Spark Mobile Postpaid Agreement

Spark Mobile Postpaid Agreement

Spark Mobile Postpaid Agreement

Updated: 4 May 2017

Updated: 4 May 2017

Updated: 4 May 2017

  1. Our agreement
  2. Interpretation
  3. Terms of agreement
  4. Provision of Services
  5. Mobile Device numbers
  6. Wireless data and content
  7. Mobile Device and SIM
  8. Charges and billing
  9. Mobile plans and your allowance
  10. Withholding, suspending, disconnecting or restricting services
  11. Giving up or ending services
  12. Compensation and liability
  13. Force majeure
  14. Information about you
  15. Changing these terms, Charges and Services
  16. Sending notices
  17. Meeting our responsibilities through agents and service providers
  18. Transferring our responsibilities
  19. More than one customer
  20. Severability
  21. Waiver
  22. Governing law
  23. Definitions

1. Our agreement

1. If you have a Spark Postpaid connection that operates on our Network (for example, a pay monthly plan) then you are a Spark customer. You will need to read this Spark Mobile Postpaid agreement set out below, the Schedule of Disconnection Fees and Transfer Charges (if you are on a Minimum Term) and applicable Spark Mobile Service specific terms and conditions set out on Spark Website (together, “agreement”) which govern our contractual relationship with you for the provision of Spark Postpaid Services on our Network.

2. This agreement applies to all new Spark Postpaid customers who have signed up for the Services on and from 16 March 2015. If you signed up for our Services before 16 March 2015 the Mobile Postpaid Agreement dated 21 September 2012 applies to you.

3. We may amend this agreement from time to time in accordance with clause 15 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 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 Base Plan and any specific terms and conditions relating to the Services you use and any Extras you subscribe to. If there is any conflict or inconsistency between:

a. the terms and conditions set out in this agreement; and

b. the terms and conditions relating to your Base Plan or the specific terms and conditions relating to the Services you use and any Extras you subscribe to,
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 in the Definitions section 23 at the end of this agreement.

3. Term of agreement

1. This agreement starts once we accept your application to use the Services. Your application will be accepted once we have satisfied ourselves, acting reasonably and in good faith, of your eligibility for the Services, their availability to you and that you meet our standard credit requirements. We will let you know when your application is accepted.

2. This agreement will continue for at least the Minimum Term, unless it is terminated in any of the ways described in clause 11.

3. If you do not have a Minimum Term or if your Minimum Term has finished, we will continue to provide you with the Services until this agreement is terminated in any of the ways described in clause 11.

4. Provision of Services

1. Spark Postpaid Services allow you to make and receive most local, national and international calls (when within our Network coverage area) using a capable Mobile Device, 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 Device, 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 give you notice and 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. comply with the law and all the relevant codes and regulations and not use your Mobile Device or the Services in a way which we consider, acting reasonably and in good faith, to be abusive or offensive or for an illegal or fraudulent purpose;

c. 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;

d. 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;

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

f. not use your Mobile Device 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 Devices 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. 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 Device;

j. 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. 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 Device 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 Device 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 to any other person.

7. You agree to make sure everyone who uses your Mobile Device 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 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 Device or SIM, we will allocate a mobile phone number to you for use with your Mobile Device 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 Device or SIM. Where we are required to change your allocated mobile phone number we will give you notice of this change.

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

a. you will need to contact that other Mobile Service Provider;

b. you will be responsible for taking all necessary steps to Port your mobile phone number, other than our obligations under the LMNP Terms; and

c. you will be responsible for all costs associated with Porting your 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 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 for our decision.

3. We are not responsible for:

a. ensuring that any Content you access or make available through use of 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 your Mobile Device, or transmitted over our Network;

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

f. fixing any faults in your Mobile Device or SIM that occur 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 Device. You are responsible for ensuring that your Mobile Device 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 Device 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 Device 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 Device 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 Device.

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 will have a new PUK1 Code, if you wish to continue using the Services.

4. You must inform us immediately if your Mobile Device 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 Device or the SIM up to the time you inform us that your Mobile Device or SIM is lost or stolen and we activate a block on your Mobile Device, whether the Charges have been incurred by you or someone else. If your Mobile Device is lost, stolen, damaged or destroyed, you will need to purchase a new Mobile Device and/or SIM if you wish to continue using the Services.

5. If equipment, including your Mobile Device and SIM, supplied to you by someone other than us 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 is damaged as a result of 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. Any responsibilities we may have for a Mobile Device or other equipment that you buy directly from us will be covered by a separate warranty or sales agreement for that Mobile Device or other equipment.

