Checkmate Service Terms

These Terms were most recently updated on 19^th May 2022.

Background:

A. Checkmate has developed the Services, which it makes available to subscribers via the Website on a per-Credit basis for the purpose of Candidate Reference Checks, Background Checks and related processes.

B. Your purchase of Credits and use of the Services are subject to these Terms. 

C. You may sign up to use the Services by completing the application form on the Website and providing Checkmate with certain details.

Terms:

1. Definitions and Interpretation

1.1. Capitalised terms used in these Terms shall have the meaning set out in clause 14, and the rules of interpretation set out in clause 14 shall apply to these Terms.‍

2. Access to the Service

2.1. You may sign up to use the Services by completing the application form on the Website and providing Checkmate with certain details. You must complete all information requested accurately and truthfully. 

3. License, Fees and Payment

3.1. After signing up to the Service, you may from time to time purchase Credits via the Website.  Subject to these Terms, Checkmate grants you a non-exclusive, non-transferable right, without the right to grant sublicences, to undertake one (1) Reference Check or Background Check per Credit, until that Credit expires in accordance with clause 3.3.

3.2. You are responsible for determining how many Referees a Candidate will need to provide, and may request up to three (3) references from Referees in respect of a single Reference Check.

3.3. Unused Credits will expire six (6) months after the Credit’s date of purchase, absent a determination of Checkmate to the contrary (which will at all times be at the sole discretion of Checkmate).

4. Service Commitments

4.1. The Services will be performed substantially in accordance with the description of the Services on the Website, noting that you must hold an unexpired Credit before you can undertake a Reference Check or a Background Check.

4.2. We endeavour to make the Website available 24/7/365 accessible via an Internet browser. Checkmate's availability target for the Services is 99.5%, excluding any planned outages for maintenance or outages beyond Checkmate's control.

4.3. Checkmate is constantly changing and improving the Service. Updates will be made available to you over time, which may include new features and/or functionality.

4.4. Helpdesk support is available during Normal Business Hours, and available on +64 9 889 8410 or on email at team@checkmate.tech.  Support is included as part of the purchase price for Credits.  Checkmate will acknowledge support requests in relation to the Services within 12 hours and will make best efforts to resolve support requests in relation to the Services within 48 hours (depending on the severity).

4.5. Checkmate may run ad hoc updates to fix identified defects to the Services, these updates will be generally run between 10pm to 5am New Zealand time, excluding exceptional circumstances, which may require down time and updates to be going at other times.

4.6. The undertakings above shall not apply to the extent of any non-conformance caused by use of the Services contrary to Checkmate’s instructions, or modification or alteration of the Services by any party other than Checkmate. 

4.7. Checkmate is not responsible for any internet or telecommunication connectivity issues that may disrupt the Service.

4.8. If the Services do not conform with the above-mentioned undertakings, then Checkmate may, at its expense and as determined by Checkmate in its sole discretion:

4.8.1. use all reasonable commercial endeavours to correct any such non-conformance promptly;

4.8.2. provide you with an alternative means of accomplishing the desired performance; or

4.8.3. refund the cost of your unexpired Credits.

Such correction, substitution or refund constitutes your sole and exclusive remedy for any breach of the undertakings set out above. Despite the foregoing, it is acknowledged and agreed that Checkmate does not warrant:

4.8.4. that the Services, Documentation and/or the information obtained by you through the Services (including any Reference Check and/or Background Check) will meet your requirements;

4.8.5. that the Services, Documentation and/or the information obtained by you through the Services (including any Reference Check and/or Background Check) will be uninterrupted or entirely error-free; 

4.8.6. that any information or data made available by Checkmate or otherwise created by or derived from the Services (including any Reference Check and/or Background Check) will be accurate, complete or current; or

4.8.7. that the performance of the Services or the Documentation and/or the information obtained by you through the Services (including any Reference Check and/or Background Check) will not be affected by data entry errors, including incorrect entries, double entries or delayed entries, or incorrect, outdated or untimely data (written or oral) supplied by Checkmate’s third party data providers or otherwise used by Checkmate in connection with the provision of the Services.

