Spark Mobile Prepaid Agreement

Spark Mobile Prepaid Agreement

Spark Mobile Prepaid Agreement

Updated: 4 May 2017

Updated: 4 May 2017

Updated: 4 May 2017

  1. Our agreement
  2. Interpretation
  3. Commencement of agreement
  4. Provision of Services
  5. Mobile phone numbers
  6. Wireless data and content
  7. Mobile phone and SIM
  8. Charges and your account
  9. Withholding, suspending or restricting services
  10. Giving up or ending services
  11. Compensation and Liability
  12. Force Majeure
  13. Information about you
  14. Changing these terms
  15. Sending notices
  16. Meeting our responsibilities through agents and service providers
  17. Transferring our responsibilities
  18. Severability
  19. Waiver
  20. Governing Law

1. Our agreement

1. If you have a Spark Prepaid connection that operates on our Network (for example, a prepaid pack) then you are a Spark customer and you will need to read this Spark Mobile Prepaid agreement set out below and applicable Spark Mobile Service specific terms and conditions (“Service Terms”) set out on Spark Website (together, “agreement”) which govern our contractual relationship with you for the provision of Spark Prepaid Services on our Network.

2. This agreement applies to all new Spark Prepaid customers who have signed up for Services on and from 16 March 2015. If you signed up for our Services before 16 March 2015 the Mobile Prepaid Agreement dated 1 February 2011 applies to you.

3. We may amend this agreement from time to time in accordance with clause 14 below. The latest version of the agreement will always be published on the Spark Website. Please check the Spark Website regularly for updates.

4. Depending on what Spark Prepaid Services you decide to purchase from us, you will also be bound by the specific terms and conditions published on the Spark Website relating to your Prepaid Plan and any specific terms and conditions relating to the Services you use, like mobile data services. If there is any conflict or inconsistency between:

  • the terms and conditions set out in this agreement; and
  • the terms and conditions relating to your Prepaid Plan or the specific terms and conditions relating to the Services you use, then the terms and conditions referred to in paragraph (b) will prevail.

2. Interpretation

This agreement contains various words and expressions that have defined meanings. These defined words and expressions have the meanings set out below.

  • "Additional Services" means optional services offered by us in connection with the Spark Prepaid Services (such as data, SMS, Roaming, Caller Tunes, Cellular Secretary, Video Calling and Your Spark on device) which may incur a fixed monthly Charge and/or other casual Charges. You can find more information about these services, including which ones are available to you and the Charges for using them, on the Spark Website
  • "Charges" means charges for access to and use of the Services
  • "Content" means information, images and sounds, communications, software or any other material made available through the Services and includes wireless data and internet content
  • "Fair Use Policy" means a fair use policy as referred to in clause 4.8, as amended from time to time
  • "LMNP Terms" means the Terms for Local and Mobile Number Portability in New Zealand, as amended from time to time
  • "Mobile Phone" means the mobile phone or other telecommunications device (which incorporates a SIM) which operates on our WCDMA Network and is used by you to access the Services
  • "Mobile Service Provider" means a provider of mobile telecommunication services
  • "Network" means the telecommunications system owned by us and/or other Spark Companies which we use to provide the Services to you and other customers
  • "PIN" means a personal identification number which is necessary for protection from non-sanctioned access to your SIM
  • "Port" or "Porting" means the process of transferring your mobile phone number from one Mobile Service Provider to another Mobile Service Provider
  • "Prepaid Plan" means the relevant Spark Prepaid Service pricing plan you choose from time to time
  • "PUK1 Code" means a personal unblocking key code which can unblock your SIM
  • "Roaming" means an Additional Service that allows you to use your Mobile Phone in countries other than New Zealand
  • "Services" means the mobile telecommunication services offered by us to you under this agreement, including the Additional Services, and anything else we do or provide in connection with those mobile telecommunication services, which may or may not incur a Charge
  • "SIM" means any SIM that we may have provided to you which enables you, when used with a Mobile Phone, to access the Services on our WCDMA Network
  • "SMS" means a short message service, which is a form of text messaging on Mobile Phones
  • "Spark Company" means Spark New Zealand Trading Limited or any company which is a direct or indirect subsidiary of Spark New Zealand Limited
  • "Spark Customer Services" means Spark Customer Services, which is contactable on 0800 800 163, or on *123 from your Mobile Phone, or by using such other contact details which are updated by us on the Spark Website
  • "Spark Prepaid Account" means the account which records details of the amount of credits you have available from time to time
  • "Spark Prepaid Services" means voice, SMS, data and any other Services provided by us where you pay the Charges in advance by purchasing credit before using the Services
  • "Spark Website" means our website at www.spark.co.nz or such other website that we notify you of from time to time
  • "we", "our" or "us" means Spark New Zealand Limited
  • "you" or "your" means the customer who is party to this agreement.

3. Commencement of agreement

This agreement starts when you are first allocated a Spark mobile phone number to use with your Spark Prepaid Account or when you first credit your Spark Prepaid Account or when you first use the Services, whichever happens first.

4. Provision of Services

1. Spark Prepaid Services allow you to make and receive most local, national and international calls (when within our Network coverage area) using a capable Mobile Phone, and access a range of other Services such as texts and data. You will need a SIM to be able to connect to our Network and use the Services.

2. We will try our best to provide quality Services to you at all times and with reasonable care and skill. Because of the nature of mobile telecommunications, at times our ability to do so will be affected by factors outside of our control including, but not limited to, geographic conditions and physical obstructions, weather conditions, the number of people trying to use our Network at the same time or faults in our Network or other networks used by us to provide the Services to you as well as our Services’ reliance on systems and other services that we do not own or control. We, therefore, cannot promise or guarantee that our Services will be continuous or fault-free or available at a particular location.

3. The quality, speed and coverage of the Services also depends partly on your Mobile Phone, partly on our Network and partly on other telecommunications networks.

4. The Services may also be unavailable at times due to maintenance, repairs, upgrades or modifications to our Network or other networks used by us to provide the Services to you. Where it is within our control, we will try our best to keep such unavailability to a minimum.

5. Roaming relies on the use of overseas telecommunication networks which we do not control and therefore we cannot offer any guarantees about the quality of Roaming services. Some Services, such as video calling, may not be available while Roaming. The use by you of overseas telecommunication networks will be subject to the terms and conditions of the relevant network operator. Those terms and conditions will apply in addition to the terms and conditions contained in this agreement.

6. You agree to:

a. comply with all your obligations in this agreement;

b. provide us with all information we reasonably request in connection with this agreement and make sure that all information you give to us or to any third party retailer is accurate and complete;

c. keep confidential, and do not disclose to any other person, any PIN or other access code feature used by, or allocated to, you in connection with the Services;

d. do not use your Mobile Phone or the Services in a way that is abusive or offensive or for an illegal, immoral or fraudulent purpose;

e. do not use your Mobile Phone or the Services in a way that interferes with any other person's use of the Services;

f. do not use your Mobile Phone or the Services to spam, mail bomb, publish any unlawful material, harvest information about others, create a false identity, access or upload any Content which breaches a third party right, or any other similar activity;

g. use only Mobile Phones and accessories approved for use with our Network and which comply with all relevant legislation and regulations (for example, those that you’ve purchased directly from us or from our authorised retailers);

h. do not connect a SIM you have obtained from us to any other telecommunications network.

i. follow the instructions and guidelines (including any Fair Use Policies) we give you about the use of the Services and your Mobile Phone;

j. do not do anything or introduce anything (including any virus) that may damage or harm our Network or equipment or any third party's network or equipment;

k. authorise us to conduct a credit check on you from time to time when we consider, acting reasonably and in good faith, that it is appropriate;

l. do not sell or otherwise make the Services available to others or commercially exploit the Services or any Content in any way;

m. agree that using the Services does not give you any rights in any part of our Network;

n. never interfere with any part of our Network unless you have been authorised in writing by us to do so;

o. authorise us or a person approved by us to remotely access your Mobile Phone in order to perform any tasks that in our opinion are reasonably necessary to protect you or our other customers, or to maintain, alter or protect the integrity or performance of our Network or our Services or where we have been directed to do so by law;

p. comply with the terms of any loan agreement that you have with us relating to any Mobile Phone or other equipment you rent from us, or which is loaned to you; and

q. that you may not transfer any benefit or obligation of this agreement it to any other person.

7. You agree to make sure everyone who uses your Mobile Phone or SIM complies with the obligations and responsibilities set out in clause 4.6.

8. Some of our Services are subject to fair use policies, which are set out in the specific terms and conditions relating to those Services. We may enforce our fair use policies from time to time where, in our reasonable opinion and acting in good faith, your usage of the Services is excessive and/or unreasonable. We do this in order to help prevent fraud and to ensure that excessive use of the Services doesn’t prevent our other customers from enjoying the Services. From time to time we may publish new fair use policies in respect of some or all of the Services. Where we do this we will notify you beforehand. If you do not agree to with any new fair use policy you may exercise your right to terminate this agreement.

5. Mobile phone numbers

1. Unless you Port a mobile phone number to us or you have an existing Spark mobile phone number which can be used with your Mobile Phone or SIM, we will allocate a mobile phone number to you for use with your Mobile Phone or SIM on our Network. The mobile phone number does not belong to you and you may not sell or otherwise transfer it. Any disputes regarding the allocation of mobile phone numbers will be determined by us, acting reasonably and in good faith, and taking the particular facts of each case into consideration, and our decision will be final.

2. In exceptional circumstances, where there are no alternative solutions available, we may be required to change the mobile phone number you use with your Mobile Phone or SIM. Where we are required to change your allocated mobile phone number we will try and give you notice of this change.

3. If you wish to Port your allocated mobile phone number to another Mobile Service Provider:

  • you will need to contact that other Mobile Service Provider;
  • you will be responsible for taking all necessary steps to Port the mobile phone number, other than our obligations under the LMNP Terms; and
  • you will be responsible for all costs associated with Porting the mobile phone number (for example, the cost of a new SIM that is compatible with that other Mobile Service Provider’s network, any outstanding charges that you owe us or connection fees charged by that other Mobile Service Provider).

4. If you have not Ported the mobile phone number allocated to you prior to either the termination of this agreement, your Spark Prepaid Account being deactivated or your access to the Services being disconnected, we may reallocate that number to another customer.

6. Wireless data and content

1. If the Services provide links to third party sites, we are in no way responsible for such links or for the Content on any such sites. We have included these links for convenience only and this inclusion is in no way an endorsement of the applicable site or third party.

2. If the Services allow you to access Content that originates from you or third parties, we may monitor any Content made available by you or any third party in order to maintain the integrity or performance of our Network and/or our Services and, acting reasonably and in good faith, remove any Content we consider to be in breach of any law or third party right. Where we remove any Content in accordance with this clause we will notify you that we have done so and provide you with a reason.

