CHECKMATE MANAGEMENT LIMITED: CONDITIONS OF SALE OF GOODS AND SERVICES: 2007

1.           Interpretation

1.1          In these Conditions the following words have the following meanings:
Checkmate means Magnetic North Software Ltd T/A Checkmate Management (registered number 3637644, VAT number GB 705 3370 60 registered office Solutions House, Meridian Business Park, Leicester LE19 1TP.
Conditions means the standard terms and conditions set out in this document
Contract means the contract between Checkmate and the Customer for the sale and purchase of the Goods and/or the Services as the case shall be.
Documentation means the manuals and any other items of documentation for use in connection with the Equipment and/or the Software.
Customer means the person(s) or company whose order for the Goods or Services is accepted by Checkmate
Equipment means the items of equipment which Checkmate is to supply in accordance  with these Conditions.
Goods means any item(s) of Equipment and/or Software supplied by Checkmate in accordance with these Conditions.
Place of Use means that part of the Customer's premises to which the Equipment is to be delivered or to be delivered and installed as the case may be.
Purchase Price means the price stated in any price list, or written quotation or tender submitted by Checkmate or on Checkmate's acknowledgement of order and shall be exclusive of any applicable value added tax or other sales tax which the Customer shall be additionally liable to pay to Checkmate as appropriate.
Services means the installation of the Goods, consultancy, development, training and technical support services.
Software means any software supplied by Checkmate in accordance with these Conditions
Take Over means either the date upon which Checkmate notifies the Customer that the Equipment is in working order or the date upon which the Customer commences use of the Equipment whichever is the earlier.

1.2          Any reference in these Conditions to the neuter includes the masculine and feminine and any reference to the singular includes the plural and vice versa if the context so requires.

1.3          Any reference in these Conditions to any provision of a statute shall be construed as a reference to that provision as amended re-enacted or extended at the relevant time.

1.4          The headings to Conditions in this Contract are for convenience only and shall not affect their construction.

2.           Basis of the Sale

2.1          Subject to any variation under Condition 2.7 these Conditions form part of the Contract to the exclusion of all other terms and conditions (including any terms and conditions which the Customer purports to apply under any purchase order, confirmation of order or similar document).

2.2          Each order for the Goods or Services by the Customer from Checkmate shall be    deemed to be an offer by the Customer to purchase subject to these Conditions.

2.3          No terms or conditions endorsed upon, delivered with or contained in the Customer's purchase order, specification or similar document will form part of this Contract simply as a result of a reference to such document in this Contract.

2.4          Any advice or recommendation given by Checkmate or its employees or agents to the Customer or the Customer's employees or agents as to the storage, application, use or suitability of the Goods for the needs of the Customer which is not confirmed in writing by Checkmate is followed or acted upon entirely at the Customer's own risk and accordingly Checkmate shall not (unless the advice was fraudulent) be liable for any such advice or recommendation which is not so confirmed.

2.5          Save as otherwise agreed  in writing the Customer shall be responsible for ensuring that the Goods are suitable for the needs of the Customer.

2.6          Any typographical clerical or other error or omission in any sales literature quotation price list acceptance of offer order acknowledgement invoice or other document or information issued by Checkmate shall be subject to correction without any liability  on the part of Checkmate.

2.7          Any variation to these Conditions and any representations about the Goods or Services shall have no effect unless expressly agreed in writing and signed by a director of Checkmate.

3.           Orders and Specifications

3.1          No order submitted by the Customer shall be deemed to be accepted by Checkmate unless and until a written acknowledgement of order is issued by Checkmate or (if earlier) Checkmate delivers the Goods or Services to the Customer.

3.2          The Customer  must ensure that the terms of its order (including any applicable specification) are complete and accurate and is responsible for giving Checkmate any necessary information relating to the Goods or Services within a sufficient time to enable Checkmate to perform the Contract in accordance with its terms.

3.3          The quantity quality and description of and any specification for the Goods shall be those set out in Checkmate's written quotation or tender (if accepted by the Customer) or in Checkmate's order acknowledgement.