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5. Your Obligations

5.1. You shall:

5.1.1. provide Checkmate with all necessary co-operation in relation to these Terms, and all necessary access to such information as may be required by Checkmate in order to provide the Services, including but not limited to the Client Data;

5.1.2. without affecting your other obligations under these Terms, comply with all applicable laws and regulations with respect to its activities under these Terms;

5.1.3. ensure that you do not allow anyone else you use your login and password details, and keep your login and password details confidential; 

5.1.4. obtain and shall maintain all necessary licences, consents, and permissions necessary for Checkmate, its contractors and agents to perform their obligations (including the Services) under these Terms and in accordance with all laws;

5.1.5. ensure that your network and systems comply with the relevant specifications provided by Checkmate from time to time; 

5.1.6. not introduce any Virus into the Service or Checkmate’s information technology systems; 

5.1.7. not use the Services, Documentation and/or the information obtained by you through the Services (including any Reference Check and/or Background Check) for any illegal or unauthorized purpose or otherwise in a manner that violates any laws applicable to Checkmate, you or any of your authorised users (including but not limited to copyright, privacy and data protection laws);

5.1.8. not use the Services, Documentation and/or the information obtained by you through the Services (including any Reference Check and/or Background Check) to commit credit fraud, identity theft or other unethical business practice; and

5.1.9. be, to the extent permitted by law and except as otherwise expressly provided in these Terms, solely responsible for procuring, maintaining and securing your network connections and telecommunications links from your systems to Checkmate’s data centres, and all problems, conditions, delays, delivery failures and all other loss or damage arising from or relating to your network connections or telecommunications links or caused by the internet. Checkmate is not responsible for any loss or damage resulting from the transfer of data over communications networks and facilities, including the internet, and you acknowledge that the Services and Documentation may be subject to limitations, delays and other problems inherent in the use of such communications facilities.

5.2. You are responsible for all activities which occur under your account.

5.3. You shall use all reasonable endeavours to prevent any unauthorised access to, or use of, the Services and, in the event of any such known or suspected unauthorised access or use, promptly notify Checkmate.

5.4. You warrant that:

5.4.1. you are using the Services solely for the purpose of assessing suitability of potential employees or contractors for your business; and

5.4.2. you are knowledgeable in the jurisdiction(s) in which you operate as to the laws (including, as applicable, federal, state and/or local laws, ordinances, statutes and regulations) which may apply to your business and use of the Services, and that  your use of the Services, Documentation and/or the information obtained by you through the Services (including any Reference Check and/or Background Check) will at all times comply with the same.

6. Client Data

6.1. You (or your authorised users, referees or candidates, as applicable) shall own all right, title and interest in and to all of the Client Data and shall have sole responsibility for the legality, reliability, integrity, accuracy and quality of all such Client Data.

6.2. Checkmate shall host and retain (via a third party hosting services) Client Data until the date that is three (3) months after you ceases to retain a positive Credit balance, and shall ensure that all Client Data is accessible by you during this time (whether via download functionality, email request from Checkmate, or otherwise). From such point onwards, Checkmate shall may delete some or all Client Data at its discretion. It is your responsibility to access and obtain a copy of any Client Data that you wish to retain/store before it is deleted.

6.3. In the event of any loss or damage to Client Data, your sole and exclusive remedy against Checkmate shall be for Checkmate to use reasonable commercial endeavours to restore the lost or damaged Client Data.

7. Privacy Obligations

7.1. Each party shall, in connection with these Terms and the Services, comply with the Privacy Policy, including with respect to ensuring the privacy and security of the Client Data. The terms of the Privacy Policy are deemed to form a part of these Terms. 

7.2. Both parties will comply with all applicable requirements of the Data Protection Legislation. This clause 7 is in addition to, and does not relieve, remove or replace, a party’s obligations or rights under the Data Protection Legislation.

7.3. Without limiting any consents or approvals that Checkmate may choose to request from Candidates in respect of the collection or processing of Personal Data, you will ensure that you have all necessary appropriate consents and notices in place to enable lawful transfer of Personal Information to Checkmate for the duration and purposes of these Terms so that Checkmate may lawfully use, process, disclose and transfer the Personal Information in accordance with these Terms and the Privacy Policy on your behalf.