3. We are not responsible for:

a. ensuring that any Content you access or make available through using the Services will be private or secure or free from viruses or other harmful things;

b. any transactions you enter into, any dealings between you and any advertisers or third parties, or your participation in any promotions through use of the Services;

c. any inaccuracies in any Content you obtain from the Services or any loss or damage arising from the use of, or reliance on, such Content;

d. any corruption or loss of Content stored on, or transmitted over, our Network;

e. any delay in your receipt of Content you select for transmission to your Mobile Phone; or

f. fixing any faults in your Mobile Phone or SIM as a result of you accessing Content.

4. Unwanted programs or Content may be downloaded from the internet without your knowledge, which may give unauthorised persons access to your Mobile Phone. You are responsible for ensuring that your Mobile Phone has appropriate protections against such unauthorised access and we are in no way responsible for any damage or loss suffered as a result of such access.

7. Mobile phone and SIM

1. Any SIM we supply to you remains our property and must be returned to us if this agreement ends. It is your responsibility to keep any SIM we supply to you in a good condition.

2. You must keep your Mobile Phone and the SIM secure at all times. We recommend that, in order to prevent unauthorised use of your Services, you use, where available, a PIN, passwords, toll barring options and other access code features provided with your Mobile Phone and SIM to ensure that only you are able to access and use the Services. You must keep all such PINs, passwords and access codes confidential at all times. While we will use security screening checks where available, we may assume that any request or instruction we receive is authorised by you if it is made from your Mobile Phone.

3. If a PIN is entered incorrectly three times in a row, the SIM will automatically block and it will not be possible to use it unless it is unblocked. To unblock the SIM you will need a PUK1 Code, which you can obtain from your SIM packaging or by contacting Spark Customer Services. Take care when entering the PUK1 Code because if you continue to block your SIM by incorrectly entering the PUK1 Code the SIM will be rendered useless after 10 attempts and you will lose names, numbers and other information stored on it. Because of the nature of the SIM technology we will not be able to get this information back for you. You will then need to purchase a new SIM which comes with a new PUK1 Code, if you wish to continue using the Services.

4. You must inform us immediately if your Mobile Phone or the SIM supplied to you is lost, stolen or damaged. You will remain liable for all Charges incurred in relation to the use of your Mobile Phone or the SIM up to the time you inform us that your Mobile Phone or SIM is lost or stolen and we activate a block on your Mobile Phone, whether the Charges have been incurred by you or someone else. If your Mobile Phone is lost, stolen, damaged or destroyed, we will have no obligation to make a refund to you for the credit left on your Spark Prepaid Account and you will need to purchase a new Mobile Phone and/or SIM if you wish to continue using the Services.

5. If equipment, including your Mobile Phone and SIM, supplied to you by someone else does not work properly, you need to contact the relevant equipment supplier or manufacturer, rather than us, about the problem. We are in no way responsible if this equipment supplied by someone other than us is damaged as a result of the unauthorised use on our Network, or if it does not work on our Network. We are under no obligation to take any action so you can access the Services using this equipment.

6. Any responsibilities we may have for a Mobile Phone or other equipment that you buy directly from us will be covered by a separate warranty or sales agreement for that Mobile Phone or other equipment.

7. You must pay the purchase price of any Mobile Phone or other equipment you buy from us. Spark retains no ownership rights in the Mobile Phone or other equipment and you cannot terminate this agreement by returning the Mobile Phone or other equipment to Spark. The Mobile Phone or other equipment will be at your risk from the time it is received by you.

8. Charges and your account

1. In order to use the Services you will need to have a Spark Prepaid Account which is in credit. As Charges are incurred they will be deducted from the credit balance of your Spark Prepaid Account. You can add additional credit to your Spark Prepaid Account by buying and registering a Spark Prepaid Service card or voucher or by using one of the other means of payment accepted by us from time to time. For more information on how to top up your Spark Prepaid Account please refer to the Spark Website or contact Spark Customer Services. No bill will be sent to you in relation to your use of Spark Prepaid Services, however you can always check your balance by using your Mobile Device or by calling Spark Customer Services.

2. Each Spark Prepaid Service card or voucher has an expiry date printed on it and cannot be used after that date. We will not give refunds for any cards or vouchers not used by their expiry date. If you have a Spark Prepaid Service card or voucher which has not reached its expiry date and appears to be faulty, just fill in the complaints form available from any Spark retailer or by contacting Spark Customer Services. Send the form with the faulty Spark Prepaid Service card or voucher to Spark, FreePost No. 4083, Private Bag 92028, Auckland. We will check the card or voucher and, if it is faulty, send you a replacement card or voucher.

3. The Charges for calls made from your Mobile Phone are set out in your Prepaid Plan. Generally, there is a minimum one minute charge for each call and after the first minute calls are charged either per second or are rounded up and charged by the minute, depending on your Prepaid Plan. Please see the applicable Service Terms for more information about how we charge for calls on your Prepaid Plan. The Charges for our other Services are set out on the Spark Website and are also available by contacting Spark Customer Services.

4. We may change our Charges from time to time and will notify you of any changes in accordance with clause 14.

5. As we have no control of your Mobile Phone and/or SIM, you are liable for all Charges under this agreement whether incurred by you or someone else using your Mobile Phone or SIM (with or without your knowledge). This includes when your Mobile Phone or SIM has been lost or stolen and prior to us activating a block on your Mobile Phone or SIM .

6. If the credit balance on your Spark Prepaid Account is used up while you are on a call, the call will be automatically disconnected. We will not be liable for calls being disconnected after your credit has been used up.

7. If you have no credit on your Spark Prepaid Account you will not be able to make any outgoing calls (except to emergency services on 111 or to Spark Customer Services) or use any other Services that would incur a Charge.

8. Once you add credit to your Spark Prepaid Account you will need to use that credit within a period of 12 months. Any credit not used within 12 months will expire and you will need to add additional credit in order to use the Services. We will not give you a refund for any credit that expires.

9. You must add credit to your Spark Prepaid Account at least once every 12 months, otherwise your Spark Prepaid Account will be deactivated. If this happens, clause 10.2 will apply.

10. If you get a new mobile telephone number or SIM you may need a new Spark Prepaid Account for that number or SIM. Credit may not be transferred from one Spark Prepaid Account or SIM to another Spark Prepaid Account or SIM.

9. Withholding, suspending or restricting services

1. We may withhold, suspend or restrict your use of any or all of the Services or disconnect you from the Network without warning if:

  • you or anyone who uses your Mobile Phone or SIM does not comply with the terms and conditions of this agreement or any other agreement with us, including any terms and conditions relating to Additional Services;
  • you or anyone who uses your Mobile Phone or SIM damages our Network or puts our Network at risk;
  • you harass, abuse or threaten our staff;
  • you notify us that your Mobile Phone or SIM has been lost or stolen; or
  • you have made multiple complaints without a reasonable basis for doing so, and you continue to make complaints without any reasonable basis after we have requested you to stop.

2. We may also temporarily suspend your use of the Services without warning if our Network needs urgent maintenance or upgrading.

3. When we withhold, suspend, restrict or disconnect a Service for the reasons set out in clause 9.1 above, you may have to purchase a new SIM before you can use the Services again.

10. Giving up or ending services

1. You may end this agreement at any time for any reason by:

a. simply ceasing to add credit to your Spark Prepaid Account at least once every 12 months (see clause 8.9 above);

b. any unused credit on your Spark Prepaid Account will lapse (unless you are upgrading to one of our Spark Postpaid plans or you have a Spark landline or broadband account in which case we can transfer the credit to your Spark account). Where we have terminated your account in accordance with clause 10.3 and you have any unused credit on your Spark Prepaid Account we will provide you with a refund, provided you contact us and advise us how you wish to receive your refund;

c. upgrading to one of our Spark Postpaid plans; or

d. Porting your mobile phone number to another Mobile Service Provider.

2. We may end this agreement immediately without notice to you if:

a. we have the right to suspend your access to the Services for any of the reasons set out in clause 9.1 above that have not been rectified within two weeks;

b. you breach this agreement in a material way (for example, if you do something that could negatively impact on our Network) and do not put it right within seven days of us asking you to, or

c. you become insolvent or bankrupt, or a receiver, manager and receiver, or statutory manager is appointed over any or all of your assets, or any resolution is passed, or any proceeding is commenced to wind you up or liquidate you, or your poor payment history indicated, acting reasonably and in good faith, that you are unable to pay Charges.

3. If this agreement ends for one of the reasons in clause 10.1 or 10.2 above:

  1. any unused Spark Prepaid Service cards or vouchers you have will still expire on their expiry date;
  2. any unused credit on your Spark Prepaid Account will lapse (unless you are upgrading to one of our Spark Postpaid plans in which case we can transfer the credit to your Spark account). Where we have terminated your account in accordance with 10.2 and you have any unused credit on your Spark Prepaid Account we will provide you with a refund provided you contact us and advise us how you wish to receive your refund;
  3. any names, numbers and other information stored on your SIM may be lost; and
  4. unless we agree otherwise (for example, if you have transferred to another Spark mobile call plan covered by another agreement with us) or unless it has been Ported prior to giving up the Services, any mobile phone number allocated for you to use under this agreement will no longer be available to you.

4. You may temporarily or permanently give up any Additional Service by calling Spark Customer Services.

5. If you end this agreement or give up any Service and later want it reconnected, you may have to new credit and/or SIM.

6. Ending this agreement does not affect any rights and responsibilities which are intended to continue or come into force afterwards.

11. Compensation and Liability

1. As a consumer, it is important that you understand that any rights you may have, or obligations we may have to you, under the Consumer Guarantees Act 1993 and the Fair Trading Act 1986 apply alongside these Terms, and are not impacted by anything in this clause 12. The website www.consumeraffairs.govt.nz is a useful place to visit to help you understand your rights under this legislation.

2. If you are acquiring the Services for the purposes of a business as defined in the Consumer Guarantees Act 1993 you acknowledge that, to the maximum extent permitted by law, the provisions of that Act do not apply to the Services that that we provide to you under this agreement.

3. Your liability to us:

a. you accept your liability to us for breach of contract or negligence, and

b. you are not liable for any loss to the extent that it is caused by us (for example, through our breach of contract or negligence).

c. If you are ever liable to us your liability is limited to:

  • $5,000 for any event or series of related events; and
  • A total of $10,000 in respect of all events in any 12 month period.

Provided we notify you of our claim within 12 months after we reasonably become aware of the occurrence of the relevant event or series of events that gave rise to our claim. These limitations do not apply to your obligation to pay any charges, for any loss or damage caused by fraud, gross negligence, wilful breach or wilful damage.

We may become aware that we have suffered loss before you do. If we suffer any loss as a result of this agreement, we agree to take reasonable steps to avoid or minimise our loss and that you are not liable for any loss that results from our failure to take reasonable steps to do so.

4. Our liability to you:

a. subject to clauses 11.2 and 12.1, we accept our liability to you for breach of contract or negligence and for our breach of consumer protection laws, such as the Consumer Guarantees Act 1993 and the Fair Trading Act 1986.

b. we are not liable for any loss to the extent that it is caused by you (for example, through your breach of contract or negligence).

5. We are not liable to you for any indirect or consequential loss, or for any loss of profits, revenue, goodwill, business or anticipated business or anticipated profits or savings.