3.4          Checkmate reserves the right to make any changes in the specification of the Goods which do not materially affect the performance of the Goods.

3.5          Save as provided in Condition 4.4 below no order which has been accepted by Checkmate may be cancelled by the Customer except with the agreement in writing of Checkmate and on terms that the Customer shall indemnify Checkmate in full against all loss (including loss of profit) costs (including the cost of all labour and materials used) damages charges and expenses (in each case whether direct or indirect) suffered or incurred by Checkmate as a result of such cancellation.

3.6          The Customer is responsible for ensuring that its operating environment conforms    to the minimum requirements set out by Checkmate at the time of sale in order   that Checkmate may carry out the Services or install the Goods  purchased by the Customer. Checkmate shall have no responsibility for extra expenses the Customer may incur by reason of having to install sub-base environment equipment, and the Customer shall accept all such charges that may ensue as a result.

3.7          All drawings, descriptive matter, specifications and advertising issued by Checkmate and any descriptions or illustrations contained in Checkmate's (or any manufacturer's) catalogues or brochures  are issued or published for the sole purpose of giving an approximate idea of the Goods or Services described in them. They will not form part of this Contract.

4.           Price

4.1          The price payable by the Customer shall be the Purchase Price.

4.2          Until an order has become binding on Checkmate, that is when any written quotation or tender has been accepted by the Customer or the order acknowledgement has been signed by and on behalf of Checkmate the Purchase Price shall be subject to change without prior notice.

4.3          In the case of a written quotation or tender the Purchase Price set out shall remain fixed for a period of one month upon the expiry of which the Purchase Price may be subject to change.

4.4          Where an order has become binding on Checkmate as provided in Condition 4.2 above if the Goods shall include items supplied to the Customer at a price listed in Checkmate's standard price list Checkmate may vary the Purchase Price to include any change in the standard price list provided that the Customer shall have been notified in writing before delivery of the Goods.   Where such change results in any increase in the Purchase Price the Customer shall have the right (at no cost) to cancel the Contract by giving notice in writing to Checkmate at any time before delivery of the Goods.

4.5          Checkmate reserves the right by giving written notice to the Customer at any time before delivery of the Goods to increase the Purchase Price to reflect any increase in the cost to Checkmate which is due to any factor beyond the control of Checkmate (such as without limitation any foreign exchange fluctuation currency regulations alteration of duties significant increase in the costs of labour materials or other costs of manufacture  any change in delivery dates quantities or specifications for the Goods which is requested by the Customer or any delay caused by any instructions of the Customer or failure of the Customer to give Checkmate adequate information or instructions).

4.6          The Purchase Price is given on the basis that delivery will be madeEx  Works – (Checkmate's premises) (Incoterms 2000) and where delivery is to be made other than at Checkmate's premises the Customer shall pay Checkmate's charges for export duties, transport, packaging, loading, unloading and insurance in addition when it is due to pay for the Goods.

4.7          Where Services such as training are ordered, the Customer acknowledges that  Checkmate may incur additional costs should those services subsequently be re-scheduled and that the Customer shall be liable for such additional charges

5.           Terms of Payment

5.1          Checkmate shall be entitled to invoice the Customer for the Purchase Price before, on or after delivery or deemed delivery of the Goods or performance of the Services.

5.2          Unless the Customer has completed a Checkmate credit account application form and received written confirmation from Checkmate of approval of this  application, the Customer shall pay the Purchase Price of the Goods in advance of the date of delivery of the Goods . In the event that the Customer has a credit account, the Customer shall pay the purchase price of the Goods within 30 days of the date of Checkmate's invoice.

5.3          Payment for any Services (including training) shall be due in full in advance of the provision of such Services, whether or not the Customer has a credit account.

5.4          Payment shall be made in pounds sterling by bank transfer to the account of Checkmate Management Ltd at the Bank of Scotland, Leicester; sort code 12-08-81 account number 06029552 or such other bank as Checkmate may nominate.

