1.1 These Terms apply to every order of Cards by you and supply of Cards by Spark to you and are deemed incorporated in each Contract.
“Business Day” means any day other than a Saturday, Sunday or a statutory public holiday in New Zealand.
“Cards” means Spark chip PhoneCardTM, GO PREPAID, Yabba, EasyCall, Talk4Less and any other card product or related product or product with a similar function or purpose to any of the card products issued from time to time by Spark and notified by Spark as being covered by these Terms.
“Contract” means each contract for the supply of Cards by a Spark Group Company to you, which shall include these Terms together with any standard order forms and other ordering instructions and guidelines we give you from time to time.
“Related Company” has the meaning given to that term in section 2 of the Companies Act 1993 (New Zealand) except that any reference to “company” in that Act will, for the purposes of this definition, be deemed to include companies incorporated under the laws of any other jurisdiction.
“Spark’s Faulty Product Replacement Process” means the process for replacing faulty Cards as notified to you by Spark from time to time “Spark” means Spark New Zealand Trading Limited, its successors and anyone to whom it transfers its rights arising from these Terms.
“Spark Group Company” means Spark New Zealand Limited and Spark New Zealand Trading Limited and every Related Company of Spark New Zealand Limited and/or Spark New Zealand Trading Limited.
“Spark Price” means the price payable by you for the Cards as notified to you by Spark from time to time.
“Terms” means the terms of trade contained in this document.
3.1 You will:
(a) order Cards using our Telesales 0800 phone number, or by completing and faxing Spark’s standard reorder form (which we may change from time to time by giving you five Business Days notice) to our fax number;
(b) pay all packaging and delivery charges (which we may change from time to time by giving you five Business Days notice) that Spark charges you in relation to any order you make which is under the minimum order amount set by Spark from time to time;
(c) pay Spark for Cards lost, stolen or damaged while in your possession or when in transit from you to Spark (if such Cards have not already been paid for);
(d) not print or affix anything on any Card without Spark’s prior written consent (for the avoidance of doubt this clause shall not be interpreted as setting the retail price for the Cards);
(e) display where easily visible to customers or provide to customers all Spark Card promotional and explanatory material provided to you, in accordance with Spark’s instructions;
(f) return promptly to Spark if requested and at our sole discretion, any unsold Cards for which payment has not been made to Spark and any other Spark property held by you; and
(g) ensure that your employees or agents or contractors comply with the terms of this agreement.
3.2 Risk and responsibility for any loss, damage or deterioration of or to the Cards shall be borne by you from the date of delivery of the Cards in accordance with clause 7.1(a).
4.1 Spark will:
(a) if it accepts your order, use reasonable endeavours to supply Cards to you in accordance with that order;
(b) supply promotional and explanatory material for Cards from time to time; and
(c) respond to complaints about defective Cards in accordance with Spark’s standard policy provided that the faulty Cards are returned in accordance with Spark’s Faulty Product Replacement Process as advised by Spark from time to time.
5.1 Orders must be placed in accordance with procedures laid down by Spark from time to time by giving you five Business Days notice.
5.2 The minimum order is $50 (face value) worth of Cards. If you order less than this amount you will pay the delivery and packaging charges of $2.50 for such order. Spark may amend the minimum order amount in its sole discretion on giving two Business Days notice to you.
5.3 park is not obliged to accept any order for Cards that you make. You acknowledge that Spark may, in its sole discretion, reject any order (or part of any order) for Cards or any particular type of Cards.
6.1 You will pay Spark for the Cards at the Spark Price (and for any delivery and packaging charges where applicable) by direct debit, which payment will be actioned by Spark from your nominated account seven to ten Business Days after Card despatch, or otherwise in the manner required by Spark from time to time.
6.2 Spark may change the Spark Price from time to time by giving you 20 Business Days notice.
6.3 Ownership of any Card will not pass to you until all amounts owing by you to Spark in respect of such Card and all other Cards delivered with such Cards have been paid.
6.4 You confirm that until ownership passes to you, you will hold all Cards for and on behalf of Spark as bailee and store them in a way that makes it clear that they are the property of Spark.
6.5 Unless Spark advises you otherwise, you may resell a Card before ownership of it passes to you, but only by way of genuine sale in the ordinary course of your business. You must account to Spark for the Spark Price of such Cards.
6.6 Spark may reclaim any such Cards in your possession or control and dispose of them for its own benefit and for that purpose you authorise Spark (as your agent) to without notice use reasonable force to enter, directly or by its agents, any premises where it believes the Cards may be stored, without in any way being liable to any person. You must indemnify Spark for any costs it incurs in the exercise of this right to reclaim any such Cards.