6. You may become aware that you have suffered loss before we do. If you suffer any loss as a result of this agreement, you agree to take reasonable steps to avoid or minimise your loss and that we are not liable for any loss that results from your failure to take reasonable steps to do so.

7. No other Spark company, network operator and/or third party supplier (including their officers, employees, contractors and agents) will be liable to you for loss or damage of any kind arising from your use of the Services. This clause creates a right and benefit that other Spark companies, network operators and/or suppliers can enforce as a defence to any claim.

8. If we or any of the other parties listed in clause 11.7 above are ever liable to you for any reason, the maximum combined amount we and all the other parties listed in clause 11.7 (together) will have to pay you and anyone else who uses the Services we provide for you (together), will be:

a. $5,000 for any event or for any series of related events; and

b. a total of $10,000 in respect of all events in any 12 month period,

provided that you notify us of your claim within 12 months after you reasonably became aware of the occurrence of the relevant event or series or events that gave rise to your claim. These limitations do not limit any rights you may have under the Consumer Guarantees Act 1993 and the Fair Trading Act 1986.

12. Force Majeure

1. We aim to provide quality services to you at all times, and exercise reasonable skill and care in performing our obligations to you. However, if we are prevented from performing any obligation in these Terms by reason of any act of God, act of State, riot, insurrection, civil commotion, strike, sanctions, boycott, embargo or any other circumstance beyond our reasonable control, we will try to advise you of the existence of the circumstances and its expected duration, and the obligations that are impacted by the circumstances. Our performance of these Terms and provision of Services to you will, to the extent that it is made impossible or impracticable by such circumstances (despite us taking reasonable steps to provide the services be suspended until such circumstances cease to exist. We are not liable to you for any failure or delay in performing any obligation set out in these Terms in the circumstances contemplated by this clause 12.1. You will not be required to pay any Charges for any Services to the extent that such Services are not provided by us due to the circumstances contemplated by this clause 12.1.

13. Information about you

1. While you have an agreement with any Spark Company, you agree that we and other Spark Companies may collect information about you. The information may be obtained from you, from others, or generated within our Network when you or anyone else uses the Services or the services of any service provider approved by us. You may decide whether to provide any information any of us request from you. However, if you do not provide it, we and other Spark Companies may not be able to provide services to you. You may ask to see information any Spark Company holds about you and ask for any details that are wrong to be corrected.

2. We, other Spark Companies and, to the extent appropriate, any service providers approved by us, including service providers providing directory listing and directory assistance services, may hold information about you and share it to the extent appropriate with each other, with Spark employees, contractors and agents and any approved service provider and with credit reference and debt collection agencies. This enables us, other Spark Companies and agencies, including credit reference and debt collection agencies, and approved service providers to provide services for you and others, send you bills, recover and report on money you owe, help prevent and investigate fraud, and keep you informed of services available to you and exercise any lawful right we or any of our related companies, our contractors, credit reference and debt collection agencies, communications network operators and selected business partners has. Credit reporters may include credit checks and any defaults in payment to us and other Spark Companies in their databases and share this information with others who wish to conduct credit checks on you.

3. From time to time we may send you sales and marketing information about Spark products and services. You can let us know at any time if you do not want to receive sales and marketing information by contacting Spark Customer Services. You also agree that the sales and marketing information we send you electronically need not include an unsubscribe facility.

4. We, and other Spark Companies may:

  • share with other network operators the mobile phone numbers allocated to you and any other information (not including your name and address) needed to enable you to make and receive calls through their networks; and
  • share, to the extent appropriate, your name, address and the mobile phone numbers allocated to you with any person (except other network operators) using services provided by any of us or any service provider approved by us for providing directory assistance and directory listing services. This information may also be used or accessed by us or any such approved service provider in or from any directories and other publicly available accessible publications and databases.

5. You may prefer to restrict access to your name, address and mobile phone numbers allocated to you. Please contact Spark Customer Services if you want to know about the ways you can do this.

6. We may occasionally monitor telephone calls between customers and our personnel so as to help train our personnel to provide better customer service. Any information we collect by doing this will be used in strict compliance with all applicable privacy laws.

7. You must contact Spark Customer Services as soon as possible about any change to your name, address or any other details you have provided to us.

14. Changing these terms

1. Changes to terms: From time to time we may need to change the terms of this agreement by changing or removing existing terms or by adding new ones. Changes may take the form of completely new terms. If we determine, acting reasonably and in good faith, that a change will have, or is likely to have a detrimental impact on you, we will give you at least two weeks’ notice of the change. We will tell you about any changes to the terms of this Agreement by SMS messaging you and/or emailing you (where we have your email address), and will publish the change on Spark Website. Your continued use of our Services after changes have been notified to you in this way indicates your acceptance of those changes. If you do not agree to the changes you may exercise your right to terminate this agreement.


2. Changes to Charges: We may change our Charges from time to time. When we decrease charges for any Services we may make the change immediately and we will tell you about the change as soon as possible after the change has been made by SMS messaging you and/or emailing you (where we have your email address), and publishing the change on Spark Website.

When we increase Charges for any of our Services (including introducing charges for Services that are currently free) and you are impacted by the change, we will give you one month’s notice of these changes. We will notify you of these changes by SMS messaging you and/or emailing you, and publishing the change on Spark Website.

3. Changes to Services: We may alter our Services from time to time. If we reasonably consider that a change to our Services is likely to benefit you or have a neutral impact on you we may make that change immediately and will tell you about the change as soon as possible after the change has been made by SMS messaging you and/or emailing you, and publishing the change on Spark Website. Examples of changes that will benefit you include inclusion of additional benefits in your Spark Prepaid Plan. Examples of changes that will have a neutral impact on include changing the name a Spark Prepaid Plan.

If we alter our Services in a way that reduces the Service offering currently received by you and the change is within our control we will provide you one month's notice, of such alterations. However, if the change is outside of our control, and it is possible, we will provide you notice of the change beforehand. If the change is outside of our control and we are unable to provide you notice of the change beforehand we will provide you notice as soon as possible after the change has been made. We will tell you about any such alterations by SMS messaging you and/or emailing you, and publishing the change on Spark Website.

We may change you to a new Spark Prepaid Plan if we consider, acting reasonably and in good faith, that you will be better off, and will give you one month’s notice of such a change by SMS messaging you and/or emailing you (where we have your email address), and publishing the change on our Website.

4. Right to Terminate: If you do not agree to any changes made in accordance with this clause, you may exercise your right to terminate this agreement by ceasing to use the Services.

15. Sending notices

We may send you notices by sending you an SMS, by emailing you (where we have your email address), or by publishing the notice on the Spark Website.

16. Meeting our responsibilities through agents and service providers

We may have any other Spark Company or Spark-approved agent or any service provider approved by us perform any of our rights and obligations under this agreement. In that case, each of those companies or agents or service providers and their officers, employees, contractors and agents will have the benefit of any terms of this agreement which confer benefits on us.

17. Transferring our responsibilities

We may transfer to someone else all or any part of our side of the agreement you have with us, for example if our company ownership and/or structure changes.

18. Severability

Each term of this agreement is separately binding. If for any reason any term is not legally effective all other terms shall remain binding and we can replace the term that is not legally effective with a term of similar meaning that is lawful and effective.

19. Waiver

A failure or delay by you or us to enforce any rights or powers under this agreement shall not operate as a waiver of that right or power. A waiver of any breach of this agreement shall not be deemed to be a waiver of any other or subsequent breach.

20. Governing Law

This agreement is governed by the laws of New Zealand and you submit to the exclusive jurisdiction of the courts of New Zealand in respect of any dispute or proceeding arising out of it.

  1. Our agreement
  2. Interpretation
  3. Commencement of agreement
  4. Provision of Services
  5. Mobile phone numbers
  6. Wireless data and content
  7. Mobile phone and SIM
  8. Charges and your account
  9. Withholding, suspending or restricting services
  10. Giving up or ending services
  11. Compensation and Liability
  12. Force Majeure
  13. Information about you
  14. Changing these terms
  15. Sending notices
  16. Meeting our responsibilities through agents and service providers
  17. Transferring our responsibilities
  18. Severability
  19. Waiver
  20. Governing Law

1. Our agreement

1. If you have a Spark Prepaid connection that operates on our Network (for example, a prepaid pack) then you are a Spark customer and you will need to read this Spark Mobile Prepaid agreement set out below and applicable Spark Mobile Service specific terms and conditions (“Service Terms”) set out on Spark Website (together, “agreement”) which govern our contractual relationship with you for the provision of Spark Prepaid Services on our Network.

2. This agreement applies to all new Spark Prepaid customers who have signed up for Services on and from 16 March 2015. If you signed up for our Services before 16 March 2015 the Mobile Prepaid Agreement dated 1 February 2011 applies to you.

3. We may amend this agreement from time to time in accordance with clause 14 below. The latest version of the agreement will always be published on the Spark Website. Please check the Spark Website regularly for updates.

4. Depending on what Spark Prepaid Services you decide to purchase from us, you will also be bound by the specific terms and conditions published on the Spark Website relating to your Prepaid Plan and any specific terms and conditions relating to the Services you use, like mobile data services. If there is any conflict or inconsistency between:

  • the terms and conditions set out in this agreement; and
  • the terms and conditions relating to your Prepaid Plan or the specific terms and conditions relating to the Services you use, then the terms and conditions referred to in paragraph (b) will prevail.

2. Interpretation

This agreement contains various words and expressions that have defined meanings. These defined words and expressions have the meanings set out below.

  • "Additional Services" means optional services offered by us in connection with the Spark Prepaid Services (such as data, SMS, Roaming, Caller Tunes, Cellular Secretary, Video Calling and Your Spark on device) which may incur a fixed monthly Charge and/or other casual Charges. You can find more information about these services, including which ones are available to you and the Charges for using them, on the Spark Website
  • "Charges" means charges for access to and use of the Services
  • "Content" means information, images and sounds, communications, software or any other material made available through the Services and includes wireless data and internet content
  • "Fair Use Policy" means a fair use policy as referred to in clause 4.8, as amended from time to time
  • "LMNP Terms" means the Terms for Local and Mobile Number Portability in New Zealand, as amended from time to time
  • "Mobile Phone" means the mobile phone or other telecommunications device (which incorporates a SIM) which operates on our WCDMA Network and is used by you to access the Services
  • "Mobile Service Provider" means a provider of mobile telecommunication services
  • "Network" means the telecommunications system owned by us and/or other Spark Companies which we use to provide the Services to you and other customers
  • "PIN" means a personal identification number which is necessary for protection from non-sanctioned access to your SIM
  • "Port" or "Porting" means the process of transferring your mobile phone number from one Mobile Service Provider to another Mobile Service Provider
  • "Prepaid Plan" means the relevant Spark Prepaid Service pricing plan you choose from time to time
  • "PUK1 Code" means a personal unblocking key code which can unblock your SIM
  • "Roaming" means an Additional Service that allows you to use your Mobile Phone in countries other than New Zealand
  • "Services" means the mobile telecommunication services offered by us to you under this agreement, including the Additional Services, and anything else we do or provide in connection with those mobile telecommunication services, which may or may not incur a Charge
  • "SIM" means any SIM that we may have provided to you which enables you, when used with a Mobile Phone, to access the Services on our WCDMA Network
  • "SMS" means a short message service, which is a form of text messaging on Mobile Phones
  • "Spark Company" means Spark New Zealand Trading Limited or any company which is a direct or indirect subsidiary of Spark New Zealand Limited
  • "Spark Customer Services" means Spark Customer Services, which is contactable on 0800 800 163, or on *123 from your Mobile Phone, or by using such other contact details which are updated by us on the Spark Website
  • "Spark Prepaid Account" means the account which records details of the amount of credits you have available from time to time
  • "Spark Prepaid Services" means voice, SMS, data and any other Services provided by us where you pay the Charges in advance by purchasing credit before using the Services
  • "Spark Website" means our website at www.spark.co.nz or such other website that we notify you of from time to time
  • "we", "our" or "us" means Spark New Zealand Limited
  • "you" or "your" means the customer who is party to this agreement.