7.4. You shall not retain Personal Data of any Candidate or Referee on your systems (or your Checkmate account) for any longer than is necessary, taking into account the purpose for which the Personal Data was provided, and any legal obligations you have (e.g. to maintain records for tax purposes). You are responsible for deleting Personal Data from your systems and Checkmate account, as necessary to comply with this clause 7.4.  

7.5. Without limiting any obligations of the Client in clause 7.4, the Client acknowledges that Checkmate may delete all reports prepared for the Client from Checkmate’s systems no less than 30 days from completion of the relevant Services.

8. Third Party Websites

8.1. You acknowledge that the Services may contain links to third-party websites, advertisers, services, special offers, or other events or activities that are not owned or controlled by us. These links are provided for your information only. Checkmate does not endorse, sponsor or approve any such third-party sites, information, materials, products, or services.

8.2. If you access any third party website, service, or content you do so at your own risk.  Checkmate will have no liability arising from your use of or access to any third-party website, service, or content.

9. Intellectual Property

9.1. Your access to and use of the Services does not constitute a sale. Title to, and all intellectual property rights in the Services, Software, the Website and any Documentation remain the property of Checkmate (or its licensors), and any improvements or alterations to intellectual property rights in the Services, Software, the Website and any Documentation generated from feedback from you shall belong to Checkmate (or its licensors).

9.2. Your use of the Services does not provide you with any license or other entitlement to the Software or any other intellectual property of Checkmate, other than for the purpose of using the Services in accordance with these Terms.

9.3. Checkmate believes that its use of the Software or any other intellectual property in connection with the Services is legitimate and in accordance with applicable law governing the use of intellectual property; however, if it is determined that Checkmate’s provision of, or your use of, the Service infringes upon the intellectual property rights of any other party, Checkmate reserves the right to discontinue the availability of any Services which incorporate the use of such infringing intellectual property.

10. Confidentiality

10.1. Each party will be given access to Confidential Information from the other party in order to perform its obligations under these Terms.  Each party must at all times hold the other’s Confidential Information in confidence, and not make the other’s Confidential Information available to any third party or use the other’s Confidential Information for any purpose other than the implementation of these Terms, except for when:

10.1.1. authorised in writing by the disclosing party; or

10.1.2. to the extent such Confidential Information is required to be disclosed by law.

10.2. This clause 10 shall survive termination of these Terms.

11. Termination

11.1. These Terms will apply from the moment you purchase Credit or use the Service and shall continue until terminated by either party.

11.2. You may terminate these Terms by giving Checkmate 30 days’ written notice. Termination will end your ability to use the Service, and you will not be entitled to any refund of all or any part of any unexpired Credits, or any other amount paid to to Checkmate. 

11.3. If you breach these Terms, Checkmate may (but is not obliged to) give you written notice specifying the breach, and Checkmate may immediately terminate these Terms and your right to use the Service by giving you written notice. Checkmate will refund any unexpired Credits to your nominated bank account provided Checkmate receives sufficient written evidence that the bank account is in your name after the deduction of any costs, losses, or damages suffered by Checkmate as a result of the breach.

12. Limitation of Liability

12.1. To the extent permitted by law both parties exclude all representations, guarantees, warranties or terms (whether express or implied) other than those expressly set out in these Terms.

12.2. Notwithstanding any other provision to the contrary in these Terms:

12.2.1. you acknowledge and agree that the Reference Checks and Background Checks undertaken as part of the Services are merely one information tool which can be used by you to assist in assessing the suitability of Candidates. The information supplied by Checkmate from the Services should not be relied upon as the sole basis for making decisions.  Checkmate will not under any circumstances be liable to you or any third party in respect of the acts or omissions of you in using any information created by or derived from the Services, including any decisions made in respect of the employment or engagement of Candidates, which remains your sole responsibility; and

12.2.2. Checkmate will not be liable for any delay, defect, deficiency and/or loss of service or any loss caused by or on account of equipment, data or services supplied by (or obtained from) you or any third party.

