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Death Notices Online Remote Access - General Terms and Conditions
Death Notices Online (DNO) is offered by Millbridge Limited (ML) to its customers to provide on-line access to, and use of certain features of, the DNO System.
These general terms and conditions form the agreement between ML and you for the provision and use of DNO.
ML will consider your application and advise you of the outcome.
Access and Use
1. You will be provided with instructions that will help you access and use the DNO service. The instructions comprise of documents entitled 'Digital Certificate downloads and instructions' and 'Storage of Digital Certificates, Passwords and Passphrases'. You must only use and must ensure that your people only use DNO in accordance with those instructions.
2. You must at your own cost:
2.1 provide all equipment and all software necessary to access the Internet (as specified by ML from time to time) and pay for the maintenance of that equipment and software; and
2.2 have ongoing access to the services of an Internet service provider.
You are responsible for ensuring that your computer system meets the 'IT and system requirements for using DNO' as specified by ML from time to time
3. ML reserves the right to suspend DNO in whole or in part in the circumstances where ML determines that a significant breach of security has occurred or that a security system has failed that compromises or that could compromise the integrity or security of ML’s databases, or the DNO service until ML determines that such security breach or failure has been rectified.
Fees and Charges
4. The user, licence, annual and product service fees for DNO are set out in the attached schedule as amended from time to time.
5. You agree to pay all such fees incurred as a result of using DNO when the same become due and payable by you by direct debit or in such other manner notified to you by ML.
6. The user and licence fees for DNO must be paid before you will be connected to the service. Product service fees must be received by ML no later than the 20th of the month following the date of invoice. The annual fee (paid in arrears) for DNO is to be paid annually on receipt of invoice.
7. Overdue amounts are subject to interest for late payment (from the due date) at the rate of 16% per anuum. Disputed amounts notified to ML will not incur late payment interest while subject to a bona fide dispute. You will be liable to ML for all collection costs incurred by ML in recovering late payments from you.
Security
8. You are responsible for maintenance of the confidentiality and control of all Security Measures associated with the use by you or your people of DNO.
9. You are responsible for the selection and nomination of those of your people who you intend to be Subscribers and, therefore, users of the Security Measures. ML reserves the right to decline an application by any Applicant.
10. You must promptly notify ML if a Subscriber stops working for you.
11. You are solely responsible for ensuring that your people comply with the User Obligations. You must also comply with the User Obligations.
12. Any use of DNO by any person with access to the Security Measures used or made available to you or any of your people (whether authorised by you or not) constitutes sufficient authority for ML to:
12.1 act on any enquiries, provide such information, update its registers or to otherwise transact such dealings, with or under the instruction of that person; and
12.2 charge fees for the use of the products and services associated with DNO.
13. You shall promptly notify ML as soon as you become aware that any of the Security Measures used or available to you or any of your people are or have been compromised, or if you are aware of circumstances which give rise to a risk that those Security Measures have been compromised. You agree to help ML with any investigation of any suspected or actual compromise of any of those Security Measures.
14. You may request revocation of any of the Security Measures available to or being used by any of your people. Your people may also request revocation of their own Security Measures. ML reserves the right at any time to revoke the Security Measures being used by you or any of your people in order to safeguard the integrity and security of ML’s databases or the DNO service.
Privacy
15. ML may collect personal information about you or your people when you or your people, respectively, apply to join or use DNO and while you or your people, respectively, are users of that service.
16. That information may be collected:
16.1 directly from you or from your credit references, if you are applying;
16.2 from your people, if your people are applying; or
16.3 from credit reference agencies,
17. That information may be collected in order to:
17.1 help ML assess your application to use DNO;
17.2 help ML assess whether Security Measures will be issued to you or your people;
17.3 help ML check your credit information;
17.4 facilitate, access and use of DNO (if you are approved as a customer);
and
17.5 advise you and your people of changes to the service and these DNO general terms and conditions.
18. Information collected may also be used by ML for reporting and statistical purposes.
19. Your application or those of your people may be declined or you or your people may cease to be authorised users of DNO if you fail to provide information relevant to the application.
20. You and your people have rights of access to and correction of your personal information in accordance with the Privacy Act 1993.
Accuracy of Information
21. You are responsible for the accuracy and completeness of all information provided or submitted by you or your people when applying to join or when using DNO.
22. You acknowledge that the information provided or submitted by you or your people when using DNO may not be independently verified and that misuse could involve serious criminal and civil liability.
Your Obligations to ML
23. You shall be liable to ML for reasonably foreseeable costs (including settlement and legal fees), damages, losses or expenses that ML may incur, suffer or become liable for as a result of:
23.1 your breach of this agreement;
23.2 your or any of your peoples intentional misuse of DNO;
23.3 your or any of your peoples negligent acts errors or omissions; or;
23.4 any claim, suit, action or proceeding brought by a third party against ML as a result of the matters set out in paragraphs 23.1 - 23.3. except to the extent that ML is at fault through any act or omission.
24. Nothing in clause 23, limits any rights and remedies ML may have under statute or under the general law.
25. Your use of DNO may not be transferred to any other person without ML’s prior written consent, such consent not to be unreasonably withheld or delayed.
26. You are responsible for maintaining anti virus measures commonly in place from time to time. ML is not responsible for loss or damage caused by your failure to provide and maintain adequate anti virus measures.