3. Commencement of agreement

This agreement starts when you are first allocated a Spark mobile phone number to use with your Spark Prepaid Account or when you first credit your Spark Prepaid Account or when you first use the Services, whichever happens first.

4. Provision of Services

1. Spark Prepaid Services allow you to make and receive most local, national and international calls (when within our Network coverage area) using a capable Mobile Phone, and access a range of other Services such as texts and data. You will need a SIM to be able to connect to our Network and use the Services.

2. We will try our best to provide quality Services to you at all times and with reasonable care and skill. Because of the nature of mobile telecommunications, at times our ability to do so will be affected by factors outside of our control including, but not limited to, geographic conditions and physical obstructions, weather conditions, the number of people trying to use our Network at the same time or faults in our Network or other networks used by us to provide the Services to you as well as our Services’ reliance on systems and other services that we do not own or control. We, therefore, cannot promise or guarantee that our Services will be continuous or fault-free or available at a particular location.

3. The quality, speed and coverage of the Services also depends partly on your Mobile Phone, partly on our Network and partly on other telecommunications networks.

4. The Services may also be unavailable at times due to maintenance, repairs, upgrades or modifications to our Network or other networks used by us to provide the Services to you. Where it is within our control, we will try our best to keep such unavailability to a minimum.

5. Roaming relies on the use of overseas telecommunication networks which we do not control and therefore we cannot offer any guarantees about the quality of Roaming services. Some Services, such as video calling, may not be available while Roaming. The use by you of overseas telecommunication networks will be subject to the terms and conditions of the relevant network operator. Those terms and conditions will apply in addition to the terms and conditions contained in this agreement.

6. You agree to:

a. comply with all your obligations in this agreement;

b. provide us with all information we reasonably request in connection with this agreement and make sure that all information you give to us or to any third party retailer is accurate and complete;

c. keep confidential, and do not disclose to any other person, any PIN or other access code feature used by, or allocated to, you in connection with the Services;

d. do not use your Mobile Phone or the Services in a way that is abusive or offensive or for an illegal, immoral or fraudulent purpose;

e. do not use your Mobile Phone or the Services in a way that interferes with any other person's use of the Services;

f. do not use your Mobile Phone or the Services to spam, mail bomb, publish any unlawful material, harvest information about others, create a false identity, access or upload any Content which breaches a third party right, or any other similar activity;

g. use only Mobile Phones and accessories approved for use with our Network and which comply with all relevant legislation and regulations (for example, those that you’ve purchased directly from us or from our authorised retailers);

h. do not connect a SIM you have obtained from us to any other telecommunications network.

i. follow the instructions and guidelines (including any Fair Use Policies) we give you about the use of the Services and your Mobile Phone;

j. do not do anything or introduce anything (including any virus) that may damage or harm our Network or equipment or any third party's network or equipment;

k. authorise us to conduct a credit check on you from time to time when we consider, acting reasonably and in good faith, that it is appropriate;

l. do not sell or otherwise make the Services available to others or commercially exploit the Services or any Content in any way;

m. agree that using the Services does not give you any rights in any part of our Network;

n. never interfere with any part of our Network unless you have been authorised in writing by us to do so;

o. authorise us or a person approved by us to remotely access your Mobile Phone in order to perform any tasks that in our opinion are reasonably necessary to protect you or our other customers, or to maintain, alter or protect the integrity or performance of our Network or our Services or where we have been directed to do so by law;

p. comply with the terms of any loan agreement that you have with us relating to any Mobile Phone or other equipment you rent from us, or which is loaned to you; and

q. that you may not transfer any benefit or obligation of this agreement it to any other person.

7. You agree to make sure everyone who uses your Mobile Phone or SIM complies with the obligations and responsibilities set out in clause 4.6.

8. Some of our Services are subject to fair use policies, which are set out in the specific terms and conditions relating to those Services. We may enforce our fair use policies from time to time where, in our reasonable opinion and acting in good faith, your usage of the Services is excessive and/or unreasonable. We do this in order to help prevent fraud and to ensure that excessive use of the Services doesn’t prevent our other customers from enjoying the Services. From time to time we may publish new fair use policies in respect of some or all of the Services. Where we do this we will notify you beforehand. If you do not agree to with any new fair use policy you may exercise your right to terminate this agreement.

5. Mobile phone numbers

1. Unless you Port a mobile phone number to us or you have an existing Spark mobile phone number which can be used with your Mobile Phone or SIM, we will allocate a mobile phone number to you for use with your Mobile Phone or SIM on our Network. The mobile phone number does not belong to you and you may not sell or otherwise transfer it. Any disputes regarding the allocation of mobile phone numbers will be determined by us, acting reasonably and in good faith, and taking the particular facts of each case into consideration, and our decision will be final.

2. In exceptional circumstances, where there are no alternative solutions available, we may be required to change the mobile phone number you use with your Mobile Phone or SIM. Where we are required to change your allocated mobile phone number we will try and give you notice of this change.

3. If you wish to Port your allocated mobile phone number to another Mobile Service Provider:

  • you will need to contact that other Mobile Service Provider;
  • you will be responsible for taking all necessary steps to Port the mobile phone number, other than our obligations under the LMNP Terms; and
  • you will be responsible for all costs associated with Porting the mobile phone number (for example, the cost of a new SIM that is compatible with that other Mobile Service Provider’s network, any outstanding charges that you owe us or connection fees charged by that other Mobile Service Provider).

4. If you have not Ported the mobile phone number allocated to you prior to either the termination of this agreement, your Spark Prepaid Account being deactivated or your access to the Services being disconnected, we may reallocate that number to another customer.

6. Wireless data and content

1. If the Services provide links to third party sites, we are in no way responsible for such links or for the Content on any such sites. We have included these links for convenience only and this inclusion is in no way an endorsement of the applicable site or third party.

2. If the Services allow you to access Content that originates from you or third parties, we may monitor any Content made available by you or any third party in order to maintain the integrity or performance of our Network and/or our Services and, acting reasonably and in good faith, remove any Content we consider to be in breach of any law or third party right. Where we remove any Content in accordance with this clause we will notify you that we have done so and provide you with a reason.

3. We are not responsible for:

a. ensuring that any Content you access or make available through using the Services will be private or secure or free from viruses or other harmful things;

b. any transactions you enter into, any dealings between you and any advertisers or third parties, or your participation in any promotions through use of the Services;

c. any inaccuracies in any Content you obtain from the Services or any loss or damage arising from the use of, or reliance on, such Content;

d. any corruption or loss of Content stored on, or transmitted over, our Network;

e. any delay in your receipt of Content you select for transmission to your Mobile Phone; or

f. fixing any faults in your Mobile Phone or SIM as a result of you accessing Content.

4. Unwanted programs or Content may be downloaded from the internet without your knowledge, which may give unauthorised persons access to your Mobile Phone. You are responsible for ensuring that your Mobile Phone has appropriate protections against such unauthorised access and we are in no way responsible for any damage or loss suffered as a result of such access.

7. Mobile phone and SIM

1. Any SIM we supply to you remains our property and must be returned to us if this agreement ends. It is your responsibility to keep any SIM we supply to you in a good condition.

2. You must keep your Mobile Phone and the SIM secure at all times. We recommend that, in order to prevent unauthorised use of your Services, you use, where available, a PIN, passwords, toll barring options and other access code features provided with your Mobile Phone and SIM to ensure that only you are able to access and use the Services. You must keep all such PINs, passwords and access codes confidential at all times. While we will use security screening checks where available, we may assume that any request or instruction we receive is authorised by you if it is made from your Mobile Phone.

3. If a PIN is entered incorrectly three times in a row, the SIM will automatically block and it will not be possible to use it unless it is unblocked. To unblock the SIM you will need a PUK1 Code, which you can obtain from your SIM packaging or by contacting Spark Customer Services. Take care when entering the PUK1 Code because if you continue to block your SIM by incorrectly entering the PUK1 Code the SIM will be rendered useless after 10 attempts and you will lose names, numbers and other information stored on it. Because of the nature of the SIM technology we will not be able to get this information back for you. You will then need to purchase a new SIM which comes with a new PUK1 Code, if you wish to continue using the Services.

4. You must inform us immediately if your Mobile Phone or the SIM supplied to you is lost, stolen or damaged. You will remain liable for all Charges incurred in relation to the use of your Mobile Phone or the SIM up to the time you inform us that your Mobile Phone or SIM is lost or stolen and we activate a block on your Mobile Phone, whether the Charges have been incurred by you or someone else. If your Mobile Phone is lost, stolen, damaged or destroyed, we will have no obligation to make a refund to you for the credit left on your Spark Prepaid Account and you will need to purchase a new Mobile Phone and/or SIM if you wish to continue using the Services.

5. If equipment, including your Mobile Phone and SIM, supplied to you by someone else does not work properly, you need to contact the relevant equipment supplier or manufacturer, rather than us, about the problem. We are in no way responsible if this equipment supplied by someone other than us is damaged as a result of the unauthorised use on our Network, or if it does not work on our Network. We are under no obligation to take any action so you can access the Services using this equipment.

6. Any responsibilities we may have for a Mobile Phone or other equipment that you buy directly from us will be covered by a separate warranty or sales agreement for that Mobile Phone or other equipment.

7. You must pay the purchase price of any Mobile Phone or other equipment you buy from us. Spark retains no ownership rights in the Mobile Phone or other equipment and you cannot terminate this agreement by returning the Mobile Phone or other equipment to Spark. The Mobile Phone or other equipment will be at your risk from the time it is received by you.

8. Charges and your account

1. In order to use the Services you will need to have a Spark Prepaid Account which is in credit. As Charges are incurred they will be deducted from the credit balance of your Spark Prepaid Account. You can add additional credit to your Spark Prepaid Account by buying and registering a Spark Prepaid Service card or voucher or by using one of the other means of payment accepted by us from time to time. For more information on how to top up your Spark Prepaid Account please refer to the Spark Website or contact Spark Customer Services. No bill will be sent to you in relation to your use of Spark Prepaid Services, however you can always check your balance by using your Mobile Device or by calling Spark Customer Services.

