Checkmate Terms of Service

These Terms were most recently updated on 12^th December 2024.

• 1. Introduction

1.1 By accessing the Website and Services, you consent to be bound by these terms of use (Terms), which together with the application form you have completed on the Website (Application) our privacy policy (available here) (Privacy Policy) form a binding agreement between you and us (Agreement). If you do not agree with these terms, do not complete and Application or access the Services. 

1.2 This Agreement between you and us will commence on the date that you first access any of the Services and shall continue until it expires or is terminated in accordance with its terms (Term).

1.3 If you are accessing the Services on behalf of a Customer, you confirm that you have the authority to act on behalf of that entity.

1.4 From time to time we may need to make changes to these Terms. We will notify you of any changes to these Terms by posting them on the Website or emailing you. You agree that, by continuing to access or use the Services you will be bound by the updated Terms, except that, where such changes have a material detrimental effect on your rights under this Agreement, you may terminate this Agreement with effect from the date on which the change comes into effect.

2. Access to the Services‍

2.1 You may sign up to access and use the Services by properly completing an Application.‍

3. Services‍

3.1 We grant you a non-exclusive non-transferable right to access and use the Subscription Service solely for your internal business purposes and strictly in accordance with this Agreement. 

3.2 We will provide you with the Professional Services (if any) specified in your Application (or as otherwise agreed in writing with Checkmate) in accordance with this Agreement. 

3.3 As part of the Subscription Service, we will:

3.3.1 provide access to our standard helpdesk support between 8.30 am to 5.00 pm local NZ time, each Business Day. This can be accessed by you on +64 9 889 8410 or on email at team@checkmate.tech;

3.3.2 run ad hoc updates to fix identified defects in the Services;

3.3.3 endeavour to undertake most of its scheduled maintenance between 10:00 pm and 3:00 am local New Zealand time; and

3.3.4 endeavour to retain a 99% uptime for the Subscription Service, excluding downtime for scheduled maintenance (as described in 3.3.3) and any events that are beyond Checkmate's reasonable control (such as internet outages). 

3.4 We may, at any time and without liability to you, modify (including, without limitation, any modification or redesign of the organization, look, feel, navigation or other elements of the Subscription Service or Website or discontinue the Subscription Service (or any part of it). We will provide you with notice of any modifications and, if such modifications will have a material detrimental effect on your rights under this Agreement, you may terminate this Agreement with effect from the date on which the change comes into effect.‍

4. Authorised Users‍

4.1 You will:

4.1.1 ensure that only your Authorised Users access or use the Services on your behalf;

4.1.2 set the administration privileges of each Authorised User and monitor whether those privileges are being adhered to; and

4.1.3 ensure all Authorised Users keep their access information, including email addresses and log-on credentials, secret and secure.

4.2 You must ensure that each Authorised User complies with this Agreement and any other reasonable condition or direction notified to you by us.  A breach of any term of this Agreement by an Authorised User will be deemed to be a breach by you.  ‍

5. Use of Services‍

5.1 You must comply (and ensure your Authorised Users comply) with all Documentation, applicable laws, rules and regulations, together with all instructions (including website scraping instructions or directions), guidelines, procedures and policies notified by us from time to time in connection with the Services.

5.2 When accessing and using the Subscription Service, you (and your Authorised Users) must:

5.2.1 only use the Subscription Service for your internal business purposes and otherwise in accordance with all applicable laws;

5.2.2 not use the Subscription Service or any Customer Data for any unauthorised or illegal purpose or distribute through the Subscription Service any attachments, documents or files that: (i) infringe on any copyright, patent, trade secret, trademark or other third party proprietary rights; (ii) violate any law, statute, ordinance or regulation; (iii) are defamatory, libellous or obscene; or (iv) contain viruses, trojan horses, worms, time bombs, or similar harmful programming routines;

5.2.3 not attempt to undermine the security or integrity of the Subscription Service, computing systems or networks or, where the Subscription Service is hosted by a third party, that third party's computing systems and networks;

5.2.4 not modify, translate, reverse engineer, decompile, disassemble or create derivative works of the Subscription Service (or any part of it) or otherwise attempt to: (i) defeat, avoid, by-pass, remove, deactivate or otherwise circumvent any software protection mechanisms in the Subscription Service (or any part of it); or (ii) derive the source code or the underlying ideas, algorithms, structure or organisation form of the Subscription Service (or any part of it); and

5.2.5 promptly notify us if you have knowledge of the existence of any unauthorised knowledge, possession or use of any part of the Subscription Service or any Customer Data.