8. Charges and billing

Mobile Devices

1. You must pay the purchase price of any Mobile Device and/or other equipment you buy from us, which is the price agreed at the time of purchase. You cannot terminate this agreement by returning any Mobile Device and other equipment to us. From the time we deliver the Mobile Device and other equipment to you, you will own the Mobile Device and other equipment and they will be at your risk.

2. Where the payment method for the purchase price of your Mobile Device or other equipment is on account (in other words, on your bill) you agree that:

a. the full purchase price of the Mobile Device and/or other equipment will be debited to your Spark account when you accept this agreement,

b. you are responsible for repaying the amount in full by the due date stated on your bill.

3. In order to make it easier for you to own a Mobile Device and other equipment we offer a deferred payment method for the purchase price of your Mobile Device and other equipment by instalments on your account (“Installment Payment/s”). Where you take up this offer you agree that:

c. you will pay each instalment amount set by us by the due date stated on your bill, until the balance owing has been repaid in full.

d. the Mobile Device will remain on an eligible Spark Mobile plan at least until you have repaid all of the purchase price of the Mobile Device and/or other equipment to us.

e. you will pay the late payment fee set out on Spark Website (http://www.spark.co.nz/help/billing/pay-my-bill/late-payment-fee/) for each month that we do not receive your minimum Instalment Payment on or before the due date stated on your bill, which reflects the actual costs to us in recovering the late payment.

f. where you have not met your payment obligations to us we may, acting reasonably and in good faith, set-off payments we receive from you against any other amounts owed by you to Spark that have not been paid in full by the due date. This may cause your Instalment Payments to remain unpaid and, as a result, you may incur late payment fees as set out in clause 8(c) above.

g. if all or any part of an Instalment Payment is not paid by its due date or you transfer your services to an ineligible Spark plan, we may suspend, withdraw or disconnect your Services; and

h. if you are disconnected from the Network in accordance with the terms of this Agreement or decide to transfer to an ineligible plan, before all Instalment Payments have been paid in full, Spark may aggregate on your Spark account, and you must pay by the due date, all amounts owed to us under this Agreement including, without limitation, the aggregated total of all unpaid Instalment Payments.

Services

4. There is a monthly or other agreed billing period for your use of the Services, which shall commence from the date we accept your application to use the Services. Unless we otherwise agree, we will make your bills available to you for each billing period free of charge by electronic mail only. If you joined Spark on or before 30 July 2016 and chose to receive your bill by post for $1.50 per bill, we will continue to provide you with that service. The bill will specify the total amount of the Charges you owe us and the date by which such amount must be paid to us. Charges for Mobile Plans and different Services may be billed in advance or in arrears, as set out on the Spark Website.

5. The Charges for calls, texts and/or data made from your Mobile Device are set out in your Base Plan. Generally, there is a minimum one minute charge for each call and after the first minute calls are charged by the minute, unless stated in your specific Base Plan pricing. If you use up your Allowance during a call, text and/or data session or you do not have an Allowance, you will be charged for the rest of the call, text and/or data usage at the applicable rate set out in your Base Plan. If you call or text 0900 numbers or special numbers such as 018, short codes or those provided through calling cards, you will be charged at the rate published by the service provider of that number in addition to the usual Charges for calls and texts as set out in your Base Plan. Please see your Base Plan for more information about Charges for calls, texts and/or data.

6. The Charges for Mobile Plans and all Services are set out on the Spark Website and are also available by contacting Spark Customer Services and through the My Spark application on your Mobile Device.

7. We may change our Charges from time to time. Where we do this we will notify you of any changes in accordance with clause 15 and you will have the rights outlined in that clause.

8. As we have no control over your Mobile Device and SIM you are liable for all Charges under this agreement whether incurred by you or someone else using your Mobile Device or SIM (with or without your knowledge). This includes, where your Mobile Device or SIM has been lost or stolen, all Charges incurred prior to us activating a block on your Mobile Device or SIM. If you no longer want to use the Services you must deactivate your SIM. Removing your SIM from your Mobile Device will not deactivate the SIM. If you do not know how to deactivate your SIM call Spark Customer Services.

9. The Charges that apply to Roaming are in addition to any other Charges which apply to your Mobile Plans. The Charges for Roaming may include Charges for voice calls and other messages sent and received or for accessing Content. The Charges for Roaming will be determined by Spark and/or the overseas network operator. These Charges will vary between overseas networks and may change from time to time. To help you manage the Charges when you are Roaming you can check out our helpful Roaming tips on our Website. You can also find information on Roaming Charges by calling Spark Customer Services or by visiting the Spark Website.

10. If we, acting reasonably and in good faith, consider you are a credit risk, we may impose credit limits for your use of the Services and we will notify you before we impose such limits. You must observe any credit limit we set from time to time.