5.5          Time for payment shall be of the essence.

5.6          No payment shall be deemed to have been received until Checkmate has received cleared funds    

5.7          If the Customer fails to make any payment on the due date then without prejudice to any right or remedy available to Checkmate,  Checkmate shall be entitled to:-

5.7.1      Charge the Customer interest (both before and after judgement) on the amount  unpaid at the annual rate of 8% above the official dealing rate of the  Bank of  England  from time to time until payment in full is made (a part of a month being treated as a full month for the purposes of calculating interest).

5.7.2      Suspend, delay or withhold delivery under the Contract or cancel any other contract between Checkmate and the Customer and retain any progress payments or payments on account already received under the Contract or under any other contract between Checkmate and the Customer.

5.8          Checkmate may appropriate any payment made by the Customer to Checkmate to such of the Goods and/or Services as Checkmate thinks fit despite any purported appropriation by the Customer.

5.9          The Customer shall not be entitled to make any deductions from any sums due to Checkmate whether by way of set-off, counterclaim or otherwise and whether under the Contract or any other contract, agreement or arrangement between Checkmate and the Customer.

6.           Telecommunications

6.1          Where the Equipment is to be connected to a telecommunications network or a circuit run by Checkmate or a third party (the "Network" ) the Customer shall be responsible for:

6.1.1      obtaining all necessary consents of the owner of the Network (the "Owner" ) for the connection of the equipment to the Network;

6.1.2      purchasing and installing all equipment necessary to make the said connection to the Network;

6.1.3      paying all charges from time to time levied by the Owner for connection to the Network;

6.1.4      at all times complying with such technical and other regulations that the Owner shall impose as a condition of connection to the Network.

6.2          Checkmate will use all reasonable endeavours to ensure that the Equipment has been approved by the Secretary of State for Trade and Industry or any person to whom he has delegated his powers (the "Authority" ) for connection to the Network but reserves to itself the right to make such alterations modifications or additions to the Equipment at the Customer's expense that the Authority may require as a continuing condition of such approval.

6.3          Checkmate shall not be liable for any loss or damage resulting from the acts or omissions of the Owner or the breach by the Customer of its obligations under clause 6.1.

6.4          Installation of the Equipment under the Contract does not include connection to the Network.

7.           Place of Use

7.1          The Customer shall at its own expense:

7.1.1      obtain all necessary consents for the installation and use of the Equipment including any planning or building regulations consents which may be required for the alteration to the Place of Use or any other building or premises of the Customer;

7.1.2      ensure that any floor loading limits will not be exceeded;

7.1.3      provide a suitable environment accommodation and foundations for the Equipment including all necessary trunking conduits and cable trays in accordance with installation standards;

7.1.4      provide such electric power as shall be required by Checkmate for the purposes of installing, testing and maintaining the Equipment;

7.1.5      provide a suitable and safe working environment for Checkmate personnel;

7.1.6      prepare the Place of Use in advance of the installation of the Equipment which shall include the taking up or removal of any fitted or fixed floor covering, ceiling tiles, suspended ceilings, partition covers or any other necessary alterations to the Customer's premises.

7.2          Checkmate shall have no liability to the Customer in respect of late or partial delivery where the same results from the Customer's failure to prepare the Place of Use in accordance with Condition 7.1 above in a timely manner.

8.           Access

8.1          The Customer shall provide Checkmate at all reasonable times with full and convenient access to the Place of Use and any other premises of the Customer for the purpose of carrying out Checkmate's obligations under this Contract.  Such access will normally only be required during the Customer's usual working hours but Checkmate may upon prior written notice to the Customer require the Customer to provide access at other times.   Where the Customer requires Checkmate to work outside the usual working hours of the Customer the Customer shall pay to Checkmate over and above the Purchase Price such reasonable charges as Checkmate shall incur in complying with any such request.

8.2          All employees of Checkmate shall observe the Customer's reasonable site regulations which shall have been previously advised in writing by the Customer to Checkmate.  In the event of any conflict between such site regulations and these Conditions the latter shall prevail.

9.           Delivery/Take Over

9.1          Delivery of the Goods shall take place at Checkmate's premises unless some other place of delivery is agreed by Checkmate in writing.        

