Terms and Conditions
These are the terms and conditions subject to which we allow you to use Our Website. By visiting or using Our Website, or making an order for Goods or Services, you agree to be bound by them.
We are The Helm Bar & Kitchen a company registered in New Zealand number 9429032548099.
Our address is 22 Ulster Street, Hamilton 3204
GST Registration Number: 100-747-014
You are: Anyone who uses Our Website or buys any good or service from us in any circumstances.
It is now agreed as follows:
1. Definitions
“Detailed Specification”
means the written specification of the Work you have instructed us to do, and which we will prepare for your approval.
“Documentation”
means the instruction manuals user guides and other documentation which we have agreed to write.
"Intellectual Property"
means intellectual property owned by us, of every sort, whether or not registered or registrable in any country, including intellectual property of all kinds coming into existence after today; and including, among others, patents, trade marks, unregistered marks, designs, copyrights, software, domain names, discoveries, creations and inventions, together with all rights which are derived from those rights. It includes in particular the know-how, software, systems and methods we may use to perform the Work for you.
“Our Website”
means any website or service designed for electronic access by mobile or fixed devices which is owned or operated by us or any member of the The Helm Bar & Kitchen and it includes all of the hardware and software installations that enable our website to function.
“Services”
means all of the services available from Our Website, whether free or charged.
“Supporting Products”
means any physical product we supply in connection with any Service.
“Work”
means the work we do to provide the Services and Supporting products you have ordered.
2. Interpretation
Unless the context clearly requires otherwise, the interpretation of this agreement shall be subject to the matters listed below:
2.1. a reference to one gender shall include any or all genders and a reference to the singular may be interpreted where appropriate as a reference to the plural and vice versa.
2.2. a reference to a person includes a human individual, a corporate entity and any organisation which is managed or controlled as a unit.
2.3. a reference to a person includes reference to that person’s successors, legal representatives, permitted assigns and any person to whom rights and obligations are transferred or pass as a result of a merger, division, reconstruction or other re-organisation involving that person.
2.4. in the context of permission, “may not” in connection with an action of yours, means “must not”.
2.5. [except where stated otherwise], any obligation of any person arising from this agreement may be performed by any other person.
2.6. any agreement by either party not to do or omit to do something includes an obligation not to allow some other person to do or omit to do that same thing.
2.7. a reference to an act or regulation includes new law of substantially the same intent as the act or regulation referred to.
2.8. in any indemnity, a reference to costs or expenses shall be construed as including the estimated cost of management time of the indemnified party.
2.9. these terms and conditions apply to all supplies of Services and Supporting Goods by us to you. They prevail over any terms proposed by you.
2.10. this agreement is made only in the English language. If there is any conflict in meaning between the English language version of this agreement and any version or translation of this agreement in any other language, the English language version shall prevail.
3. Entire agreement
3.1. We represent, warrant and guarantee that we have the full right, power and authority to licence and distribute the Supporting Product, including all the [images, photos, animations, audio and video components, music, text, and additional applications incorporated into the Licensed Product and accompanying printed materials, if any].
3.2. If you use Our Website in any way and make an order on behalf of another person you warrant that you have full authority to do so and you accept personal responsibility for every act or omission by you.
3.3. You accept responsibility for compliance with the laws and importation procedures of your jurisdiction which might affect your right to import, export or use of the Supporting Product, and you represents that you have or will comply with all such laws and procedures.
3.4. This agreement contains the entire agreement between us and supersedes all previous agreements and understandings between the parties.
3.5. Conditions, warranties or other terms implied by statute or common law in any country are excluded from this agreement to the extent permitted by law.
3.6. In entering into this contract you have not relied on any representation or information from any source except the definition and explanation of the Services or Supported Products given on Our Website.
4. Basis of contract
4.1. Subject to these terms and conditions, we agree to provide to you some or all of the Services or Supporting Products described on Our Website at the prices we charge from time to time.
4.2. You acknowledge that you understand exactly what is included in the Services or Supporting Products and you are satisfied that the Services or Supported Products you intend to buy are suitable and satisfactory for your requirements.