11. Please let us know as soon as possible if you think that there is a mistake in your bill, either before or after you have paid your bill. We will investigate the matter as soon as possible. While you wait to hear from us, you need pay only the undisputed part of the bill by the due date for payment. If we agree there is a mistake, we will adjust your next bill or, if appropriate, provide a refund. If we find, acting reasonably and in good faith, there is no mistake we will provide you with the reason for our decision and, if the due date for payment has already passed, you must pay the amount outstanding within 7 days.

12. If you do not pay a bill by the due date for payment stated on that bill you may be charged a late payment fee, which reflects the cost to us of recovering money owed to us. We may also charge you for any reasonable administration or collection costs (including legal costs on a solicitor and client basis) which we incur if you don't pay your bill on time and in full.

13. Where you have not met your payment obligations to us, we may, acting reasonably and in good faith, off-set any credit balance on any of your Spark accounts, or any money we would otherwise be required to pay you, against any amounts you owe us under this agreement (including any Charges that have not been paid by the due date). Subject to these rights, we will refund any monetary credit balance on your account at the end of this agreement.

9. Mobile plans and your allowance

1. You may change between Mobile Plans only in accordance with the terms and conditions relating to the relevant Mobile Plan. You may have to give us a certain period of notice before you can change and Transfer Charges and/or Disconnection Fees may apply. It is your responsibility to check what, if any, special terms and conditions exist for different Mobile Plans and if there are any fees for changing between them.

2. Where you have a Minimum Term and you choose to change from a higher tiered Postpaid Base Plan to a lower tiered Postpaid Base Plan before the end of that Minimum Term a Transfer Charge applies. To find out the tier of your Base Plan and the applicable Transfer Charge please refer to the relevant Schedule of Disconnection Fees and Transfer Charges published on the Spark Website or call Spark Customer Services from your Mobile Device.

3. If you choose to change from a Postpaid Base Plan to a Spark prepaid plan you will need to terminate this agreement in accordance with clause 11 and sign up to a new agreement relating to the prepaid plan. If you have a Minimum Term and you change plans before the end of the Minimum Term Disconnection Fees will apply.

4. The Allowance under your Base Plan and each Extra you subscribe to:

a. will be refreshed at the beginning of each billing period;

b. may not be carried over from one billing period to the next unless the terms and conditions relating to your Base Plan or the relevant Extra provide otherwise;

c. may only be used in accordance with the terms and conditions of your Base Plan or the relevant Extra and may not be credited towards other charges including international calls, 0900 calls and special SMS code numbers;

d. may not be transferred between Mobile Plans or to a prepaid plan;

e. may not be redeemed for cash, phone equipment, Disconnection Fees, Transfer Fees or other Charges;

f. cannot be transferred or assigned;

g. expires on termination of this agreement and any unused part of your Allowance, such as voice minutes, will be forfeited on disconnection and you will not receive any refunds; and

h. is subject to any other terms and conditions of your Base Plan and the relevant Extra.

5. If you use up your Allowance, or if you use Services that are not included in your Allowance, overage charges or other Charges will apply to your use of those Services except where those Services are provided by us free of Charge. You can find these Charges on the Spark Website.

6. If you subscribe to any Extra, you may have to pay the full Charge for your current billing period if you subscribe to that Extra after your current billing period has commenced. Charges for Extras will recur and be incurred every billing period unless you notify us that you want to unsubscribe in accordance with clause 11.5.

10. Withholding, suspending, disconnecting or restricting services

1. We may temporarily withhold, suspend or restrict (for example by placing a toll bar on your Mobile Device) your use of any or all of the Services if:

a. you or anyone who uses your Mobile Device or SIM does not comply with the terms and conditions of this agreement or any other agreement with us, such as any terms and conditions relating to Mobile Plans or Additional Services;

b. you do not pay your bill by the due date specified on the bill;

c. you have not met our standard credit check requirements;

d. you go over a credit limit that we have set for you;

e. you or anyone who uses your Mobile Device or SIM damages our Network or puts our Network at risk;

f. you harass, abuse or threaten our staff;

g. you notify us that your Mobile Device or SIM has been lost or stolen; or

h. you have made multiple complaints with 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 will always do our best to contact you before we withhold, suspend or restrict your use of any or all of the Services pursuant to clause 10.1.

3. Where you have not met a responsibility you have to us or to any Spark company, and as a result we have withheld, suspended or restricted any or all of your Services pursuant to clause 10.1, you will remain liable for all monthly or other periodic Charges during this period.