9.2          Checkmate shall notify the Customer when the Goods are ready for delivery.

9.3          The Goods shall be delivered by such means as Checkmate thinks fit unless the Customer specifies in its order the details of a contract with a carrier which it reasonably requires having regard to the nature of the Goods and the other circumstances of the case. The carrier shall be deemed to be the Customer's agent except for the purposes of sections 44, 45 and 46 of the Sale of Goods Act 1979.

9.4          Delivery of the Goods shall be accepted at any time of day.

9.5          Subject to the other provisions of these Conditions Checkmate will not be liable  for any loss (including loss of profit), costs, damages, charges or expenses caused  directly or indirectly by any delay in delivery  of the Goods (even if caused by Checkmate's negligence).

9.6          If the Customer fails to take delivery of any of the Goods when they are ready for delivery or to provide any instructions, documents, licences or authorisations required  to enable the Goods to be delivered in time (except because of Checkmate's fault):-

9.6.1      risk in the Goods will pass to the Customer (including for loss or damage caused by Checkmate's negligence);

9.6.2      the Goods will be deemed to have been delivered; and

9.6.3      without prejudice to its other rights Checkmate may:-

9.6.3.1      store or arrange for the storage of the Goods until actual delivery or sale and charge the Customer for all related costs and expenses (including storage and insurance)

9.6.3.2      sell any of the Goods at the best price reasonably obtainable in the circumstances and  charge the Customer for any shortfall below the price under this Contract.

9.7          Where appropriate the Customer will provide at its expense adequate and appropriate equipment and manual labour for off loading the Goods.

9.8          Where the Services form part of the Contract Checkmate shall carry out any tests which in its absolute discretion may be necessary to ensure that any equipment is in working order.

9.9          Any minor faults which do not materially affect the performance of the Equipment  shall not prevent Take Over by the Customer provided that such minor faults shall be  remedied by Checkmate within a reasonable time.

9.10       Non delivery:

9.10.1    the quantity of any consignment of Goods as recorded by Checkmate upon  despatch from Checkmate's place of business shall be conclusive evidence of the quantity received by the Customer on delivery unless the Customer can provide  conclusive evidence to the contrary.

9.10.2    Checkmate shall not be liable for any non delivery of Goods (even if caused by  Checkmate's negligence) unless written notice is given to Checkmate within  4 days of the date when the Goods would in the ordinary course of events have been  received.

9.10.3    any liability of Checkmate for the Goods shall be limited to replacing the Goods within a reasonable time or issuing a credit note at the pro rata rate against any invoice  raised for such Goods.

9.10.4    a signature of qualified acceptance on a carrier's delivery note shall not be written notice to Checkmate for the purposes of these Conditions. 

10.         Risk and Property

10.1       Risk of damage to or loss of Goods shall pass to the Customer at the time of delivery or deemed delivery to the Customer or its agent ( subject to Condition 9.6)and subject  to any deterioration in the Goods necessarily incident to the course of transit passing to the Customer.

10.2       Property in the Goods shall not pass to the Customer  until Checkmate has received in full (in cash or cleared funds) all sums due to it in respect of :-

10.2.1    the Goods; and

10.2.2    all other sums which are or which become due to Checkmate on any account.

11.         Limited Warranty:

11.1       Subject to the limitations upon its liability set out in Condition 12 below Checkmate warrants to the Customer that:-

11.1.1    subject to Conditions 11.5 and 11.6 the Equipment shall for a period of 12 months either from the date of delivery or Take Over (whichever shall be the later) be  of satisfactory quality; and

11.1.2    it will perform the Services with reasonable care and skill.

11.2       The warranty in Condition 11.1 above is given by Checkmate subject to the following Conditions:

11.2.1    the Customer has properly kept used and maintained the Equipment in strict accordance with any instructions of the manufacturer or Checkmate and has not modified the Equipment except with the prior written consent of Checkmate;

11.2.2    the Customer has made no further use of the Equipment after discovering any defect

11.2.3    the Customer has not altered or repaired the Equipment without the prior written consent of Checkmate.