5.3 If we consider (acting reasonably) that you have engaged in any unlawful or unauthorised activity, have used the Services beyond the scope of your authorisation or in breach of any of the restrictions in this clause 5, we may take one or more of the following actions in its absolute discretion:

5.3.1 limit or suspend your access to the Subscription Service;

5.3.2 terminate this Agreement immediately by notice in writing to you; or

• 5.3.3 delete, edit or remove any of the relevant data, material or information.‍
• ‍
• 6. Our obligations‍

6.1 We will

6.1.1 ensure the Subscription Service complies with the Documentation; and 

6.1.2 exercise reasonable care and skill in maintaining, updating and making available the Subscription Service and performing the Professional Services.

6.2 Although we will use reasonable efforts to ensure the Subscription Service is available 24 hours a day, 7 days a week, you acknowledge that there may be times that the Subscription Service is unavailable (including to permit maintenance or other development activity to take place).  

• 7. Fees and payment‍

7.1 In consideration of the provision of the Services, you will pay us the Fees. We will provide you with an invoice for the Fees [monthly in arrears], and you must pay each invoice within 30 days of the date of the relevant invoice.

7.2 We may vary the Fees on an annual basis by providing notice in writing to you of such variation at least 10 days prior to the expiry of the relevant Year of the Term.  The notified amendments to the Fees will take effect from the start of the relevant Year.

7.3 All amounts payable under this Agreement by you (including the Fees) (i) do not include any sales tax which, if applicable and if we are required to account for, shall be payable by you; and (ii) shall be paid gross without deduction of any withholding taxes and, if subject to any withholding taxes, you will ensure that such sum is paid to us as shall, after deduction of any withholding tax, be equivalent to the amounts due.

• 7.4 If you fail to pay any invoice by the relevant due date, without limiting any other rights that we may have, we may:

7.4.1 charge interest on amounts overdue at a rate of 2% per annum over the base overdraft facility rate charged by our bankers from time to time, compounded monthly, but not to exceed the maximum amount permitted by law, until payment has been made in full. Such interest shall be payable on demand; 

• 7.4.2 suspend your access to the Services, pending payment in full of all amounts outstanding; and

7.4.3 charge you all costs we incur in connection with the recovery of the unpaid amounts.  

• 8. Confidentiality‍

8.1 Each party will maintain as confidential at all times, and will not at any time, directly or indirectly disclose or permit to be disclosed to any person other than an employee, contractor or advisor on a “need to know” basis, any Confidential Information except:

8.1.1 as required by law;

8.1.2 as is already or becomes public knowledge, otherwise than: (a) as a result of a breach by the party disclosing; or (b) through an unauthorised disclosure by a third party.

8.1.3 as authorised in writing by the other party; or

• 8.1.4 to the extent reasonably required in order to give effect to this Agreement.

9. Data and privacy‍

9.1 We are committed to protecting the security of Customer Data and:

9.1.1 have implemented and will maintain and follow appropriate technical and organizational measures intended to protect Customer Data against accidental, unauthorized or unlawful access, disclosure, alteration, loss, or destruction; 

9.1.2 will limit the Customer Data we provide to our third party service providers to that which is reasonably necessary for them to perform their functions, and will place an obligation on them to maintain the confidentiality of such data; and

9.1.3 will comply with all applicable privacy laws in connection with our processing of Customer Personal Information.

• 9.2 We acknowledge and agree that:

9.2.1 as between Checkmate and the Customer, all Customer Data will be (and will remain) exclusively owned by you;

9.2.2 we will not use, access, store, process or transmit Customer Data for any purpose other than as specified in this Agreement, and as otherwise required to comply with our obligations under this Agreement and any applicable laws; and

9.2.3 we will not disclose, sell, assign or otherwise dispose of to third parties, any Customer Data, other than for the purposes of performing the Services and as otherwise specified in this Agreement. 

• 9.3 You must, in connection with your access to and use of the Services:

9.3.1 obtain and maintain all necessary permissions, consents and authorisations from individuals required to disclose the Customer Data to us and for the collection, storage, disclosure and use of all Customer Data and other information (including Customer Personal Information) by us (and our third party service providers) in the manner anticipated by this Agreement and the Services you have subscribed to; and

9.3.2 comply (and must ensure that each Authorised User complies) with all applicable privacy laws (including the New Zealand Privacy Act 2020) in connection with your collection and use of any Personal Information of any person.

9.4 You acknowledge and agree that:

9.4.1 we may access, process and/or disclose Customer Data (including Personal Information) in the manner and for the purposes specified in this Agreement, and for any other purpose that you have authorised;

9.4.2 we work with third party service providers who provide various services for us in connection with the Services (including, hosting and maintenance services). These third parties may have access to, or process, Customer Data as part of providing those services;

9.4.3 we utilise the services of overseas entities in various countries outside NZ (including Europe and the US) to provide it with hosting and maintenance services. Consequently, we may transfer Customer Data to parties located in these other countries.  Although we will endeavour to ensure that Customer Data is treated securely and in accordance with this Agreement as well as applicable data protection laws, you acknowledge that some of these countries may not have an equivalent level of data protection laws as those in NZ; and

9.4.4 while we adhere to Good Industry Practice processes and policies to keep Customer Data secure and confidential, the internet is inherently insecure, and we cannot guarantee that there will never be any unauthorised access to, or loss of, Customer Data. 