4.3. So far as we allow use of our Intellectual Property, we grant a licence to you, limited to the terms set out in this agreement.
4.4. The contract between us comes into existence when we receive payment from you for a Service or Supporting Product.
4.5. We do not offer the Services and Supporting Products in all countries. We may refuse to provide Services and Supporting Products if you live in a country we do not serve.
4.6. Some of our Services and Supporting Products are now or may in future, be available to you only subject to additional terms. Those terms will be set out on Our Website. You now agree that if you choose to use any such service or supported product, the relevant terms will become part of this agreement.
4.7. If we give you free access to a Service or feature on Our Website which is normally a charged feature, and that Service or feature is usually subject to additional contractual terms, you now agree that you will abide by those terms.
4.8. We may change this agreement and / or the way we provide the Services and Supporting Products, at any time. If we do:
4.8.1 the change will take effect when we post it on Our Website.
4.8.2 you agree to be bound by any changes. If you do not agree to be bound by them, you should not use Our Website or the Services and Supporting Products we offer.
4.8.3 if you make any payment for Services and Supported Goods or Services and Supporting Products in the future, you will do so under the terms posted on Our Website at that time.
4.9. Our contract terminates on the earliest of:
4.9.1 our completion of any Work or Service and Supporting Products for which you have paid us. If there is any doubt as to when this is, or was, then our decision is final;
4.10. There is no contract between us for any free Service, so you do not become a client by using any free Service and we are not liable to you in any way resulting from your use of any free Service.
4.11. The price of any Service or Supporting Product may be changed by us at any time. We will never change a price so as to affect the price charged to you at the time when you buy that Service or Supporting Product.
4.12. You agree that you are bound by these terms (or the latest version of them) for all future contracts with us, whether ordered through Our Website or in some other way.
5. The Price
5.1. The price payable for Services / any Supporting Product that you order are clearly set out on Our Website.
5.2. The price charged for any service or supporting product may differ from one country to another. You may not be entitled to the lowest price unless you reside in the qualifying country.
5.3. Prices for Services / any Supporting Product which you may buy as a New Zealand consumer are inclusive of any applicable goods and services tax or other sales tax.
6. Payment
6.1. You will pay all sums due to us under this agreement by the means specified without any set-off, deduction or counterclaim.
6.2. Payment will be due at the completion of your order / at the point of purchase as clearly set out on Our Website.
6.3. Payment may be made by credit card, Paypal, Apple Pay, Google Pay or any other accepted payment method as specified on Our Website.
6.4. If we do not receive payment at the completion of your order or at the point of purchase you will not receive the Service / Supporting Product until you have brought your payment up to date.
6.5. Bank charges by the receiving bank on payments to us will be borne by us. All other charges relating to payment in a currency other than New Zealand dollar will be borne by you.
6.6. Any details given by us in relation to exchange rates are approximate only and may vary from time to time.
7. Acceptance of your order
This paragraph applies to Services / Supporting Products which you buy from us, without our changing them to your specific requirements:
7.1. your order is an offer to buy from us;
7.2. we shall accept your order by email confirmation. That is when our contract is made.
8. Supporting Products returned
These provisions apply in the event that you return or query any Supporting Product to us for any reason:
8.1. We do not accept returns unless there was a defect in a Supporting Product at the time of purchase, or we have agreed in correspondence that you may return it.
8.2. The Supporting Product must be returned to us as soon as any defect is discovered.
8.3. So far as possible, Supporting Product should be returned:
8.3.1 with both Supporting Product and all packaging as far as possible in their original condition;
8.3.2 securely wrapped;
8.3.3 including our delivery slip / receipt;
8.3.4 at your risk and cost.
8.4. You must tell us by email message to info@thehelm.co.nz or by phoning 07 839 2545 that you would like to return / query Supporting Product, specifying exactly which Supporting Product and when purchased, and giving full details of the defect or other reason for your query / return.
8.5. If delivery was made to a New Zealand address, you are also protected by the Fair Trading Act 1986 and the Consumer Guarantees Act 1993 as amended .