6.7 If you have not made payment by the due date then you are in default and default interest at 5% per annum above the current base lending rate from time to time set by the ANZ National Bank Limited calculated on a daily basis shall be payable on any moneys outstanding by you to Spark from the date payment is due until the date payment is received by Spark. This is without prejudice to Spark’s other rights and remedies in respect of non-payment or late payment. Default interest shall be payable on demand by Spark.
6.8 The charging of default interest does not imply the granting or an extension of credit to you by Spark.
7.1 The following provisions apply to the delivery of Cards:
(a) goods shall be deemed to be delivered when delivered by Spark to a carrier. If you fail or refuse, or indicate to Spark that you will fail or refuse, to take or accept delivery, then the Cards shall be deemed to have been delivered when Spark was willing and able to deliver them;
(b) any quotations of delivery times by Spark are estimates only and not commitments. Spark shall not be bound by such quotations;
(c) Spark shall not be liable to you for non-delivery or delay in delivery; and
(d) Spark will not consider any claim that all of the Cards ordered have not been delivered unless you contact us on 0800 808 242 within two Business Days of the date of delivery, or if none of the Cards have been delivered, the date when delivery of the Cards was to have occurred.
8.1 If, at the time of delivery to you, any of the Cards are damaged and cannot reasonably be offered for sale, then, provided that we are notified on 0800 808 242 of such damage within two Business Days from, and inclusive of, the date of delivery, we will replace such damaged Cards, or credit you with an amount equal to the Spark Price paid by you (exclusive of any freight, insurance and transport charges, taxes and duties). If notice is not given to us within the time specified, you will be solely responsible for any claims arising from any damage or alleged damage to the Cards no matter how caused.
8.2 If any of the Cards are faulty (for a reason other than expiry of the Cards), we will replace such Cards where in our sole discretion we determine that the Cards suffer from an inherent defect. Replacement of such Cards shall be in accordance with Spark’s Faulty Product Replacement Process as notified to you by Spark from time to time. We may amend Spark’s Faulty Product Replacement Process from time to time after providing you with one months’ written notice.
8.3 You acknowledge that the remedies provided in clauses 8.1 and 8.2 are your sole and exclusive remedies with respect to damaged, faulty or defective Cards.
8.4 Spark will not replace, refund or issue a credit for any expired Cards.
9.1 Spark may (at its discretion) end its agreement with you:
(a) at any time by giving you one months’ written notice; or
(b) immediately by written notice if you have not placed an order for more than 180 Business Days.
9.2 Three months after you have placed your first order on these terms you may end this agreement at any time by giving Spark one months’ written notice.
9.3 Spark may immediately end its agreement with you by providing written notice to you if any one or more of the following occurs:
(a) you breach or fail to properly or promptly perform any of your obligations under this agreement (including failure to make payment on the due date) and you fail to remedy that breach or perform that obligation to our satisfaction within seven Business Days after receiving written notice (inclusive of the date of receipt) from us of that failure;
(b) upon your second breach or failure to properly or promptly perform any of your obligations under any Contract (whether or not such breaches occur under the same Contract); or
(c) you become insolvent or bankrupt, go into receivership or liquidation or enter into any compromise with your creditors under the Companies Act 1993;
(d) upon the assignment of your rights out of these terms or change of effective ownership or control of your business without our prior written consent.
9.4 If Spark ends this agreement with you for any of the reasons in clause 9.3, Spark, without prejudice to any other rights or remedies, may at its option do any one or more of the following:
(a) require all moneys outstanding to be immediately due and payable and enforce the security interest created by this agreement;
(b) require you to stop selling or otherwise disposing of the Cards; or
(c) enter upon your premises where the Cards are situated and take possession of and remove all Cards without being responsible for any damage caused, and resell those Cards and apply the proceeds in satisfaction or reduction of amounts owing by you to Spark. You must indemnify Spark for any costs it incurs in the exercise of this right to reclaim the Cards. If Spark does end this agreement with you for any of the reasons in clause
9.3 then Spark and each related company (as that term is defined in the Companies Act 1993) of Spark will be entitled to cancel any other agreement then existing between you and the relevant Spark company, without having any liability to you for doing so.
10.1 You agree that:
(a) you are acquiring the Cards for the purposes of reselling them as a retailer in business;
(b) Spark’s liability to you, your employees, agents, contractors and any of your customers, whether as a result of its agreement with you for the supply of Cards or otherwise arising from the relationship between Spark and you, or Spark and your customers, will be limited to the replacement of any defective Cards returned to Spark in accordance with its instructions; and
(c) nothing in these terms should be interpreted as constituting either you or Spark as an agent, partner or employee of the other, and neither party may pledge the credit of the other nor represent to anyone that:
(i) it is the other party; or
(ii) it is an agent, partner or employee of the other party; or
(iii) it has any power or authority to incur any obligation of any nature on behalf of the other party.