11.2.4    Checkmate shall be under no liability in respect of any defect in the Equipment arising from any design or specification supplied by the Customer;

11.2.5    Checkmate cannot guarantee that the Software or emails sent by Checkmate will be free of all known viruses or malicious code.  The Customer is therefore advised to carry out appropriate virus and other checks.

11.2.6    in the case of delivery only the Customer shall be required to return defective Equipment to Checkmate unless Checkmate otherwise agrees in writing.

11.3       The Customer shall afford Checkmate all facilities requested by Checkmate to enable it to investigate any alleged breach of warranty.

11.4       If the Customer makes a valid claim against Checkmate based on a defect in the quality of the Goods Checkmate shall at its option:-

11.4.1    repair or replace such Goods (or the defective part) or refund the price of such Goods at the pro rata contract rate provided that if Checkmate so requests the Customer shall at the customer's expense return the Goods or such part of the goods as is defective to Checkmate; or

11.4.2    if Checkmate has not manufactured the Goods or the part of the Goods which is defective at the Customer's request assign to the Customer such assignable rights (if any) as Checkmate has against its own supplier of the Goods or the relevant part of the Goods.

11.5       The warranty set out in Condition 11.1 above excludes the Software and Checkmate does not warrant that the Software shall be free of all defects or that its use will be uninterrupted.  In particular the Customer acknowledges that access to the Software, to the extent it is provided prior to Checkmate receiving payment in full for the Software will be restricted by the use of certain temporary key codes, which will expire in the event that payment is not received in full.  The key codes may also restrict access to certain functionality in the Software.  Once payment in full has been received by Checkmate, more permanent key codes will be issued by Checkmate, to last for the duration of the relevant contract.

11.6       Checkmate reserves the right to make a reasonable charge for any visit to any premises of the Customer which is made at the request of the Customer where either no defect is discovered or the defect is not covered by the warranty set out in Condition 11.1 above.

12.         Limitation of Liability

12.1       Subject to Conditions 11.1 and 11.5 and to the maximum extent permissible in law, all conditions and warranties which are to be implied by statute or otherwise by general law into this Contract or relating to the Goods and/or Services are hereby excluded.

12.2       Checkmate's charges to the Customer are determined on the basis of the exclusions from and limitations of liability contained in this Contract. The Customer expressly agrees that these exclusions and limitations are reasonable because of (amongst other matters) the likelihood that the amount of damages awardable to the Customer for a breach by Checkmate of these Conditions may be disproportionately greater than the price of the Goods or Services. Checkmate is willing to arrange for additional insurance cover to enable Checkmate to take on the burden of additional liability to the Customer provided that the Customer pays Checkmate a commensurately higher price for the Goods or Services. If the Customer wishes Checkmate to obtain a quotation for additional insurance cover accordingly the Customer should notify Checkmate prior to this Contract being entered into.

12.3       The following provisions in this Condition 12 set out Checkmate's entire liability (including any liability for the acts and omissions of its employees, agents or sub-contractors) to the Customer in respect of:

12.3.1    a breach of Checkmate's contractual obligations;

12.3.2    a tortious act or omission of Checkmate (including negligence) for which Checkmate is liable; or

12.3.3    an action arising out of a misrepresentation by or on behalf of Checkmate

12.4       the total liability which Checkmate shall owe to the Customer and in respect of all claims shall not exceed the contract price or the sum of £5,000, whichever is the lesser. 

12.5       Checkmate shall not be liable to the Customer for any of the following heads of loss (in each case whteher direct or indirect):

12.5.1    Loss of profit or revenue;

12.5.2    Loss of business;

12.5.3    Pure economic loss;

12.5.4    Loss of data;

12.5.5    Any losses arising as a result of a third party bringing a claim against the Customer.

12.6       Checkmate shall in no circumstances be liable to the Customer for any special, consequential or indirect Loss however arising.

12.7       the Customer shall only be entitled to bring a claim against Checkmate where the Customer issues legal proceedings against Checkmate within the period of 6  months commencing on the date this Contract was made.