9.5 We will monitor the Subscription Service and systems under our control for any actual or potential security incidents/vulnerabilities or performance issues. If we become aware of any unlawful access to or use of, or disclosure, alteration, loss, or destruction of any Customer Data, we will:

9.5.1 notify you in writing of the security incident as soon as possible after becoming aware of the security incident; and

9.5.2 promptly investigate the security incident and provide you with detailed information about incident.

9.6 We will host and retain (via a third party hosting services) Personal Information contained in the Customer Data until the date that is three months after the end of your subscription to the Subscription Service, and shall ensure that all Customer Data is accessible by you during this time (whether via download functionality, email request from us, or otherwise). From such point onwards, we may delete all Customer Data in accordance you’re your instructions and/or otherwise as required by law. It is your responsibility to access and obtain a copy of any Customer Data that you wish to retain/store before it is deleted.

9.7 You grant to us a non-exclusive royalty-free worldwide and irrevocable license to copy, anonymize, aggregate, process and display Customer Data to derive anonymous statistical and usage data, and data about the functionality of the Services, provided such data cannot be used to identify Authorised Users or any other individual (Anonymous Data). We may adapt or modify Anonymous Data or combine Anonymous Data with or into other similar data and information available, derived or obtained from other customers, licensees, users, or otherwise (when so adapted, modified, combined or incorporated, referred to as Aggregate Data). We will be the owner of all right, title and interest in and to the Anonymous Data and Aggregate Data and may use and exploit Anonymous Data and Aggregate Data for any purpose.

• 10. Intellectual Property

10.1 Subject only to your rights in the Customer Data (as specified in clause 9.2.1):

• • 10.1.1 the Subscription Service, underlying software and any outputs of the Professional Services (including any bespoke features) may be protected by copyright and other interests and, excluding any open source software used in connection with the Services, are proprietary and confidential to Checkmate and our third party licensors and/or suppliers; and
• 10.1.2 all rights, title and interest in and to the Subscription Service, underlying software and any outputs of the Professional Services (including any bespoke features), including associated Intellectual Property, including any modification, enhancement or derivative work made in relation to such items, are and will remain owned by Checkmate or our third party licensors or suppliers (as applicable).

10.2 Beyond the rights expressly granted in this Agreement, nothing contained in this Agreement confers on you any right or interest in, or licence or permit to use, any of the Intellectual Property rights of Checkmate or any of its licensors or suppliers.

10.3 To the extent you or Authorised Users provide feedback to us in respect of the Services, all Intellectual Property in that feedback shall be owned by us.

• 11. Warranties‍

11.1 You warrant that you have obtained all necessary permissions, consents and authorisations from individuals to disclose the Customer Data to us and for the collection, storage, disclosure and use of all Customer Data and other information (including Customer Personal Information) by us (and our third party service providers) in the manner anticipated by this Agreement and the Services you have subscribed to.

11.2 We warrant that the Professional Services will be provided with due care and skill. In the event of any breach of this warranty or any other defect or deficiency in the Services or the Website, your sole remedy will be (at our option) resupply of the non-conforming Service within a commercially reasonable time or a refund of the Fees paid by you for such non-conforming Service.

• 11.3 Other than as expressly provided for in clause 11.2:

11.3.1 The Services and any outputs from the Services (including any Reference Checks and Background Checks) are provided, to the extent permitted by law, on an "as is" basis without any warranty or condition of any kind, either express or implied. Use of the Services and outputs (including any Reference Checks and Background Checks), and any part of them, is at your own risk. 

• 11.3.2 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 us from the Services should not be relied upon as the sole basis for making decisions.  We will not under any circumstances be liable to you or any third party in respect of any use of 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.

12. Liability

• 12.1 Neither party will be liable to the other (including under any indemnity) for any failure to comply with this Agreement or delay in complying with this Agreement to the extent caused directly by a breach of this Agreement by the other party or any unlawful or negligent act or omission of the other party or any of its personnel, contractors or representatives (including in the case of the Customer, any Authorised Users). 

12.2 Despite any other provision to the contrary in this Agreement:

12.2.1 to the extent we become liable to you under or in connection with this Agreement or the Services, our total aggregate liability in respect of all claims will not, in any circumstances exceed the total Fees paid by you to us under this Agreement; and

12.2.2 we will not be liable to you in respect of any claim in respect of which proceedings are not filed by you within two years of the events giving rise to the claim

12.3 Under no circumstances will either party, its employees or agents be liable, whether in contract, equity, tort (including negligence, breach of statutory duty or otherwise) or any other theory of liability, for any direct or indirect: loss of profits, loss of revenue, loss of anticipated savings; or for any indirect, special or consequential loss whatsoever.