10.2 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 New Zealand privacy laws.
10.3 The exercise by Spark of any express right set out in these terms (the “express right”) is without prejudice to any other rights, powers or remedies available to Spark under these terms, at law or in equity, including any rights, powers or remedies which would be available to Spark if the express rights were not set out in these terms.
11.1 You may not assign your rights arising out of these terms.
11.2 No change to these terms will be effective unless it is consented to in writing and signed by Spark. Spark may vary this agreement at any time by notice in writing to you. Any such variation will take effect from acceptance of the first order for Cards following a notice of variation being given to you.
12.1 Spark will collect and hold personal information about you for the purposes of processing and administering orders for Cards, invoicing you for Cards and supplying Cards and related material to you and informing you about new Spark products and services.
12.2 You may request Spark to give you access to your personal information and request changes if that personal information is incorrect.
12.3 You authorise Spark to:
(a) obtain information about you (including credit checks, or other aspects of your financial affairs) from others as Spark considers necessary for the purposes in clause 12.1;
(b) disclose your personal information to other Spark companies, credit rating and credit reporting agencies and to any person involved in collecting any debt; and
(c) share this information with other Spark companies to help Spark provide better service to you.
(d) Credit reporters may include credit checks and any defaults in payment to Spark in their databases and share this information with others who wish to conduct credit checks on you.
13.1 Each related company (as the term is defined in the Companies Act 1993) of Spark which supplies Cards is entitled to the benefit of the terms in this agreement in accordance with the Contracts (Privity) Act 1982 and, in addition, Spark is entitled to enforce the terms in this agreement on behalf of any of its related companies. However, the consent of such related companies of Spark is not required to any variation, amendment or discharge of the terms of this agreement.
13.2 You agree as follows:
(a) nothing in any Contract is intended to have the effect of contracting out of the provisions of the Consumer
Guarantees Act 1993 (“CGA”) except to the extent permitted by the CGA, and all provisions of this agreement shall be read as modified to the extent necessary to give effect to that intention;
(b) you shall not, in relation to your supply of Cards, give or make any undertaking, assertion or representation in relation to the Cards without the prior written approval of Spark; and
(c) you shall, in relation to your supply of Cards, contract out of the provisions of the CGA to the extent that you are entitled to do so under the CGA.
13.3 You acknowledge that you do not rely on any representation or statement made by or on behalf of Spark or its employees or agents other than the express provisions of these Terms.
13.4 Spark shall not be liable for any loss of profits or any consequential, indirect or special damage or loss of any kind suffered by you (or any of your employees, agents or representatives).
13.5 Notwithstanding anything else contained in any Contract, Spark’s liability to you shall not in aggregate exceed the invoice price of the Cards in respect of which the liability arises.
1.1 These Terms apply to every order of Cards by you and supply of Cards by Spark to you and are deemed incorporated in each Contract.
“Business Day” means any day other than a Saturday, Sunday or a statutory public holiday in New Zealand.
“Cards” means Spark chip PhoneCardTM, GO PREPAID, Yabba, EasyCall, Talk4Less and any other card product or related product or product with a similar function or purpose to any of the card products issued from time to time by Spark and notified by Spark as being covered by these Terms.
“Contract” means each contract for the supply of Cards by a Spark Group Company to you, which shall include these Terms together with any standard order forms and other ordering instructions and guidelines we give you from time to time.
“Related Company” has the meaning given to that term in section 2 of the Companies Act 1993 (New Zealand) except that any reference to “company” in that Act will, for the purposes of this definition, be deemed to include companies incorporated under the laws of any other jurisdiction.
“Spark’s Faulty Product Replacement Process” means the process for replacing faulty Cards as notified to you by Spark from time to time “Spark” means Spark New Zealand Trading Limited, its successors and anyone to whom it transfers its rights arising from these Terms.
“Spark Group Company” means Spark New Zealand Limited and Spark New Zealand Trading Limited and every Related Company of Spark New Zealand Limited and/or Spark New Zealand Trading Limited.
“Spark Price” means the price payable by you for the Cards as notified to you by Spark from time to time.
“Terms” means the terms of trade contained in this document.