12.3. Checkmate’s liability to you in connection with the Services and these Terms:

12.3.1. in any calendar year shall be no greater than the combined value of Credits purchased in that relevant calendar year; and

12.3.2. shall exclude any liability which falls within any of the following categories:

• • special damage;
• • loss of profits;
• • loss of anticipated savings;
• • loss of business opportunity;
• • loss of goodwill;
• • loss or corruption of data,

even if Checkmate was aware of the circumstances in which such loss or damage could arise. 

13. Governing Law

13.1. These Terms and any dispute between the parties shall be governed by and will be interpreted in accordance with the laws of New Zealand.

13.2. The Services may be accessed outside of New Zealand.  Checkmate makes no representation that the Services comply with the laws of any country outside New Zealand.  If you’re or your Candidates or Referees access the Services from outside New Zealand, they do so at their own risk and you are responsible for complying with the laws in the place where they access the Services.

14. Definitions and Interpretation

14.1. Capitalised terms used in these Terms shall have the meaning set out below, and the rules of interpretation set out below shall apply to these Terms.

Background Check means the pre-employment screening check conducted by Checkmate under your instruction and consent from the Candidate.

Business Day means a day other than a Saturday, Sunday or public holiday in Auckland, New Zealand.

Candidate means a person designated as such, within the Services, by you.

Client Data means the data inputted by you, Candidates, Referees, or by Checkmate on your behalf for the purpose of using the Services or facilitating your use of the Services.

Confidential Information means information that is proprietary or confidential and is either clearly labelled as such or identified as Confidential Information, and shall include the Services and Client Data. Confidential Information shall not include information that:

a. is or becomes publicly known other than through any act or omission of the receiving party;

b. was in the other party’s lawful possession before the disclosure;

c. is lawfully disclosed to the receiving party by a third party without restriction on disclosure; or

d. is independently developed by the receiving party, which independent development can be shown by written evidence.

Credits mean the credits purchased by you, which entitle you to undertake a Reference Check and/or Background Check.

Data Protection Legislation means the Privacy Act 2020 (NZ) and any other legislation and regulatory requirements in force from time to time which apply to a party relating to the use of Personal Information.

Documentation means the document made available to the Client by Checkmate online via the Website, which sets out a description of the Services and the user instructions for the Services.

Normal Business Hours means 8.30 am to 5.00 pm local Australian time, each Business Day.

Personal Information has the meanings given to it in the Data Protection Legislation.

Privacy Policy means Checkmate’s Privacy Policy available here [link], as amended by notification on our Website from time to time.

Reference Check means the collection of references in respect of a Candidate from Referees, through the Services.

Referee means a person designated as such, within the Services, by a Candidate, being the person who will provide a reference for that Candidate.

Services means the services provided by Checkmate to you via the Website, as more particularly described in the Documentation.

Software means the online software applications provided by Checkmate as part of the Services.

Virus means any thing or device (including any software, code, file or programme) which may: prevent, impair or otherwise adversely affect the operation of any computer software, hardware or network, any telecommunications service, equipment or network or any other service or device; prevent, impair or otherwise adversely affect access to or the operation of any programme or data, including the reliability of any programme or data (whether by re-arranging, altering or erasing the programme or data in whole or part or otherwise); or adversely affect the user experience, including worms, trojan horses, viruses and other similar things or devices.

Website means www.checkmate.tech or such other web address notified by Checkmate to the Client from time to time.

Website Terms means the terms and conditions available online, or such other terms and conditions notified by Checkmate via the Website from time to time.

14.2. Clause and paragraph headings shall not affect the interpretation of these Terms.

14.3. A person includes an individual, corporate or unincorporated body (whether or not having separate legal personality) and that person’s legal and personal representatives, successors or permitted assigns.

14.4. Unless the context otherwise requires, words in the singular shall include the plural and in the plural shall include the singular, and a reference to one gender shall include a reference to the other genders.

14.5. Unless specified elsewhere in these Terms, a reference to a statute or statutory provision is a reference to it as it is in force as at the date you accept these Terms.

14.6. A reference to a statute or statutory provision shall include all subordinate legislation made as at the date you accept these Terms under that statute or statutory provision.

14.7. References to clauses and schedules are to the clauses and schedules of these Terms.