not to suffer, permit or cause that thing to be done; and
(f) headings have been inserted for convenience only and will not affect the construction of the Agreement.