2. Each Spark Prepaid Service card or voucher has an expiry date printed on it and cannot be used after that date. We will not give refunds for any cards or vouchers not used by their expiry date. If you have a Spark Prepaid Service card or voucher which has not reached its expiry date and appears to be faulty, just fill in the complaints form available from any Spark retailer or by contacting Spark Customer Services. Send the form with the faulty Spark Prepaid Service card or voucher to Spark, FreePost No. 4083, Private Bag 92028, Auckland. We will check the card or voucher and, if it is faulty, send you a replacement card or voucher.

3. The Charges for calls made from your Mobile Phone are set out in your Prepaid Plan. Generally, there is a minimum one minute charge for each call and after the first minute calls are charged either per second or are rounded up and charged by the minute, depending on your Prepaid Plan. Please see the applicable Service Terms for more information about how we charge for calls on your Prepaid Plan. The Charges for our other Services are set out on the Spark Website and are also available by contacting Spark Customer Services.

4. We may change our Charges from time to time and will notify you of any changes in accordance with clause 14.

5. As we have no control of your Mobile Phone and/or SIM, you are liable for all Charges under this agreement whether incurred by you or someone else using your Mobile Phone or SIM (with or without your knowledge). This includes when your Mobile Phone or SIM has been lost or stolen and prior to us activating a block on your Mobile Phone or SIM .

6. If the credit balance on your Spark Prepaid Account is used up while you are on a call, the call will be automatically disconnected. We will not be liable for calls being disconnected after your credit has been used up.

7. If you have no credit on your Spark Prepaid Account you will not be able to make any outgoing calls (except to emergency services on 111 or to Spark Customer Services) or use any other Services that would incur a Charge.

8. Once you add credit to your Spark Prepaid Account you will need to use that credit within a period of 12 months. Any credit not used within 12 months will expire and you will need to add additional credit in order to use the Services. We will not give you a refund for any credit that expires.

9. You must add credit to your Spark Prepaid Account at least once every 12 months, otherwise your Spark Prepaid Account will be deactivated. If this happens, clause 10.2 will apply.

10. If you get a new mobile telephone number or SIM you may need a new Spark Prepaid Account for that number or SIM. Credit may not be transferred from one Spark Prepaid Account or SIM to another Spark Prepaid Account or SIM.

9. Withholding, suspending or restricting services

1. We may withhold, suspend or restrict your use of any or all of the Services or disconnect you from the Network without warning if:

  • you or anyone who uses your Mobile Phone or SIM does not comply with the terms and conditions of this agreement or any other agreement with us, including any terms and conditions relating to Additional Services;
  • you or anyone who uses your Mobile Phone or SIM damages our Network or puts our Network at risk;
  • you harass, abuse or threaten our staff;
  • you notify us that your Mobile Phone or SIM has been lost or stolen; or
  • you have made multiple complaints without a reasonable basis for doing so, and you continue to make complaints without any reasonable basis after we have requested you to stop.

2. We may also temporarily suspend your use of the Services without warning if our Network needs urgent maintenance or upgrading.

3. When we withhold, suspend, restrict or disconnect a Service for the reasons set out in clause 9.1 above, you may have to purchase a new SIM before you can use the Services again.

10. Giving up or ending services

1. You may end this agreement at any time for any reason by:

a. simply ceasing to add credit to your Spark Prepaid Account at least once every 12 months (see clause 8.9 above);

b. any unused credit on your Spark Prepaid Account will lapse (unless you are upgrading to one of our Spark Postpaid plans or you have a Spark landline or broadband account in which case we can transfer the credit to your Spark account). Where we have terminated your account in accordance with clause 10.3 and you have any unused credit on your Spark Prepaid Account we will provide you with a refund, provided you contact us and advise us how you wish to receive your refund;

c. upgrading to one of our Spark Postpaid plans; or

d. Porting your mobile phone number to another Mobile Service Provider.

2. We may end this agreement immediately without notice to you if:

a. we have the right to suspend your access to the Services for any of the reasons set out in clause 9.1 above that have not been rectified within two weeks;

b. you breach this agreement in a material way (for example, if you do something that could negatively impact on our Network) and do not put it right within seven days of us asking you to, or

c. you become insolvent or bankrupt, or a receiver, manager and receiver, or statutory manager is appointed over any or all of your assets, or any resolution is passed, or any proceeding is commenced to wind you up or liquidate you, or your poor payment history indicated, acting reasonably and in good faith, that you are unable to pay Charges.

3. If this agreement ends for one of the reasons in clause 10.1 or 10.2 above:

  1. any unused Spark Prepaid Service cards or vouchers you have will still expire on their expiry date;
  2. any unused credit on your Spark Prepaid Account will lapse (unless you are upgrading to one of our Spark Postpaid plans in which case we can transfer the credit to your Spark account). Where we have terminated your account in accordance with 10.2 and you have any unused credit on your Spark Prepaid Account we will provide you with a refund provided you contact us and advise us how you wish to receive your refund;
  3. any names, numbers and other information stored on your SIM may be lost; and
  4. unless we agree otherwise (for example, if you have transferred to another Spark mobile call plan covered by another agreement with us) or unless it has been Ported prior to giving up the Services, any mobile phone number allocated for you to use under this agreement will no longer be available to you.

4. You may temporarily or permanently give up any Additional Service by calling Spark Customer Services.

5. If you end this agreement or give up any Service and later want it reconnected, you may have to new credit and/or SIM.

6. Ending this agreement does not affect any rights and responsibilities which are intended to continue or come into force afterwards.

11. Compensation and Liability

1. As a consumer, it is important that you understand that any rights you may have, or obligations we may have to you, under the Consumer Guarantees Act 1993 and the Fair Trading Act 1986 apply alongside these Terms, and are not impacted by anything in this clause 12. The website www.consumeraffairs.govt.nz is a useful place to visit to help you understand your rights under this legislation.

2. If you are acquiring the Services for the purposes of a business as defined in the Consumer Guarantees Act 1993 you acknowledge that, to the maximum extent permitted by law, the provisions of that Act do not apply to the Services that that we provide to you under this agreement.

3. Your liability to us:

a. you accept your liability to us for breach of contract or negligence, and

b. you are not liable for any loss to the extent that it is caused by us (for example, through our breach of contract or negligence).

c. If you are ever liable to us your liability is limited to:

  • $5,000 for any event or series of related events; and
  • A total of $10,000 in respect of all events in any 12 month period.

Provided we notify you of our claim within 12 months after we reasonably become aware of the occurrence of the relevant event or series of events that gave rise to our claim. These limitations do not apply to your obligation to pay any charges, for any loss or damage caused by fraud, gross negligence, wilful breach or wilful damage.

We may become aware that we have suffered loss before you do. If we suffer any loss as a result of this agreement, we agree to take reasonable steps to avoid or minimise our loss and that you are not liable for any loss that results from our failure to take reasonable steps to do so.

4. Our liability to you:

a. subject to clauses 11.2 and 12.1, we accept our liability to you for breach of contract or negligence and for our breach of consumer protection laws, such as the Consumer Guarantees Act 1993 and the Fair Trading Act 1986.

b. we are not liable for any loss to the extent that it is caused by you (for example, through your breach of contract or negligence).

5. We are not liable to you for any indirect or consequential loss, or for any loss of profits, revenue, goodwill, business or anticipated business or anticipated profits or savings.

6. You may become aware that you have suffered loss before we do. If you suffer any loss as a result of this agreement, you agree to take reasonable steps to avoid or minimise your loss and that we are not liable for any loss that results from your failure to take reasonable steps to do so.

7. No other Spark company, network operator and/or third party supplier (including their officers, employees, contractors and agents) will be liable to you for loss or damage of any kind arising from your use of the Services. This clause creates a right and benefit that other Spark companies, network operators and/or suppliers can enforce as a defence to any claim.

8. If we or any of the other parties listed in clause 11.7 above are ever liable to you for any reason, the maximum combined amount we and all the other parties listed in clause 11.7 (together) will have to pay you and anyone else who uses the Services we provide for you (together), will be:

a. $5,000 for any event or for any series of related events; and

b. a total of $10,000 in respect of all events in any 12 month period,

provided that you notify us of your claim within 12 months after you reasonably became aware of the occurrence of the relevant event or series or events that gave rise to your claim. These limitations do not limit any rights you may have under the Consumer Guarantees Act 1993 and the Fair Trading Act 1986.

12. Force Majeure

1. We aim to provide quality services to you at all times, and exercise reasonable skill and care in performing our obligations to you. However, if we are prevented from performing any obligation in these Terms by reason of any act of God, act of State, riot, insurrection, civil commotion, strike, sanctions, boycott, embargo or any other circumstance beyond our reasonable control, we will try to advise you of the existence of the circumstances and its expected duration, and the obligations that are impacted by the circumstances. Our performance of these Terms and provision of Services to you will, to the extent that it is made impossible or impracticable by such circumstances (despite us taking reasonable steps to provide the services be suspended until such circumstances cease to exist. We are not liable to you for any failure or delay in performing any obligation set out in these Terms in the circumstances contemplated by this clause 12.1. You will not be required to pay any Charges for any Services to the extent that such Services are not provided by us due to the circumstances contemplated by this clause 12.1.

13. Information about you

1. While you have an agreement with any Spark Company, you agree that we and other Spark Companies may collect information about you. The information may be obtained from you, from others, or generated within our Network when you or anyone else uses the Services or the services of any service provider approved by us. You may decide whether to provide any information any of us request from you. However, if you do not provide it, we and other Spark Companies may not be able to provide services to you. You may ask to see information any Spark Company holds about you and ask for any details that are wrong to be corrected.

2. We, other Spark Companies and, to the extent appropriate, any service providers approved by us, including service providers providing directory listing and directory assistance services, may hold information about you and share it to the extent appropriate with each other, with Spark employees, contractors and agents and any approved service provider and with credit reference and debt collection agencies. This enables us, other Spark Companies and agencies, including credit reference and debt collection agencies, and approved service providers to provide services for you and others, send you bills, recover and report on money you owe, help prevent and investigate fraud, and keep you informed of services available to you and exercise any lawful right we or any of our related companies, our contractors, credit reference and debt collection agencies, communications network operators and selected business partners has. Credit reporters may include credit checks and any defaults in payment to us and other Spark Companies in their databases and share this information with others who wish to conduct credit checks on you.

3. From time to time we may send you sales and marketing information about Spark products and services. You can let us know at any time if you do not want to receive sales and marketing information by contacting Spark Customer Services. You also agree that the sales and marketing information we send you electronically need not include an unsubscribe facility.

4. We, and other Spark Companies may:

  • share with other network operators the mobile phone numbers allocated to you and any other information (not including your name and address) needed to enable you to make and receive calls through their networks; and
  • share, to the extent appropriate, your name, address and the mobile phone numbers allocated to you with any person (except other network operators) using services provided by any of us or any service provider approved by us for providing directory assistance and directory listing services. This information may also be used or accessed by us or any such approved service provider in or from any directories and other publicly available accessible publications and databases.

5. You may prefer to restrict access to your name, address and mobile phone numbers allocated to you. Please contact Spark Customer Services if you want to know about the ways you can do this.