• 12.4 Despite any other provision to the contrary in this Agreement, we will not under any circumstances be liable to you, any Authorised User or any third party in respect of your use or reliance on any information created by or derived from the Customer Data, including any decisions in respect of your business or customers arising from the use of the Services or Customer Data, which remains your sole responsibility.

12.5 You acknowledge that the Website and the Subscription Service may contain links to other third-party websites that are not our responsibility, and we have no control over the content of the linked websites. Inclusion of any linked third-party website on the Website or the Subscription Service does not imply our approval or endorsement of the linked website.

• 13 Termination

13.1 Either party may terminate this Agreement immediately by notice in writing if a party:

• 13.1.1 is in breach of any material term of this Agreement and the breach is not capable of being remedied;

13.1.2 is in breach of any material term of this Agreement and, if the breach is capable of being remedied, has not remedied the breach within 10 Business Days of receiving notice of the breach from the other party; or

13.1.3 becomes insolvent, goes into liquidation or has a receiver or manager appointed over any of its assets or makes any arrangement with its creditors, or becomes subject to any similar insolvency event in any jurisdiction.

13.2 We may also terminate this Agreement by notice in writing to you where:

13.2.1 required by law; or 

• 13.2.2 we (acting reasonably) consider it necessary or desirable to do so to protect its interests, the interests of anyone else and/or the security of the Subscription Service.

13.3 You will upon expiration or termination of this Agreement immediately cease to access or use the Services and will destroy all access codes or passwords related to the Subscription Service and Confidential Information in its possession or under its control. 

• 13.4 Termination of this Agreement is without prejudice to any rights and obligations of the parties accrued up to and including the date of termination.

• 14. General‍

14.1 The parties agree to use their best endeavours to promptly resolve any dispute or difference between them by way of good faith negotiations.  If such good faith negotiations fail to resolve a dispute, either party may, at its option, require the other party to submit to mediation in New Zealand with assistance of a qualified mediator.  Nothing in this clause will preclude a party from seeking urgent interlocutory relief before a court.

14.2 A party will not be deemed to have waived any right under this Agreement unless that waiver is in writing and signed by a duly authorised officer of such party.  

• 14.3 You must not assign or purport to assign (whether in whole or in part) your interest under this Agreement without our prior written consent.  Any transfer of shares, issuing of new shares or other arrangement which results in a change in effective control of the Customer will be deemed to be an assignment for the purposes of this clause 14.3.  

14.4 This Agreement constitutes the complete agreement between the parties with respect to the Services.  

• 14.5 If any provision of this Agreement is, or becomes, unenforceable, illegal or invalid for any reason, this Agreement will remain in full force apart from that provision which will be deemed deleted.

14.6 This Agreement will be governed by, and construed in accordance with, the laws of New Zealand.  The parties irrevocably submit to the exclusive jurisdiction of the courts of New Zealand with respect to any legal action, suit or proceeding or any other matter arising out of or in connection with this Agreement.

• 14.7 Following termination or expiry of the Agreement, all provisions that are by their nature intended to survive, will remain in effect. 

15. Definitions‍

15.1 In this Agreement, unless the context requires otherwise: Authorised User means any of your personnel that you have authorised to access and use the Services on your behalf. Background Check means the pre-employment screening check conducted by us 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 Subscription Service, by an Authorised User. Checkmate, we, us or our means Checkmate Technology Limited. Customer, you or your means the person specified as the customer in the Application. Customer Data means the data inputted by you, Authorised Users, Candidates, Referees, or by Checkmate on your behalf for the purpose of using, or facilitating your use of, the Services. Confidential Information means all information in any form provided by either party to the other (or Authorised Users) or to which the other party (or its Authorised Users) gain access.  Documentation means the documents made available to the Customer by Checkmate online via the Website and your Application, which set out a description of [the Services, Fees and the user instructions for the Subscription Service]. Fees means the fees payable by you for the Services (as specified in the Documentation and as otherwise updated by us from time to time in accordance with this Agreement) and any other costs, fees, expenses or other amounts agreed from time to time between the parties. Intellectual Property means any intellectual property rights in existence now or coming into existence in the future anywhere in the world and includes (but is not limited to) rights in respect of copyright, trade marks (whether registered or unregistered), inventions, patents, designs (whether registered or unregistered) and know how. Professional Services means any services (other than the Subscription Service) that we agree in writing to provide to you, as specified in the Documentation. Reference Check means the collection of references in respect of a Candidate from Referees, via the Subscription Service. 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 Subscription Services and any Professional Services. Subscription Service means the subscription service we will make available to you, as specified in your Application and the Documentation. Website means www.checkmate.tech or such other web address notified by us from time to time.