12.8       Notwithstanding anything to the contrary in these Conditions Checkmate's liability to the Customer for fraud or for death or personal injury resulting from the negligence of Checkmate, its employees, agents or sub-contractors shall not be limited, save that nothing in this Condition 12 shall confer a right or remedy upon the Customer to which the Customer would not otherwise be entitled.

12.9       The exclusions from and limitations of liability set out in this Condition 12 shall be considered severably. The invalidity or unenforceability of any one Condition, sub- clause, paragraph or sub-paragraph shall not affect the validity or enforceability of any other part of this Condition.

12.10     The provisions of this Condition 12 shall survive the termination of the whole or a  part of this Contract.

13.         Intellectual Property Rights

13.1       All copyright, database right trademarks and other intellectual property rights in the Goods, Services and Documentation shall remain the exclusive property of Checkmate or any licensor of Checkmate or the manufacturer of the Goods if not Checkmate.

13.2       Checkmate shall grant to the Customer a non-exclusive non-assignable licence to use the Software on Checkmate's terms, subject to the observance of the following conditions:

13.2.1    the Customer shall not reproduce the Software save to the extent that it is strictly necessary for back-up purposes;

13.2.2    the reproduction permitted under Condition 13.3.1 above shall be in object code form only;

13.2.3    the Customer shall keep the Software and Documentation and any key codes or passwords used to access the Software confidential and any disclosure of the Software and Documentation shall only be made to the extent that it is strictly necessary ;

13.2.4    the Customer shall be solely responsible for ensuring that the terms of this Condition 13.3 are fully observed and that any of its employees agents or any other persons are permitted access to the Software and Documentation only to the extent that it is strictly necessary.

13.2.5    The Customer shall pay the Purchase Price to Checkmate and Checkmate reserves the right to terminate the Customer's use of the Software in the event that the Purchase Price is not paid by the due date.  To the extent access is dependent upon temporary key codes, these are liable to expire (meaning that the customer will no longer be able to access the Software) if payment in full is not received by the due date.

13.3       No modifications to the Software shall be made by the Customer without the prior written consent of Checkmate and all copyright trademarks and other intellectual property rights in any permitted modifications shall vest in Checkmate or any licensor of Checkmate.

13.4       The Customer shall sign any agreement reasonably required by Checkmate or any licensor of Checkmate for the purpose of protecting the Software.

13.5       The Customer shall take all such steps as shall be necessary to protect the copyright in the Documentation and without prejudice to the generality of the foregoing shall not copy reproduce distribute or disclose the same (except for the purpose for which it was supplied) without the prior written consent of Checkmate.

13.6       The Customer undertakes to make its employees agents and sub-contractors aware of the provisions of this Condition 13 and to use its best endeavours to ensure that its employees, agents and sub-contractors comply to the fullest extent with this Condition 13.

13.7       The provisions of this Condition 13 shall not apply to the extent that they are inconsistent with any other Software licence or agreement made between Checkmate and the Customer.

14.            Intellectual Property Rights Indemnity

14.1   Checkmate shall indemnify the Customer against any damages (including costs) that may be awarded or agreed to be paid to any third party in respect of any claim or action that the Customer's use of or possession of the Goods infringes the patent,  copyright, registered design or trademark rights of such third party (the  "Intellectual  Property Infringement" ) provided that the Customer shall:

14.1.1        notify Checkmate in writing of any Intellectual Property Infringement immediately upon becoming aware of the same;

14.1.2        give Checkmate the sole conduct of the defence to any claim or action in respect of any Intellectual Property Infringement and not at any time admit liability or otherwise attempt to settle or compromise the said claim or action except upon the express instructions in writing of Checkmate;

14.1.3        act in accordance with the reasonable instructions of Checkmate and give to Checkmate such assistance as it shall reasonably require in respect of the conduct of the said defence including without prejudice to the generality of the foregoing the filing of all pleadings and other court process and the provision of all relevant documents.