6. We may occasionally monitor telephone calls between customers and our personnel so as to help train our personnel to provide better customer service. Any information we collect by doing this will be used in strict compliance with all applicable privacy laws.

7. You must contact Spark Customer Services as soon as possible about any change to your name, address or any other details you have provided to us.

14. Changing these terms

1. Changes to terms: From time to time we may need to change the terms of this agreement by changing or removing existing terms or by adding new ones. Changes may take the form of completely new terms. If we determine, acting reasonably and in good faith, that a change will have, or is likely to have a detrimental impact on you, we will give you at least two weeks’ notice of the change. We will tell you about any changes to the terms of this Agreement by SMS messaging you and/or emailing you (where we have your email address), and will publish the change on Spark Website. Your continued use of our Services after changes have been notified to you in this way indicates your acceptance of those changes. If you do not agree to the changes you may exercise your right to terminate this agreement.


2. Changes to Charges: We may change our Charges from time to time. When we decrease charges for any Services we may make the change immediately and we will tell you about the change as soon as possible after the change has been made by SMS messaging you and/or emailing you (where we have your email address), and publishing the change on Spark Website.

When we increase Charges for any of our Services (including introducing charges for Services that are currently free) and you are impacted by the change, we will give you one month’s notice of these changes. We will notify you of these changes by SMS messaging you and/or emailing you, and publishing the change on Spark Website.

3. Changes to Services: We may alter our Services from time to time. If we reasonably consider that a change to our Services is likely to benefit you or have a neutral impact on you we may make that change immediately and will tell you about the change as soon as possible after the change has been made by SMS messaging you and/or emailing you, and publishing the change on Spark Website. Examples of changes that will benefit you include inclusion of additional benefits in your Spark Prepaid Plan. Examples of changes that will have a neutral impact on include changing the name a Spark Prepaid Plan.

If we alter our Services in a way that reduces the Service offering currently received by you and the change is within our control we will provide you one month's notice, of such alterations. However, if the change is outside of our control, and it is possible, we will provide you notice of the change beforehand. If the change is outside of our control and we are unable to provide you notice of the change beforehand we will provide you notice as soon as possible after the change has been made. We will tell you about any such alterations by SMS messaging you and/or emailing you, and publishing the change on Spark Website.

We may change you to a new Spark Prepaid Plan if we consider, acting reasonably and in good faith, that you will be better off, and will give you one month’s notice of such a change by SMS messaging you and/or emailing you (where we have your email address), and publishing the change on our Website.

4. Right to Terminate: If you do not agree to any changes made in accordance with this clause, you may exercise your right to terminate this agreement by ceasing to use the Services.

15. Sending notices

We may send you notices by sending you an SMS, by emailing you (where we have your email address), or by publishing the notice on the Spark Website.

16. Meeting our responsibilities through agents and service providers

We may have any other Spark Company or Spark-approved agent or any service provider approved by us perform any of our rights and obligations under this agreement. In that case, each of those companies or agents or service providers and their officers, employees, contractors and agents will have the benefit of any terms of this agreement which confer benefits on us.

17. Transferring our responsibilities

We may transfer to someone else all or any part of our side of the agreement you have with us, for example if our company ownership and/or structure changes.

18. Severability

Each term of this agreement is separately binding. If for any reason any term is not legally effective all other terms shall remain binding and we can replace the term that is not legally effective with a term of similar meaning that is lawful and effective.

19. Waiver

A failure or delay by you or us to enforce any rights or powers under this agreement shall not operate as a waiver of that right or power. A waiver of any breach of this agreement shall not be deemed to be a waiver of any other or subsequent breach.

20. Governing Law

This agreement is governed by the laws of New Zealand and you submit to the exclusive jurisdiction of the courts of New Zealand in respect of any dispute or proceeding arising out of it.

  1. Our agreement
  2. Interpretation
  3. Commencement of agreement
  4. Provision of Services
  5. Mobile phone numbers
  6. Wireless data and content
  7. Mobile phone and SIM
  8. Charges and your account
  9. Withholding, suspending or restricting services
  10. Giving up or ending services
  11. Compensation and Liability
  12. Force Majeure
  13. Information about you
  14. Changing these terms
  15. Sending notices
  16. Meeting our responsibilities through agents and service providers
  17. Transferring our responsibilities
  18. Severability
  19. Waiver
  20. Governing Law

1. Our agreement

1. If you have a Spark Prepaid connection that operates on our Network (for example, a prepaid pack) then you are a Spark customer and you will need to read this Spark Mobile Prepaid agreement set out below and applicable Spark Mobile Service specific terms and conditions (“Service Terms”) set out on Spark Website (together, “agreement”) which govern our contractual relationship with you for the provision of Spark Prepaid Services on our Network.

2. This agreement applies to all new Spark Prepaid customers who have signed up for Services on and from 16 March 2015. If you signed up for our Services before 16 March 2015 the Mobile Prepaid Agreement dated 1 February 2011 applies to you.

3. We may amend this agreement from time to time in accordance with clause 14 below. The latest version of the agreement will always be published on the Spark Website. Please check the Spark Website regularly for updates.

4. Depending on what Spark Prepaid Services you decide to purchase from us, you will also be bound by the specific terms and conditions published on the Spark Website relating to your Prepaid Plan and any specific terms and conditions relating to the Services you use, like mobile data services. If there is any conflict or inconsistency between:

  • the terms and conditions set out in this agreement; and
  • the terms and conditions relating to your Prepaid Plan or the specific terms and conditions relating to the Services you use, then the terms and conditions referred to in paragraph (b) will prevail.

2. Interpretation

This agreement contains various words and expressions that have defined meanings. These defined words and expressions have the meanings set out below.

  • "Additional Services" means optional services offered by us in connection with the Spark Prepaid Services (such as data, SMS, Roaming, Caller Tunes, Cellular Secretary, Video Calling and Your Spark on device) which may incur a fixed monthly Charge and/or other casual Charges. You can find more information about these services, including which ones are available to you and the Charges for using them, on the Spark Website
  • "Charges" means charges for access to and use of the Services
  • "Content" means information, images and sounds, communications, software or any other material made available through the Services and includes wireless data and internet content
  • "Fair Use Policy" means a fair use policy as referred to in clause 4.8, as amended from time to time
  • "LMNP Terms" means the Terms for Local and Mobile Number Portability in New Zealand, as amended from time to time
  • "Mobile Phone" means the mobile phone or other telecommunications device (which incorporates a SIM) which operates on our WCDMA Network and is used by you to access the Services
  • "Mobile Service Provider" means a provider of mobile telecommunication services
  • "Network" means the telecommunications system owned by us and/or other Spark Companies which we use to provide the Services to you and other customers
  • "PIN" means a personal identification number which is necessary for protection from non-sanctioned access to your SIM
  • "Port" or "Porting" means the process of transferring your mobile phone number from one Mobile Service Provider to another Mobile Service Provider
  • "Prepaid Plan" means the relevant Spark Prepaid Service pricing plan you choose from time to time
  • "PUK1 Code" means a personal unblocking key code which can unblock your SIM
  • "Roaming" means an Additional Service that allows you to use your Mobile Phone in countries other than New Zealand
  • "Services" means the mobile telecommunication services offered by us to you under this agreement, including the Additional Services, and anything else we do or provide in connection with those mobile telecommunication services, which may or may not incur a Charge
  • "SIM" means any SIM that we may have provided to you which enables you, when used with a Mobile Phone, to access the Services on our WCDMA Network
  • "SMS" means a short message service, which is a form of text messaging on Mobile Phones
  • "Spark Company" means Spark New Zealand Trading Limited or any company which is a direct or indirect subsidiary of Spark New Zealand Limited
  • "Spark Customer Services" means Spark Customer Services, which is contactable on 0800 800 163, or on *123 from your Mobile Phone, or by using such other contact details which are updated by us on the Spark Website
  • "Spark Prepaid Account" means the account which records details of the amount of credits you have available from time to time
  • "Spark Prepaid Services" means voice, SMS, data and any other Services provided by us where you pay the Charges in advance by purchasing credit before using the Services
  • "Spark Website" means our website at www.spark.co.nz or such other website that we notify you of from time to time
  • "we", "our" or "us" means Spark New Zealand Limited
  • "you" or "your" means the customer who is party to this agreement.

3. Commencement of agreement

This agreement starts when you are first allocated a Spark mobile phone number to use with your Spark Prepaid Account or when you first credit your Spark Prepaid Account or when you first use the Services, whichever happens first.

4. Provision of Services

1. Spark Prepaid Services allow you to make and receive most local, national and international calls (when within our Network coverage area) using a capable Mobile Phone, and access a range of other Services such as texts and data. You will need a SIM to be able to connect to our Network and use the Services.

2. We will try our best to provide quality Services to you at all times and with reasonable care and skill. Because of the nature of mobile telecommunications, at times our ability to do so will be affected by factors outside of our control including, but not limited to, geographic conditions and physical obstructions, weather conditions, the number of people trying to use our Network at the same time or faults in our Network or other networks used by us to provide the Services to you as well as our Services’ reliance on systems and other services that we do not own or control. We, therefore, cannot promise or guarantee that our Services will be continuous or fault-free or available at a particular location.

3. The quality, speed and coverage of the Services also depends partly on your Mobile Phone, partly on our Network and partly on other telecommunications networks.

4. The Services may also be unavailable at times due to maintenance, repairs, upgrades or modifications to our Network or other networks used by us to provide the Services to you. Where it is within our control, we will try our best to keep such unavailability to a minimum.

5. Roaming relies on the use of overseas telecommunication networks which we do not control and therefore we cannot offer any guarantees about the quality of Roaming services. Some Services, such as video calling, may not be available while Roaming. The use by you of overseas telecommunication networks will be subject to the terms and conditions of the relevant network operator. Those terms and conditions will apply in addition to the terms and conditions contained in this agreement.

6. You agree to:

a. comply with all your obligations in this agreement;

b. provide us with all information we reasonably request in connection with this agreement and make sure that all information you give to us or to any third party retailer is accurate and complete;

c. keep confidential, and do not disclose to any other person, any PIN or other access code feature used by, or allocated to, you in connection with the Services;

d. do not use your Mobile Phone or the Services in a way that is abusive or offensive or for an illegal, immoral or fraudulent purpose;

e. do not use your Mobile Phone or the Services in a way that interferes with any other person's use of the Services;

f. do not use your Mobile Phone or the Services to spam, mail bomb, publish any unlawful material, harvest information about others, create a false identity, access or upload any Content which breaches a third party right, or any other similar activity;

g. use only Mobile Phones and accessories approved for use with our Network and which comply with all relevant legislation and regulations (for example, those that you’ve purchased directly from us or from our authorised retailers);

h. do not connect a SIM you have obtained from us to any other telecommunications network.

i. follow the instructions and guidelines (including any Fair Use Policies) we give you about the use of the Services and your Mobile Phone;

j. do not do anything or introduce anything (including any virus) that may damage or harm our Network or equipment or any third party's network or equipment;

k. authorise us to conduct a credit check on you from time to time when we consider, acting reasonably and in good faith, that it is appropriate;

l. do not sell or otherwise make the Services available to others or commercially exploit the Services or any Content in any way;

m. agree that using the Services does not give you any rights in any part of our Network;

n. never interfere with any part of our Network unless you have been authorised in writing by us to do so;

o. authorise us or a person approved by us to remotely access your Mobile Phone in order to perform any tasks that in our opinion are reasonably necessary to protect you or our other customers, or to maintain, alter or protect the integrity or performance of our Network or our Services or where we have been directed to do so by law;

p. comply with the terms of any loan agreement that you have with us relating to any Mobile Phone or other equipment you rent from us, or which is loaned to you; and

q. that you may not transfer any benefit or obligation of this agreement it to any other person.