27. You are responsible for ensuring that you and your people do not transmit across or submit to DNO any material, data or information that:
27.1 infringes the intellectual property rights of any person;
27.2 is obscene, offensive, upsetting, defamatory, or unsuitable for people under the age of 18 years; or
27.3 breaches the Fair Trading Act 1986 or any other statute, regulation or rule of law.
ML’s Obligations to You
28. In consideration of the subscriber entering into this agreement ML shall:
28.1 endeavour to maintain DNO in good operational condition throughout the term of this agreement;
28.2 assist you to understand the operational requirements and any protocols adopted from time to time for the use of DNO.
Our Obligations to Each Other
29. We shall co-operate and assist each other in the performance of our respective obligations and bring to each other’s attention any concerns or difficulties experienced with regard to the application of DNO with the intent being to identify areas of improvement in the application of DNO as between us.
ML’s Liability
30. ML shall not be liable for any damages, losses, liabilities, costs or expenses (including any indirect, special consequential, incidental, reliance or punitive damages, losses, liabilities, costs or expenses) caused by:
30.1 any exercise of any right, remedy or discretion which ML is entitled to exercise;
30.2 anything for which you accept responsibility or liability under these DNO terms and conditions;
30.3 any compromise of Security Measures used or available to you or to any of your people in the absence of proven negligence or default on the part of ML;
30.4 loss or corruption of your data or records or loss or corruption to your computing resources, software, or other information technology infrastructure.
Term and Termination
31. This agreement shall come into force on the approval of your application and remain in force until terminated by either party.
32. You may terminate this agreement at any time by notice to ML but termination shall not affect the rights and obligations of either party for matters arsing prior to termination.
Dispute Resolution
33. If any dispute arises between the parties concerning this agreement (including any dispute as to breach or termination of this agreement) the parties shall without prejudice to any other right or entitlement they may have under this agreement or otherwise, explore whether the dispute can be resolved by the use of the alternative dispute resolution technique of mediation. The rules governing such techniques shall be agreed between the parties or as selected by the New Zealand Chapter of LEADR (Lawyers engaged in Alternative Dispute Resolution).
34. If the dispute is not resolved within twenty eight days of written notice by one party to the other of the dispute (or such further period agreed in writing between the parties), the parties shall submit to the arbitration of a sole arbitrator appointed jointly by the parties, and if one cannot be agreed upon within 14 days, to an arbitrator appointed by the President for the time being of the New Zealand Law Society or his or her nominee. In either case, the arbitrator shall not be a person who has participated in any informal dispute resolution procedure in respect of the dispute.
35. Such arbitration shall be determined in accordance with the Arbitration Act 1996 and the law of New Zealand.
Miscellaneous
36. You agree that the rights and remedies otherwise available to you under the Consumer Guarantees Act 1993 in respect of your use of the DNO Remote Access, will not apply.
37. Where one or more persons are applying together to join DNO (for example a partnership), the liability of the subscribers to the service shall be joint and several and these DNO general terms and conditions are to be read as applying to each such person separately.
38. ML shall not be liable for any act or failure to act if the act or omission arises from any cause beyond its control. These events may include (but are not to be limited to) acts of God, strikes, lockouts, riots, acts of war, earthquakes, floods, fire, communication line failures, power failures, or computer or processing system failure.
39. Failure on the part of ML to enforce any of these DNO general terms and conditions shall not be construed as a waiver of such terms and conditions or a waiver of the right to enforce those terms and conditions at a later time.
40. Your address for service and for notices is the address you provide in your application for DNO unless notice of change is given to ML.
41. ML reserves the right to change any of these general terms and conditions on not less than 30 days prior notice. Such changes may involve (but are not limited to) a change to the type of products and services then on offer or a change to the fees and charges payable for or in relation to the service.
Notice of any change to these general terms and conditions will be advised to you.
42. These DNO terms and conditions together with the User Obligations, 'Digital Certificate downloads and instructions' and 'Storage of Digital Certificates, Passwords and Passphrases' constitute the entire understanding and agreement between you and ML as to the subject matter of these general terms and conditions.
43. These DNO terms and conditions are governed and are to be construed in accordance with New Zealand law.
44. You agree to submit any dispute arising under or in connection with these DNO terms and conditions or DNO, to the jurisdiction of the New Zealand Courts.
Definitions
"Applicant" means a person that has applied or is applying to become a user of the Security Measures;
"Compromise" means a suspected or actual loss, disclosure, unauthorised use or loss of control over the Security Measures;
"Notice" means notice sent to you by post, fax or e-mail at your last contact address, fax number or e-mail address known to ML;
"DNO" means the products and services offered by ML to its customers providing on-line access to and use of certain features of the DNO System;
"DNO System" means ML’s service for on-line publication of death or other public notices;
"Security Measures" means logon names, passwords, private keys used in relation to Digital Certificates or other measures provided to you or your people by ML from time to time to enable access or continued access to DNO;
"Subscriber" means a user of the Security Measures, whose application for such use has been confirmed;
"install" or "installs" refers to that part of the software download process which requires you to provide your security measures to enable access or continued access to DNO.
"User Obligations" means those obligations which apply to you and each of your people as Applicants or Subscribers;
"You" is a reference to you as an Applicant or you as a Subscriber, as the case may be; and
"your people" is a reference to each and every of your employees, contractors and agents who are Applicants or Subscribers for the time being.