3.1 You will:
(a) order Cards using our Telesales 0800 phone number, or by completing and faxing Spark’s standard reorder form (which we may change from time to time by giving you five Business Days notice) to our fax number;
(b) pay all packaging and delivery charges (which we may change from time to time by giving you five Business Days notice) that Spark charges you in relation to any order you make which is under the minimum order amount set by Spark from time to time;
(c) pay Spark for Cards lost, stolen or damaged while in your possession or when in transit from you to Spark (if such Cards have not already been paid for);
(d) not print or affix anything on any Card without Spark’s prior written consent (for the avoidance of doubt this clause shall not be interpreted as setting the retail price for the Cards);
(e) display where easily visible to customers or provide to customers all Spark Card promotional and explanatory material provided to you, in accordance with Spark’s instructions;
(f) return promptly to Spark if requested and at our sole discretion, any unsold Cards for which payment has not been made to Spark and any other Spark property held by you; and
(g) ensure that your employees or agents or contractors comply with the terms of this agreement.
3.2 Risk and responsibility for any loss, damage or deterioration of or to the Cards shall be borne by you from the date of delivery of the Cards in accordance with clause 7.1(a).
4.1 Spark will:
(a) if it accepts your order, use reasonable endeavours to supply Cards to you in accordance with that order;
(b) supply promotional and explanatory material for Cards from time to time; and
(c) respond to complaints about defective Cards in accordance with Spark’s standard policy provided that the faulty Cards are returned in accordance with Spark’s Faulty Product Replacement Process as advised by Spark from time to time.
5.1 Orders must be placed in accordance with procedures laid down by Spark from time to time by giving you five Business Days notice.
5.2 The minimum order is $50 (face value) worth of Cards. If you order less than this amount you will pay the delivery and packaging charges of $2.50 for such order. Spark may amend the minimum order amount in its sole discretion on giving two Business Days notice to you.
5.3 park is not obliged to accept any order for Cards that you make. You acknowledge that Spark may, in its sole discretion, reject any order (or part of any order) for Cards or any particular type of Cards.
6.1 You will pay Spark for the Cards at the Spark Price (and for any delivery and packaging charges where applicable) by direct debit, which payment will be actioned by Spark from your nominated account seven to ten Business Days after Card despatch, or otherwise in the manner required by Spark from time to time.
6.2 Spark may change the Spark Price from time to time by giving you 20 Business Days notice.
6.3 Ownership of any Card will not pass to you until all amounts owing by you to Spark in respect of such Card and all other Cards delivered with such Cards have been paid.
6.4 You confirm that until ownership passes to you, you will hold all Cards for and on behalf of Spark as bailee and store them in a way that makes it clear that they are the property of Spark.
6.5 Unless Spark advises you otherwise, you may resell a Card before ownership of it passes to you, but only by way of genuine sale in the ordinary course of your business. You must account to Spark for the Spark Price of such Cards.
6.6 Spark may reclaim any such Cards in your possession or control and dispose of them for its own benefit and for that purpose you authorise Spark (as your agent) to without notice use reasonable force to enter, directly or by its agents, any premises where it believes the Cards may be stored, without in any way being liable to any person. You must indemnify Spark for any costs it incurs in the exercise of this right to reclaim any such Cards.
6.7 If you have not made payment by the due date then you are in default and default interest at 5% per annum above the current base lending rate from time to time set by the ANZ National Bank Limited calculated on a daily basis shall be payable on any moneys outstanding by you to Spark from the date payment is due until the date payment is received by Spark. This is without prejudice to Spark’s other rights and remedies in respect of non-payment or late payment. Default interest shall be payable on demand by Spark.
6.8 The charging of default interest does not imply the granting or an extension of credit to you by Spark.
7.1 The following provisions apply to the delivery of Cards:
(a) goods shall be deemed to be delivered when delivered by Spark to a carrier. If you fail or refuse, or indicate to Spark that you will fail or refuse, to take or accept delivery, then the Cards shall be deemed to have been delivered when Spark was willing and able to deliver them;
(b) any quotations of delivery times by Spark are estimates only and not commitments. Spark shall not be bound by such quotations;
(c) Spark shall not be liable to you for non-delivery or delay in delivery; and
(d) Spark will not consider any claim that all of the Cards ordered have not been delivered unless you contact us on 0800 808 242 within two Business Days of the date of delivery, or if none of the Cards have been delivered, the date when delivery of the Cards was to have occurred.
8.1 If, at the time of delivery to you, any of the Cards are damaged and cannot reasonably be offered for sale, then, provided that we are notified on 0800 808 242 of such damage within two Business Days from, and inclusive of, the date of delivery, we will replace such damaged Cards, or credit you with an amount equal to the Spark Price paid by you (exclusive of any freight, insurance and transport charges, taxes and duties). If notice is not given to us within the time specified, you will be solely responsible for any claims arising from any damage or alleged damage to the Cards no matter how caused.