7. You agree to make sure everyone who uses your Mobile Phone or SIM complies with the obligations and responsibilities set out in clause 4.6.

8. Some of our Services are subject to fair use policies, which are set out in the specific terms and conditions relating to those Services. We may enforce our fair use policies from time to time where, in our reasonable opinion and acting in good faith, your usage of the Services is excessive and/or unreasonable. We do this in order to help prevent fraud and to ensure that excessive use of the Services doesn’t prevent our other customers from enjoying the Services. From time to time we may publish new fair use policies in respect of some or all of the Services. Where we do this we will notify you beforehand. If you do not agree to with any new fair use policy you may exercise your right to terminate this agreement.

5. Mobile phone numbers

1. Unless you Port a mobile phone number to us or you have an existing Spark mobile phone number which can be used with your Mobile Phone or SIM, we will allocate a mobile phone number to you for use with your Mobile Phone or SIM on our Network. The mobile phone number does not belong to you and you may not sell or otherwise transfer it. Any disputes regarding the allocation of mobile phone numbers will be determined by us, acting reasonably and in good faith, and taking the particular facts of each case into consideration, and our decision will be final.

2. In exceptional circumstances, where there are no alternative solutions available, we may be required to change the mobile phone number you use with your Mobile Phone or SIM. Where we are required to change your allocated mobile phone number we will try and give you notice of this change.

3. If you wish to Port your allocated mobile phone number to another Mobile Service Provider:

  • you will need to contact that other Mobile Service Provider;
  • you will be responsible for taking all necessary steps to Port the mobile phone number, other than our obligations under the LMNP Terms; and
  • you will be responsible for all costs associated with Porting the mobile phone number (for example, the cost of a new SIM that is compatible with that other Mobile Service Provider’s network, any outstanding charges that you owe us or connection fees charged by that other Mobile Service Provider).

4. If you have not Ported the mobile phone number allocated to you prior to either the termination of this agreement, your Spark Prepaid Account being deactivated or your access to the Services being disconnected, we may reallocate that number to another customer.

6. Wireless data and content

1. If the Services provide links to third party sites, we are in no way responsible for such links or for the Content on any such sites. We have included these links for convenience only and this inclusion is in no way an endorsement of the applicable site or third party.

2. If the Services allow you to access Content that originates from you or third parties, we may monitor any Content made available by you or any third party in order to maintain the integrity or performance of our Network and/or our Services and, acting reasonably and in good faith, remove any Content we consider to be in breach of any law or third party right. Where we remove any Content in accordance with this clause we will notify you that we have done so and provide you with a reason.

3. We are not responsible for:

a. ensuring that any Content you access or make available through using the Services will be private or secure or free from viruses or other harmful things;

b. any transactions you enter into, any dealings between you and any advertisers or third parties, or your participation in any promotions through use of the Services;

c. any inaccuracies in any Content you obtain from the Services or any loss or damage arising from the use of, or reliance on, such Content;

d. any corruption or loss of Content stored on, or transmitted over, our Network;

e. any delay in your receipt of Content you select for transmission to your Mobile Phone; or

f. fixing any faults in your Mobile Phone or SIM as a result of you accessing Content.

4. Unwanted programs or Content may be downloaded from the internet without your knowledge, which may give unauthorised persons access to your Mobile Phone. You are responsible for ensuring that your Mobile Phone has appropriate protections against such unauthorised access and we are in no way responsible for any damage or loss suffered as a result of such access.

7. Mobile phone and SIM

1. Any SIM we supply to you remains our property and must be returned to us if this agreement ends. It is your responsibility to keep any SIM we supply to you in a good condition.

2. You must keep your Mobile Phone and the SIM secure at all times. We recommend that, in order to prevent unauthorised use of your Services, you use, where available, a PIN, passwords, toll barring options and other access code features provided with your Mobile Phone and SIM to ensure that only you are able to access and use the Services. You must keep all such PINs, passwords and access codes confidential at all times. While we will use security screening checks where available, we may assume that any request or instruction we receive is authorised by you if it is made from your Mobile Phone.

3. If a PIN is entered incorrectly three times in a row, the SIM will automatically block and it will not be possible to use it unless it is unblocked. To unblock the SIM you will need a PUK1 Code, which you can obtain from your SIM packaging or by contacting Spark Customer Services. Take care when entering the PUK1 Code because if you continue to block your SIM by incorrectly entering the PUK1 Code the SIM will be rendered useless after 10 attempts and you will lose names, numbers and other information stored on it. Because of the nature of the SIM technology we will not be able to get this information back for you. You will then need to purchase a new SIM which comes with a new PUK1 Code, if you wish to continue using the Services.

4. You must inform us immediately if your Mobile Phone or the SIM supplied to you is lost, stolen or damaged. You will remain liable for all Charges incurred in relation to the use of your Mobile Phone or the SIM up to the time you inform us that your Mobile Phone or SIM is lost or stolen and we activate a block on your Mobile Phone, whether the Charges have been incurred by you or someone else. If your Mobile Phone is lost, stolen, damaged or destroyed, we will have no obligation to make a refund to you for the credit left on your Spark Prepaid Account and you will need to purchase a new Mobile Phone and/or SIM if you wish to continue using the Services.

5. If equipment, including your Mobile Phone and SIM, supplied to you by someone else does not work properly, you need to contact the relevant equipment supplier or manufacturer, rather than us, about the problem. We are in no way responsible if this equipment supplied by someone other than us is damaged as a result of the unauthorised use on our Network, or if it does not work on our Network. We are under no obligation to take any action so you can access the Services using this equipment.

6. Any responsibilities we may have for a Mobile Phone or other equipment that you buy directly from us will be covered by a separate warranty or sales agreement for that Mobile Phone or other equipment.

7. You must pay the purchase price of any Mobile Phone or other equipment you buy from us. Spark retains no ownership rights in the Mobile Phone or other equipment and you cannot terminate this agreement by returning the Mobile Phone or other equipment to Spark. The Mobile Phone or other equipment will be at your risk from the time it is received by you.

8. Charges and your account

1. In order to use the Services you will need to have a Spark Prepaid Account which is in credit. As Charges are incurred they will be deducted from the credit balance of your Spark Prepaid Account. You can add additional credit to your Spark Prepaid Account by buying and registering a Spark Prepaid Service card or voucher or by using one of the other means of payment accepted by us from time to time. For more information on how to top up your Spark Prepaid Account please refer to the Spark Website or contact Spark Customer Services. No bill will be sent to you in relation to your use of Spark Prepaid Services, however you can always check your balance by using your Mobile Device or by calling Spark Customer Services.

2. Each Spark Prepaid Service card or voucher has an expiry date printed on it and cannot be used after that date. We will not give refunds for any cards or vouchers not used by their expiry date. If you have a Spark Prepaid Service card or voucher which has not reached its expiry date and appears to be faulty, just fill in the complaints form available from any Spark retailer or by contacting Spark Customer Services. Send the form with the faulty Spark Prepaid Service card or voucher to Spark, FreePost No. 4083, Private Bag 92028, Auckland. We will check the card or voucher and, if it is faulty, send you a replacement card or voucher.

3. The Charges for calls made from your Mobile Phone are set out in your Prepaid Plan. Generally, there is a minimum one minute charge for each call and after the first minute calls are charged either per second or are rounded up and charged by the minute, depending on your Prepaid Plan. Please see the applicable Service Terms for more information about how we charge for calls on your Prepaid Plan. The Charges for our other Services are set out on the Spark Website and are also available by contacting Spark Customer Services.

4. We may change our Charges from time to time and will notify you of any changes in accordance with clause 14.

5. As we have no control of your Mobile Phone and/or SIM, you are liable for all Charges under this agreement whether incurred by you or someone else using your Mobile Phone or SIM (with or without your knowledge). This includes when your Mobile Phone or SIM has been lost or stolen and prior to us activating a block on your Mobile Phone or SIM .

6. If the credit balance on your Spark Prepaid Account is used up while you are on a call, the call will be automatically disconnected. We will not be liable for calls being disconnected after your credit has been used up.

7. If you have no credit on your Spark Prepaid Account you will not be able to make any outgoing calls (except to emergency services on 111 or to Spark Customer Services) or use any other Services that would incur a Charge.

8. Once you add credit to your Spark Prepaid Account you will need to use that credit within a period of 12 months. Any credit not used within 12 months will expire and you will need to add additional credit in order to use the Services. We will not give you a refund for any credit that expires.

9. You must add credit to your Spark Prepaid Account at least once every 12 months, otherwise your Spark Prepaid Account will be deactivated. If this happens, clause 10.2 will apply.

10. If you get a new mobile telephone number or SIM you may need a new Spark Prepaid Account for that number or SIM. Credit may not be transferred from one Spark Prepaid Account or SIM to another Spark Prepaid Account or SIM.

9. Withholding, suspending or restricting services

1. We may withhold, suspend or restrict your use of any or all of the Services or disconnect you from the Network without warning if:

  • you or anyone who uses your Mobile Phone or SIM does not comply with the terms and conditions of this agreement or any other agreement with us, including any terms and conditions relating to Additional Services;
  • you or anyone who uses your Mobile Phone or SIM damages our Network or puts our Network at risk;
  • you harass, abuse or threaten our staff;
  • you notify us that your Mobile Phone or SIM has been lost or stolen; or
  • you have made multiple complaints without a reasonable basis for doing so, and you continue to make complaints without any reasonable basis after we have requested you to stop.

2. We may also temporarily suspend your use of the Services without warning if our Network needs urgent maintenance or upgrading.

3. When we withhold, suspend, restrict or disconnect a Service for the reasons set out in clause 9.1 above, you may have to purchase a new SIM before you can use the Services again.

10. Giving up or ending services

1. You may end this agreement at any time for any reason by:

a. simply ceasing to add credit to your Spark Prepaid Account at least once every 12 months (see clause 8.9 above);

b. any unused credit on your Spark Prepaid Account will lapse (unless you are upgrading to one of our Spark Postpaid plans or you have a Spark landline or broadband account in which case we can transfer the credit to your Spark account). Where we have terminated your account in accordance with clause 10.3 and you have any unused credit on your Spark Prepaid Account we will provide you with a refund, provided you contact us and advise us how you wish to receive your refund;

c. upgrading to one of our Spark Postpaid plans; or

d. Porting your mobile phone number to another Mobile Service Provider.