8.6. If we agree that the item is faulty, we will:
8.6.1 Replace or refund the Supporting Product as we choose.
9. Security of your credit card
We take care to make Our Website safe for you to use.
9.1. Card payments are not processed through pages controlled by us. We use one or more online payment service providers who will encrypt your card or bank account details in a secure environment.
9.2. If you have asked us to remember your credit card details in readiness for your next purchase or subscription, we will securely store your payment details on our systems. These details will be fully encrypted and only used to process your transactions which you have initiated.
10. Foreign taxes, duties and import restrictions
10.1. If you are not in New Zealand, we have no knowledge of, and no responsibility for, the laws in your country.
10.2. You are responsible for purchasing Services / Supporting Products which you are lawfully able to import or use and for the payment of import duties and taxes of any kind levied in your country.
11. Dissatisfaction with the Services
11.1. Our most important task is to ensure your absolute satisfaction. We will always strive to reach that target. However, we acknowledge that mistakes are made occasionally. This paragraph covers that possibility. If you are not wholly satisfied with the Service or Supporting Product, please tell us at the earliest opportunity:
11.1.1 exactly why you think we have failed;
11.1.2 the date, if relevant, of the failure;
11.1.3 when and how you discovered the failure;
11.1.4 the result of the failure;
11.1.5 your suggestion as to action we should take to resolve the situation and restore your faith in us.
11.2. To do this, it is essential that you contact us by email at the contact point on Our Website.
AND
11.3. You now agree that you commit a breach of this contract if you seek repayment of money paid to us by asking your credit card provider to credit back a payment made to us, without attempting to seek repayment from us first. In that event, you agree that you will owe us first the sum charged to us by our merchant service provider and secondly a sum based on time spent at $50 per hour in dealing with your breach. You also agree that this provision is reasonable.
12. Confidentiality
12.1. Both parties are aware that in the course of our Work for you, both of us will have access to and be entrusted with information in respect of the business and operation of the other, all of which information is or may be confidential.
12.2. We both now undertake for ourselves and for every employee or sub-contractor whose services we may use both during and after completion of the Work, that we will not divulge to any person whatever or otherwise make use of (and will use their best endeavours to prevent the publication or disclosure of) any trade secret or confidential information.
12.3. The provisions of the last previous sub paragraph will not apply to one of them if the other becomes subject to bankruptcy, receivership or liquidation proceedings.
13. Intellectual Property
You agree that at all times you will:
13.1. not disclose to any person the method of working or the Intellectual Property involved in our Work for you;
13.2. not cause or permit anything which may damage or endanger our title to the Intellectual Property;
13.3. indemnify us for any loss or expense arising from your misuse of the Intellectual Property;
13.4. on the expiry or termination of this agreement immediately stop using the Intellectual Property except as expressly authorised by us in writing;
13.5. not use any name or mark similar to or capable of being confused with any name or mark of ours;
13.6. so far as concerns software provided or made accessible by us to you, you will not:
13.6.1 copy, or make any change to any part of its code;
13.6.2 use it in any way not anticipated by this agreement;
13.6.3 give access to it to any other person than you, the licensee in this agreement;
13.6.4 in any way provide any information about it to any other person or generally.
13.7. not use the Intellectual Property except directly in our interest.
14. Disclaimers and limitation of liability
14.1. The law differs from one country to another. This paragraph applies so far as the applicable law allows.
14.2. All implied conditions, warranties and terms are excluded from this agreement. If in any jurisdiction an implied condition, warrant or term cannot be excluded, then this sub paragraph will be deemed to be reduced in effect, only to the extent necessary to release that specific condition, warranty or term.
14.3. Our Website and our Services / Supporting Product are provided “as is”. We make no representation or warranty that the Service or the Work will be:
14.3.1 useful to you;
14.3.2 of satisfactory quality;
14.3.3 fit for a particular purpose;
14.3.4 available or accessible, without interruption, or without error.
14.4. We make no representation or warranty that the Service or the Work we provide specifically to you will achieve the target or intended results.