8.2 If any of the Cards are faulty (for a reason other than expiry of the Cards), we will replace such Cards where in our sole discretion we determine that the Cards suffer from an inherent defect. Replacement of such Cards shall be in accordance with Spark’s Faulty Product Replacement Process as notified to you by Spark from time to time. We may amend Spark’s Faulty Product Replacement Process from time to time after providing you with one months’ written notice.
8.3 You acknowledge that the remedies provided in clauses 8.1 and 8.2 are your sole and exclusive remedies with respect to damaged, faulty or defective Cards.
8.4 Spark will not replace, refund or issue a credit for any expired Cards.
9.1 Spark may (at its discretion) end its agreement with you:
(a) at any time by giving you one months’ written notice; or
(b) immediately by written notice if you have not placed an order for more than 180 Business Days.
9.2 Three months after you have placed your first order on these terms you may end this agreement at any time by giving Spark one months’ written notice.
9.3 Spark may immediately end its agreement with you by providing written notice to you if any one or more of the following occurs:
(a) you breach or fail to properly or promptly perform any of your obligations under this agreement (including failure to make payment on the due date) and you fail to remedy that breach or perform that obligation to our satisfaction within seven Business Days after receiving written notice (inclusive of the date of receipt) from us of that failure;
(b) upon your second breach or failure to properly or promptly perform any of your obligations under any Contract (whether or not such breaches occur under the same Contract); or
(c) you become insolvent or bankrupt, go into receivership or liquidation or enter into any compromise with your creditors under the Companies Act 1993;
(d) upon the assignment of your rights out of these terms or change of effective ownership or control of your business without our prior written consent.
9.4 If Spark ends this agreement with you for any of the reasons in clause 9.3, Spark, without prejudice to any other rights or remedies, may at its option do any one or more of the following:
(a) require all moneys outstanding to be immediately due and payable and enforce the security interest created by this agreement;
(b) require you to stop selling or otherwise disposing of the Cards; or
(c) enter upon your premises where the Cards are situated and take possession of and remove all Cards without being responsible for any damage caused, and resell those Cards and apply the proceeds in satisfaction or reduction of amounts owing by you to Spark. You must indemnify Spark for any costs it incurs in the exercise of this right to reclaim the Cards. If Spark does end this agreement with you for any of the reasons in clause
9.3 then Spark and each related company (as that term is defined in the Companies Act 1993) of Spark will be entitled to cancel any other agreement then existing between you and the relevant Spark company, without having any liability to you for doing so.
10.1 You agree that:
(a) you are acquiring the Cards for the purposes of reselling them as a retailer in business;
(b) Spark’s liability to you, your employees, agents, contractors and any of your customers, whether as a result of its agreement with you for the supply of Cards or otherwise arising from the relationship between Spark and you, or Spark and your customers, will be limited to the replacement of any defective Cards returned to Spark in accordance with its instructions; and
(c) nothing in these terms should be interpreted as constituting either you or Spark as an agent, partner or employee of the other, and neither party may pledge the credit of the other nor represent to anyone that:
(i) it is the other party; or
(ii) it is an agent, partner or employee of the other party; or
(iii) it has any power or authority to incur any obligation of any nature on behalf of the other party.
10.2 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 New Zealand privacy laws.
10.3 The exercise by Spark of any express right set out in these terms (the “express right”) is without prejudice to any other rights, powers or remedies available to Spark under these terms, at law or in equity, including any rights, powers or remedies which would be available to Spark if the express rights were not set out in these terms.
11.1 You may not assign your rights arising out of these terms.
11.2 No change to these terms will be effective unless it is consented to in writing and signed by Spark. Spark may vary this agreement at any time by notice in writing to you. Any such variation will take effect from acceptance of the first order for Cards following a notice of variation being given to you.
12.1 Spark will collect and hold personal information about you for the purposes of processing and administering orders for Cards, invoicing you for Cards and supplying Cards and related material to you and informing you about new Spark products and services.
12.2 You may request Spark to give you access to your personal information and request changes if that personal information is incorrect.
12.3 You authorise Spark to:
(a) obtain information about you (including credit checks, or other aspects of your financial affairs) from others as Spark considers necessary for the purposes in clause 12.1;
(b) disclose your personal information to other Spark companies, credit rating and credit reporting agencies and to any person involved in collecting any debt; and
(c) share this information with other Spark companies to help Spark provide better service to you.