2. We may end this agreement immediately without notice to you if:

a. we have the right to suspend your access to the Services for any of the reasons set out in clause 9.1 above that have not been rectified within two weeks;

b. you breach this agreement in a material way (for example, if you do something that could negatively impact on our Network) and do not put it right within seven days of us asking you to, or

c. you become insolvent or bankrupt, or a receiver, manager and receiver, or statutory manager is appointed over any or all of your assets, or any resolution is passed, or any proceeding is commenced to wind you up or liquidate you, or your poor payment history indicated, acting reasonably and in good faith, that you are unable to pay Charges.

3. If this agreement ends for one of the reasons in clause 10.1 or 10.2 above:

  1. any unused Spark Prepaid Service cards or vouchers you have will still expire on their expiry date;
  2. any unused credit on your Spark Prepaid Account will lapse (unless you are upgrading to one of our Spark Postpaid plans in which case we can transfer the credit to your Spark account). Where we have terminated your account in accordance with 10.2 and you have any unused credit on your Spark Prepaid Account we will provide you with a refund provided you contact us and advise us how you wish to receive your refund;
  3. any names, numbers and other information stored on your SIM may be lost; and
  4. unless we agree otherwise (for example, if you have transferred to another Spark mobile call plan covered by another agreement with us) or unless it has been Ported prior to giving up the Services, any mobile phone number allocated for you to use under this agreement will no longer be available to you.

4. You may temporarily or permanently give up any Additional Service by calling Spark Customer Services.

5. If you end this agreement or give up any Service and later want it reconnected, you may have to new credit and/or SIM.

6. Ending this agreement does not affect any rights and responsibilities which are intended to continue or come into force afterwards.

11. Compensation and Liability

1. As a consumer, it is important that you understand that any rights you may have, or obligations we may have to you, under the Consumer Guarantees Act 1993 and the Fair Trading Act 1986 apply alongside these Terms, and are not impacted by anything in this clause 12. The website www.consumeraffairs.govt.nz is a useful place to visit to help you understand your rights under this legislation.

2. If you are acquiring the Services for the purposes of a business as defined in the Consumer Guarantees Act 1993 you acknowledge that, to the maximum extent permitted by law, the provisions of that Act do not apply to the Services that that we provide to you under this agreement.

3. Your liability to us:

a. you accept your liability to us for breach of contract or negligence, and

b. you are not liable for any loss to the extent that it is caused by us (for example, through our breach of contract or negligence).

c. If you are ever liable to us your liability is limited to:

  • $5,000 for any event or series of related events; and
  • A total of $10,000 in respect of all events in any 12 month period.

Provided we notify you of our claim within 12 months after we reasonably become aware of the occurrence of the relevant event or series of events that gave rise to our claim. These limitations do not apply to your obligation to pay any charges, for any loss or damage caused by fraud, gross negligence, wilful breach or wilful damage.

We may become aware that we have suffered loss before you do. If we suffer any loss as a result of this agreement, we agree to take reasonable steps to avoid or minimise our loss and that you are not liable for any loss that results from our failure to take reasonable steps to do so.

4. Our liability to you:

a. subject to clauses 11.2 and 12.1, we accept our liability to you for breach of contract or negligence and for our breach of consumer protection laws, such as the Consumer Guarantees Act 1993 and the Fair Trading Act 1986.

b. we are not liable for any loss to the extent that it is caused by you (for example, through your breach of contract or negligence).

5. We are not liable to you for any indirect or consequential loss, or for any loss of profits, revenue, goodwill, business or anticipated business or anticipated profits or savings.

6. You may become aware that you have suffered loss before we do. If you suffer any loss as a result of this agreement, you agree to take reasonable steps to avoid or minimise your loss and that we are not liable for any loss that results from your failure to take reasonable steps to do so.

7. No other Spark company, network operator and/or third party supplier (including their officers, employees, contractors and agents) will be liable to you for loss or damage of any kind arising from your use of the Services. This clause creates a right and benefit that other Spark companies, network operators and/or suppliers can enforce as a defence to any claim.

8. If we or any of the other parties listed in clause 11.7 above are ever liable to you for any reason, the maximum combined amount we and all the other parties listed in clause 11.7 (together) will have to pay you and anyone else who uses the Services we provide for you (together), will be:

a. $5,000 for any event or for any series of related events; and

b. a total of $10,000 in respect of all events in any 12 month period,

provided that you notify us of your claim within 12 months after you reasonably became aware of the occurrence of the relevant event or series or events that gave rise to your claim. These limitations do not limit any rights you may have under the Consumer Guarantees Act 1993 and the Fair Trading Act 1986.

12. Force Majeure

1. We aim to provide quality services to you at all times, and exercise reasonable skill and care in performing our obligations to you. However, if we are prevented from performing any obligation in these Terms by reason of any act of God, act of State, riot, insurrection, civil commotion, strike, sanctions, boycott, embargo or any other circumstance beyond our reasonable control, we will try to advise you of the existence of the circumstances and its expected duration, and the obligations that are impacted by the circumstances. Our performance of these Terms and provision of Services to you will, to the extent that it is made impossible or impracticable by such circumstances (despite us taking reasonable steps to provide the services be suspended until such circumstances cease to exist. We are not liable to you for any failure or delay in performing any obligation set out in these Terms in the circumstances contemplated by this clause 12.1. You will not be required to pay any Charges for any Services to the extent that such Services are not provided by us due to the circumstances contemplated by this clause 12.1.

13. Information about you

1. While you have an agreement with any Spark Company, you agree that we and other Spark Companies may collect information about you. The information may be obtained from you, from others, or generated within our Network when you or anyone else uses the Services or the services of any service provider approved by us. You may decide whether to provide any information any of us request from you. However, if you do not provide it, we and other Spark Companies may not be able to provide services to you. You may ask to see information any Spark Company holds about you and ask for any details that are wrong to be corrected.

2. We, other Spark Companies and, to the extent appropriate, any service providers approved by us, including service providers providing directory listing and directory assistance services, may hold information about you and share it to the extent appropriate with each other, with Spark employees, contractors and agents and any approved service provider and with credit reference and debt collection agencies. This enables us, other Spark Companies and agencies, including credit reference and debt collection agencies, and approved service providers to provide services for you and others, send you bills, recover and report on money you owe, help prevent and investigate fraud, and keep you informed of services available to you and exercise any lawful right we or any of our related companies, our contractors, credit reference and debt collection agencies, communications network operators and selected business partners has. Credit reporters may include credit checks and any defaults in payment to us and other Spark Companies in their databases and share this information with others who wish to conduct credit checks on you.

3. From time to time we may send you sales and marketing information about Spark products and services. You can let us know at any time if you do not want to receive sales and marketing information by contacting Spark Customer Services. You also agree that the sales and marketing information we send you electronically need not include an unsubscribe facility.

4. We, and other Spark Companies may:

  • share with other network operators the mobile phone numbers allocated to you and any other information (not including your name and address) needed to enable you to make and receive calls through their networks; and
  • share, to the extent appropriate, your name, address and the mobile phone numbers allocated to you with any person (except other network operators) using services provided by any of us or any service provider approved by us for providing directory assistance and directory listing services. This information may also be used or accessed by us or any such approved service provider in or from any directories and other publicly available accessible publications and databases.

5. You may prefer to restrict access to your name, address and mobile phone numbers allocated to you. Please contact Spark Customer Services if you want to know about the ways you can do this.

6. We may occasionally monitor telephone calls between customers and our personnel so as to help train our personnel to provide better customer service. Any information we collect by doing this will be used in strict compliance with all applicable privacy laws.

7. You must contact Spark Customer Services as soon as possible about any change to your name, address or any other details you have provided to us.

14. Changing these terms

1. Changes to terms: From time to time we may need to change the terms of this agreement by changing or removing existing terms or by adding new ones. Changes may take the form of completely new terms. If we determine, acting reasonably and in good faith, that a change will have, or is likely to have a detrimental impact on you, we will give you at least two weeks’ notice of the change. We will tell you about any changes to the terms of this Agreement by SMS messaging you and/or emailing you (where we have your email address), and will publish the change on Spark Website. Your continued use of our Services after changes have been notified to you in this way indicates your acceptance of those changes. If you do not agree to the changes you may exercise your right to terminate this agreement.


2. Changes to Charges: We may change our Charges from time to time. When we decrease charges for any Services we may make the change immediately and we will tell you about the change as soon as possible after the change has been made by SMS messaging you and/or emailing you (where we have your email address), and publishing the change on Spark Website.

When we increase Charges for any of our Services (including introducing charges for Services that are currently free) and you are impacted by the change, we will give you one month’s notice of these changes. We will notify you of these changes by SMS messaging you and/or emailing you, and publishing the change on Spark Website.

3. Changes to Services: We may alter our Services from time to time. If we reasonably consider that a change to our Services is likely to benefit you or have a neutral impact on you we may make that change immediately and will tell you about the change as soon as possible after the change has been made by SMS messaging you and/or emailing you, and publishing the change on Spark Website. Examples of changes that will benefit you include inclusion of additional benefits in your Spark Prepaid Plan. Examples of changes that will have a neutral impact on include changing the name a Spark Prepaid Plan.

If we alter our Services in a way that reduces the Service offering currently received by you and the change is within our control we will provide you one month's notice, of such alterations. However, if the change is outside of our control, and it is possible, we will provide you notice of the change beforehand. If the change is outside of our control and we are unable to provide you notice of the change beforehand we will provide you notice as soon as possible after the change has been made. We will tell you about any such alterations by SMS messaging you and/or emailing you, and publishing the change on Spark Website.

We may change you to a new Spark Prepaid Plan if we consider, acting reasonably and in good faith, that you will be better off, and will give you one month’s notice of such a change by SMS messaging you and/or emailing you (where we have your email address), and publishing the change on our Website.

4. Right to Terminate: If you do not agree to any changes made in accordance with this clause, you may exercise your right to terminate this agreement by ceasing to use the Services.

15. Sending notices

We may send you notices by sending you an SMS, by emailing you (where we have your email address), or by publishing the notice on the Spark Website.

16. Meeting our responsibilities through agents and service providers

We may have any other Spark Company or Spark-approved agent or any service provider approved by us perform any of our rights and obligations under this agreement. In that case, each of those companies or agents or service providers and their officers, employees, contractors and agents will have the benefit of any terms of this agreement which confer benefits on us.

17. Transferring our responsibilities

We may transfer to someone else all or any part of our side of the agreement you have with us, for example if our company ownership and/or structure changes.

18. Severability

Each term of this agreement is separately binding. If for any reason any term is not legally effective all other terms shall remain binding and we can replace the term that is not legally effective with a term of similar meaning that is lawful and effective.

19. Waiver

A failure or delay by you or us to enforce any rights or powers under this agreement shall not operate as a waiver of that right or power. A waiver of any breach of this agreement shall not be deemed to be a waiver of any other or subsequent breach.

20. Governing Law

This agreement is governed by the laws of New Zealand and you submit to the exclusive jurisdiction of the courts of New Zealand in respect of any dispute or proceeding arising out of it.