14.5. We disclaim any obligation or liability to you arising directly or indirectly from information you take from Our Website.
14.6. You agree that in any circumstances when we may become liable to you, the limit of our liability is the amount you have paid us in the immediately preceding 12 month period for the Services concerned.
14.7. Except in the case of death or personal injury, our total liability under this agreement, however it arises, will not exceed the sum of $1000. This applies whether your case is based on contract, tort or any other basis in law.
14.8. We will not be liable to you for any loss or expense which is:
14.8.1 indirect or consequential loss; or
14.8.2 economic loss or other loss of turnover, profits, business or goodwill even if such loss was reasonably foreseeable or we knew you might incur it.
14.9. This paragraph (and any other paragraph which excludes or restricts our liability) applies to our directors, officers, employees, subcontractors, agents and affiliated companies as well as to us.
14.10. If you become aware of any breach of any term of this agreement by any person, please tell us by email to info@thehelm.co.nz. We welcome your input but do not guarantee to agree with your judgement.
14.11. Nothing in this agreement will be construed as limiting or excluding our liability for death or personal injury caused by our negligence.
15. Indemnity
You agree to indemnify us against all costs, claims and expense arising directly or indirectly from:
15.1. your failure to comply with the law of any country;
15.2. your breach of this agreement;
15.3. any act, neglect or default by any agent, employee, you or your customer;
15.4. a contractual claim arising from your use of the Supporting Products.
16. Termination
This agreement may be terminated:
16.1. when the Work has been delivered to you or otherwise completed.
16.2. immediately by us if you fail to pay any additional sum due upon purchase of the Work that we provide.
17. Miscellaneous matters
17.1. You undertake to provide to us your current land address, e-mail address, telephone number as often as they are changed together with all information that we may require to enable us to fulfil our obligations under this contract.
17.2. If any term or provision of this agreement is at any time held by any jurisdiction to be void, invalid or unenforceable, then it will be treated as changed or reduced, only to the extent minimally necessary to bring it within the laws of that jurisdiction and to prevent it from being void and it will be binding in that changed or reduced form. Subject to that, each provision will be interpreted as severable and will not in any way affect any other of these terms.
17.3. The rights and obligations of the parties set out in this agreement will pass to any permitted successor in title.
17.4. If you are in breach of any term of this agreement, we may:
17.4.1 publish all text and Content relating to the claimed breach, including your name and email address and all correspondence between us and our respective advisers; and you now irrevocably give your consent to such publication.
17.4.2 terminate your account and refuse access to Our Website;
17.4.3 cancel any order at our discretion;
17.4.4 issue a claim in any court.
17.5. Any obligation in this agreement intended to continue to have effect after termination or completion will so continue.
17.6. No failure or delay by any party to exercise any right, power or remedy will operate as a waiver of it nor indicate any intention to reduce that or any other right in the future.
17.7. When you visit Our Website or send messages to us by email, you are communicating with us electronically. We communicate with you by e-mail or by posting notices on Our Website. You agree that all our electronic communications satisfy any legal requirement that such communications be in writing.
17.8. Any communication to be served on either party by the other will be delivered by hand or sent by first class post or recorded delivery or by e-mail.
It will be deemed to have been delivered:
if delivered by hand: on the day of delivery;
if sent by post to the correct address: within 72 hours of posting;
if sent by e-mail to the address from which the receiving party has last sent e-mail: within 24 hours if no notice of non-receipt has been received by the sender.
17.9. In the event of a dispute between the parties to this agreement, then they undertake to attempt to settle the dispute by engaging in good faith with the other in a process of mediation before commencing arbitration or litigation.
17.10. This agreement does not give any right to any third party.
17.11. Neither party will be liable for any failure or delay in performance of this agreement which is caused by circumstances beyond its reasonable control, [including any labour dispute between a party and its employees].
17.12. The validity, construction and performance of this agreement shall be governed by the laws of New Zealand.
If you have any questions regarding the Terms & Conditions of our site please contact us via the Contact page