(d) Credit reporters may include credit checks and any defaults in payment to Spark in their databases and share this information with others who wish to conduct credit checks on you.
13.1 Each related company (as the term is defined in the Companies Act 1993) of Spark which supplies Cards is entitled to the benefit of the terms in this agreement in accordance with the Contracts (Privity) Act 1982 and, in addition, Spark is entitled to enforce the terms in this agreement on behalf of any of its related companies. However, the consent of such related companies of Spark is not required to any variation, amendment or discharge of the terms of this agreement.
13.2 You agree as follows:
(a) nothing in any Contract is intended to have the effect of contracting out of the provisions of the Consumer
Guarantees Act 1993 (“CGA”) except to the extent permitted by the CGA, and all provisions of this agreement shall be read as modified to the extent necessary to give effect to that intention;
(b) you shall not, in relation to your supply of Cards, give or make any undertaking, assertion or representation in relation to the Cards without the prior written approval of Spark; and
(c) you shall, in relation to your supply of Cards, contract out of the provisions of the CGA to the extent that you are entitled to do so under the CGA.
13.3 You acknowledge that you do not rely on any representation or statement made by or on behalf of Spark or its employees or agents other than the express provisions of these Terms.
13.4 Spark shall not be liable for any loss of profits or any consequential, indirect or special damage or loss of any kind suffered by you (or any of your employees, agents or representatives).
13.5 Notwithstanding anything else contained in any Contract, Spark’s liability to you shall not in aggregate exceed the invoice price of the Cards in respect of which the liability arises.
1.1 These Terms apply to every order of Cards by you and supply of Cards by Spark to you and are deemed incorporated in each Contract.
“Business Day” means any day other than a Saturday, Sunday or a statutory public holiday in New Zealand.
“Cards” means Spark chip PhoneCardTM, GO PREPAID, Yabba, EasyCall, Talk4Less and any other card product or related product or product with a similar function or purpose to any of the card products issued from time to time by Spark and notified by Spark as being covered by these Terms.
“Contract” means each contract for the supply of Cards by a Spark Group Company to you, which shall include these Terms together with any standard order forms and other ordering instructions and guidelines we give you from time to time.
“Related Company” has the meaning given to that term in section 2 of the Companies Act 1993 (New Zealand) except that any reference to “company” in that Act will, for the purposes of this definition, be deemed to include companies incorporated under the laws of any other jurisdiction.
“Spark’s Faulty Product Replacement Process” means the process for replacing faulty Cards as notified to you by Spark from time to time “Spark” means Spark New Zealand Trading Limited, its successors and anyone to whom it transfers its rights arising from these Terms.
“Spark Group Company” means Spark New Zealand Limited and Spark New Zealand Trading Limited and every Related Company of Spark New Zealand Limited and/or Spark New Zealand Trading Limited.
“Spark Price” means the price payable by you for the Cards as notified to you by Spark from time to time.
“Terms” means the terms of trade contained in this document.
3.1 You will:
(a) order Cards using our Telesales 0800 phone number, or by completing and faxing Spark’s standard reorder form (which we may change from time to time by giving you five Business Days notice) to our fax number;
(b) pay all packaging and delivery charges (which we may change from time to time by giving you five Business Days notice) that Spark charges you in relation to any order you make which is under the minimum order amount set by Spark from time to time;
(c) pay Spark for Cards lost, stolen or damaged while in your possession or when in transit from you to Spark (if such Cards have not already been paid for);
(d) not print or affix anything on any Card without Spark’s prior written consent (for the avoidance of doubt this clause shall not be interpreted as setting the retail price for the Cards);
(e) display where easily visible to customers or provide to customers all Spark Card promotional and explanatory material provided to you, in accordance with Spark’s instructions;
(f) return promptly to Spark if requested and at our sole discretion, any unsold Cards for which payment has not been made to Spark and any other Spark property held by you; and
(g) ensure that your employees or agents or contractors comply with the terms of this agreement.
3.2 Risk and responsibility for any loss, damage or deterioration of or to the Cards shall be borne by you from the date of delivery of the Cards in accordance with clause 7.1(a).
4.1 Spark will:
(a) if it accepts your order, use reasonable endeavours to supply Cards to you in accordance with that order;
(b) supply promotional and explanatory material for Cards from time to time; and
(c) respond to complaints about defective Cards in accordance with Spark’s standard policy provided that the faulty Cards are returned in accordance with Spark’s Faulty Product Replacement Process as advised by Spark from time to time.
5.1 Orders must be placed in accordance with procedures laid down by Spark from time to time by giving you five Business Days notice.