14.2  Checkmate shall reimburse the Customer its reasonable costs incurred in complying with Condition 14.1.3 above.

14.3  The indemnity in Condition 14.1 above shall not apply to any Intellectual Property Infringement where;

14.3.1        the Intellectual Property Infringement was occasioned by the Customer's use of the Goods in conjunction with other apparatus or software which has not been supplied by Checkmate nor where the Intellectual Property Infringement results from the use of the Customer's own design or specification.

14.3.2        where Condition 14.3.1 above applies the Customer shall indemnify Checkmate against all claims proceedings costs claims demands and expenses arising from any such Intellectual Property Infringement.

15.       Force Majeure

15.1            Checkmate shall not be liable for any breach of its obligations under the Contract which results from any of the following:

(i)       Act of God;

(ii)      outbreak of hostilities riot civil disturbance acts of terrorism;

(iii)     the act of any government or authority (including refusal or revocation of any licence or consent);

(iv)    fire explosion flood or bad weather;

(v)     power failure of telecommunications lines or failure or breakdown of plot machinery or vehicle;

(vi)    default of Checkmate's suppliers or sub-contractors;

(vii)   theft malicious damage strike or other industrial action; and

(viii)  any cause or circumstance whatsoever beyond Checkmate's reasonable control.

16.              Confidentiality

16.1  The Customer shall keep and procure to be kept secret and confidential all information disclosed or obtained as a result of the relationship of the parties under the Contract and shall not use nor disclose the same save for the purposes of the proper performance of the Contract or with the prior written consent of the Customer.

16.2  The obligations of confidentiality in this Condition shall not extend to any matter which the Customer can show is in, or has become part of, the public domain other than as a result of a breach of the obligations of confidentiality under these Conditions; was in its written records prior to entering into the Contract; was independently disclosed to it by a third party entitled to disclose the same or is required to be disclosed under any applicable law, or by order of a court or governmental body or authority of competent jurisdiction.

16.3   The Customer shall not make any announcement or otherwise publicise the existence of or disclose to any person the provisions of the Contract without the prior written consent of Checkmate.  Checkmate may disclose the name of the Customer and the existence of this Contract in relevant marketing material (including on its website and in press releases) unless specifically otherwise agreed between the parties in writing.

17.               Non-Solicitation

The Customer undertakes that during the term of any Contract and for the period of 6 months after its termination, it shall not solicit or attempt to solicit services from any employee of Checkmate, nor make any offer of employment or enter into any discussion or negotiations with a view to making any offer of employment to any person employed by Checkmate.

18.             General:

         
18.1 The Contract shall be personal to the Customer and shall not nor shall any rights under it be assigned by the Customer without the prior written consent of Checkmate.

18.2  Each right or remedy of Checkmate under this Contract is without prejudice to any other right or remedy of Checkmate whether under this Contract or not.

18.3   If any provision of these Conditions should be found by any court or administrative body of competent jurisdiction to be invalid or unenforceable the invalidity or unenforceability  of such provision shall not affect the other provisions of these Conditions and all provisions not affected by such invalidity or unenforceability shall remain in full force and effect.

18.4   No waiver by Checkmate of any breach of the Contract by the Customer shall be  considered a waiver as of any subsequent breach of the same or any other provision.

18.5  This Contract and the documents referred to in it constitutes the entire agreement and understanding of the  parties and supercedes any previous agreements between the parties relating to the subject matter of this Contract. Each of the parties acknowledges and agrees that in entering into this Contract and the documents referred to in it, it does not rely on and shall have no remedy in respect of any statement, representation, warranty or understanding (whether negligently or innocently made) of any person (whether party to this agreement or not) other than as expressly set out in this agreement as a warranty. The only remedy available to it for breach of the warranties shall be for breach of contract under the terms of this Contract. Nothing in this Condition shall however operate to exclude or limit any liability for fraud.

18.6  No person who is not a party to this contract (including any employee or agent of either party) shall have the right to enforce any term of this Agreement whether pursuant to the Contract (Rights of Third Parties) Act or otherwise.

18.7   The Contract and these Conditions shall be governed by English law and the Customer consents to the non-exclusive jurisdiction of the English courts in all matters regarding it.