5.2 The minimum order is $50 (face value) worth of Cards. If you order less than this amount you will pay the delivery and packaging charges of $2.50 for such order. Spark may amend the minimum order amount in its sole discretion on giving two Business Days notice to you.
5.3 park is not obliged to accept any order for Cards that you make. You acknowledge that Spark may, in its sole discretion, reject any order (or part of any order) for Cards or any particular type of Cards.
6.1 You will pay Spark for the Cards at the Spark Price (and for any delivery and packaging charges where applicable) by direct debit, which payment will be actioned by Spark from your nominated account seven to ten Business Days after Card despatch, or otherwise in the manner required by Spark from time to time.
6.2 Spark may change the Spark Price from time to time by giving you 20 Business Days notice.
6.3 Ownership of any Card will not pass to you until all amounts owing by you to Spark in respect of such Card and all other Cards delivered with such Cards have been paid.
6.4 You confirm that until ownership passes to you, you will hold all Cards for and on behalf of Spark as bailee and store them in a way that makes it clear that they are the property of Spark.
6.5 Unless Spark advises you otherwise, you may resell a Card before ownership of it passes to you, but only by way of genuine sale in the ordinary course of your business. You must account to Spark for the Spark Price of such Cards.
6.6 Spark may reclaim any such Cards in your possession or control and dispose of them for its own benefit and for that purpose you authorise Spark (as your agent) to without notice use reasonable force to enter, directly or by its agents, any premises where it believes the Cards may be stored, without in any way being liable to any person. You must indemnify Spark for any costs it incurs in the exercise of this right to reclaim any such Cards.
6.7 If you have not made payment by the due date then you are in default and default interest at 5% per annum above the current base lending rate from time to time set by the ANZ National Bank Limited calculated on a daily basis shall be payable on any moneys outstanding by you to Spark from the date payment is due until the date payment is received by Spark. This is without prejudice to Spark’s other rights and remedies in respect of non-payment or late payment. Default interest shall be payable on demand by Spark.
6.8 The charging of default interest does not imply the granting or an extension of credit to you by Spark.
7.1 The following provisions apply to the delivery of Cards:
(a) goods shall be deemed to be delivered when delivered by Spark to a carrier. If you fail or refuse, or indicate to Spark that you will fail or refuse, to take or accept delivery, then the Cards shall be deemed to have been delivered when Spark was willing and able to deliver them;
(b) any quotations of delivery times by Spark are estimates only and not commitments. Spark shall not be bound by such quotations;
(c) Spark shall not be liable to you for non-delivery or delay in delivery; and
(d) Spark will not consider any claim that all of the Cards ordered have not been delivered unless you contact us on 0800 808 242 within two Business Days of the date of delivery, or if none of the Cards have been delivered, the date when delivery of the Cards was to have occurred.
8.1 If, at the time of delivery to you, any of the Cards are damaged and cannot reasonably be offered for sale, then, provided that we are notified on 0800 808 242 of such damage within two Business Days from, and inclusive of, the date of delivery, we will replace such damaged Cards, or credit you with an amount equal to the Spark Price paid by you (exclusive of any freight, insurance and transport charges, taxes and duties). If notice is not given to us within the time specified, you will be solely responsible for any claims arising from any damage or alleged damage to the Cards no matter how caused.
8.2 If any of the Cards are faulty (for a reason other than expiry of the Cards), we will replace such Cards where in our sole discretion we determine that the Cards suffer from an inherent defect. Replacement of such Cards shall be in accordance with Spark’s Faulty Product Replacement Process as notified to you by Spark from time to time. We may amend Spark’s Faulty Product Replacement Process from time to time after providing you with one months’ written notice.
8.3 You acknowledge that the remedies provided in clauses 8.1 and 8.2 are your sole and exclusive remedies with respect to damaged, faulty or defective Cards.
8.4 Spark will not replace, refund or issue a credit for any expired Cards.
9.1 Spark may (at its discretion) end its agreement with you:
(a) at any time by giving you one months’ written notice; or
(b) immediately by written notice if you have not placed an order for more than 180 Business Days.
9.2 Three months after you have placed your first order on these terms you may end this agreement at any time by giving Spark one months’ written notice.
9.3 Spark may immediately end its agreement with you by providing written notice to you if any one or more of the following occurs:
(a) you breach or fail to properly or promptly perform any of your obligations under this agreement (including failure to make payment on the due date) and you fail to remedy that breach or perform that obligation to our satisfaction within seven Business Days after receiving written notice (inclusive of the date of receipt) from us of that failure;
(b) upon your second breach or failure to properly or promptly perform any of your obligations under any Contract (whether or not such breaches occur under the same Contract); or
(c) you become insolvent or bankrupt, go into receivership or liquidation or enter into any compromise with your creditors under the Companies Act 1993;
(d) upon the assignment of your rights out of these terms or change of effective ownership or control of your business without our prior written consent.
9.4 If Spark ends this agreement with you for any of the reasons in clause 9.3, Spark, without prejudice to any other rights or remedies, may at its option do any one or more of the following:
(a) require all moneys outstanding to be immediately due and payable and enforce the security interest created by this agreement;
(b) require you to stop selling or otherwise disposing of the Cards; or
(c) enter upon your premises where the Cards are situated and take possession of and remove all Cards without being responsible for any damage caused, and resell those Cards and apply the proceeds in satisfaction or reduction of amounts owing by you to Spark. You must indemnify Spark for any costs it incurs in the exercise of this right to reclaim the Cards. If Spark does end this agreement with you for any of the reasons in clause
9.3 then Spark and each related company (as that term is defined in the Companies Act 1993) of Spark will be entitled to cancel any other agreement then existing between you and the relevant Spark company, without having any liability to you for doing so.
10.1 You agree that:
(a) you are acquiring the Cards for the purposes of reselling them as a retailer in business;
(b) Spark’s liability to you, your employees, agents, contractors and any of your customers, whether as a result of its agreement with you for the supply of Cards or otherwise arising from the relationship between Spark and you, or Spark and your customers, will be limited to the replacement of any defective Cards returned to Spark in accordance with its instructions; and
(c) nothing in these terms should be interpreted as constituting either you or Spark as an agent, partner or employee of the other, and neither party may pledge the credit of the other nor represent to anyone that:
(i) it is the other party; or
(ii) it is an agent, partner or employee of the other party; or
(iii) it has any power or authority to incur any obligation of any nature on behalf of the other party.
10.2 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 New Zealand privacy laws.
10.3 The exercise by Spark of any express right set out in these terms (the “express right”) is without prejudice to any other rights, powers or remedies available to Spark under these terms, at law or in equity, including any rights, powers or remedies which would be available to Spark if the express rights were not set out in these terms.
11.1 You may not assign your rights arising out of these terms.
11.2 No change to these terms will be effective unless it is consented to in writing and signed by Spark. Spark may vary this agreement at any time by notice in writing to you. Any such variation will take effect from acceptance of the first order for Cards following a notice of variation being given to you.
12.1 Spark will collect and hold personal information about you for the purposes of processing and administering orders for Cards, invoicing you for Cards and supplying Cards and related material to you and informing you about new Spark products and services.
12.2 You may request Spark to give you access to your personal information and request changes if that personal information is incorrect.
12.3 You authorise Spark to:
(a) obtain information about you (including credit checks, or other aspects of your financial affairs) from others as Spark considers necessary for the purposes in clause 12.1;
(b) disclose your personal information to other Spark companies, credit rating and credit reporting agencies and to any person involved in collecting any debt; and
(c) share this information with other Spark companies to help Spark provide better service to you.
(d) Credit reporters may include credit checks and any defaults in payment to Spark in their databases and share this information with others who wish to conduct credit checks on you.
13.1 Each related company (as the term is defined in the Companies Act 1993) of Spark which supplies Cards is entitled to the benefit of the terms in this agreement in accordance with the Contracts (Privity) Act 1982 and, in addition, Spark is entitled to enforce the terms in this agreement on behalf of any of its related companies. However, the consent of such related companies of Spark is not required to any variation, amendment or discharge of the terms of this agreement.
13.2 You agree as follows:
(a) nothing in any Contract is intended to have the effect of contracting out of the provisions of the Consumer
Guarantees Act 1993 (“CGA”) except to the extent permitted by the CGA, and all provisions of this agreement shall be read as modified to the extent necessary to give effect to that intention;
(b) you shall not, in relation to your supply of Cards, give or make any undertaking, assertion or representation in relation to the Cards without the prior written approval of Spark; and
(c) you shall, in relation to your supply of Cards, contract out of the provisions of the CGA to the extent that you are entitled to do so under the CGA.
13.3 You acknowledge that you do not rely on any representation or statement made by or on behalf of Spark or its employees or agents other than the express provisions of these Terms.
13.4 Spark shall not be liable for any loss of profits or any consequential, indirect or special damage or loss of any kind suffered by you (or any of your employees, agents or representatives).
13.5 Notwithstanding anything else contained in any Contract, Spark’s liability to you shall not in aggregate exceed the invoice price of the Cards in respect of which the liability arises.