4. Where we suspend or terminate a Service as a result of you not meeting a responsibility you have to us, we may require you to pay a reconnection charge before you can use the Service again. The reconnection charge reflects an administrative cost to us and is set out on Spark Website (http://www.spark.co.nz/help/billing/manage/spark-collections/). Your account will also need to be paid in full or you will have to negotiate a payment with us. The reconnection will be subject to our standard credit approval.

5. If you continue not to meet a responsibility you have to us, such as paying your bill, we will permanently disconnect your Services. If we are going to permanently disconnect your Services we will give you at least 5 working days’ notice.

6. Where we permanently disconnect your Services you will remain liable for all Charges incurred up to the date of a withholding, suspension or restriction of your Services. Where such disconnection is before the end of your Minimum Term a Disconnection Fee will also apply (see Schedule of Disconnection Fees and Transfer Charges). Your final bill will also set out and you will remain liable to pay, all outstanding Instalment Payment/s for your Mobile Device.

11. Giving up or ending services

1. You may end this agreement at any time after the Minimum Term, or at any time if you do not have a Minimum Term, by notifying Spark Customer Services.  The agreement will end and Charges will stop 30 calendar days after we receive your notification unless you are on a One Bill plan, in which case Charges will stop immediately.

2. You may terminate this agreement before the Minimum Term has ended if you pay us:

a. all Charges that are due; plus

b. any applicable Disconnection Fee as set out in the Schedule of Disconnection Fees and Transfer Charges for the Network applicable at the time you entered this agreement, published on the Spark Website.

3. We may cancel 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 10.1 that have not been rectified within 14 days;

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;

c. you seek to assign or transfer this agreement in breach of clause 18.1; or

d. 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 suggests that you are unable to pay the Charges.

4. If this agreement ends for one of the reasons set out in this clause 11:

a. any names, numbers and other information stored on your SIM may be lost; and

b. unless we agree otherwise (for example, if you have transferred to a Spark prepaid call plan covered by another agreement with us) or unless a mobile phone number has been Ported prior to giving up the Services, any mobile phone numbers allocated to you to use under this agreement will no longer be available to you;

c. You may temporarily or permanently give up any Extra or Additional Service we provide for you by calling Spark Customer Services. Some Extras and Additional Services may have a minimum period which you must subscribe for or may require you to provide us with at least one month's notice of your intention to give them up.

5. We may decide to stop providing all or any part of our Services to you. For example, where it is no longer commercially viable for us to continue providing the Services or where we have upgraded to newer technology. If we do this, we will tell you at least one month before we stop providing the Service. We may do this by sending you an SMS, emailing or writing to you or calling you. The agreement you have with us will remain in place.

6. Ending this agreement does not affect any rights and responsibilities which are intended to continue or come into force afterwards, including any obligation you may have to pay any outstanding Charges.

7. If this agreement ends before the end of its Minimum Term in circumstances in which a Disconnection Fee is not payable (including where we discontinue service) then to the extent legally permissible, we reserve the right to recover from you a portion of the Mobile Device subsidy we gave you (that portion reflecting the number of months of the Minimum Term that are remaining at termination). For the purposes of this clause 11.9, the Mobile Device subsidy shall be the difference between our mobile only price for that Mobile Device at the time you purchased it and the price you actually paid for that Mobile Device when you signed up to this Agreement.

12. Compensation and liability

1. Subject only to clause 12.2 below, nothing in these terms affects your rights under the Consumer Guarantees Act 1993 and the Fair Trading Act 1986. 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 12.2 and 13.1, 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 12.7 above are ever liable to you for any reason, the maximum combined amount we and all the other parties listed in clause 12.7 (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,

Please notify us of your claim as soon as possible after you 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.

13. 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 13.1. 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 13.1.

14. 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 electronically need not include an unsubscribe facility.

4. We, and other Spark Companies may:

a. 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

b. 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.

15. Changing these terms, Services and Charges

Changes to this agreement

1. 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.

2. We will give you at least one month's notice of any changes to these terms. If you do not agree to these changes you may exercise your right to terminate this agreement. We will notify you of these changes by emailing or writing (for example by bill message) to you or SMS text messaging you or an online message and publish the changes on our website. You will not be required to pay a Disconnection Fee if you are terminating this agreement before the end of the Minimum Term as a result of any negative change we have made to these terms.

Changes to Charges

3. We may also change our Charges from time to time. We will notify you of any changes by emailing or writing (for example by bill message) to you or SMS text messaging you or an online message and publish the changes on our website.

4. Where we increase any Charges for any of the Services (including introducing Charges for Services that are currently free), we will give you one month's notice of these changes. If you are on a Minimum Term contract we will not increase the monthly plan charge or any Disconnection Fee during the term of your Minimum Term contract, without either your consent or giving you the option to terminate this agreement without incurring Disconnection Fees. Notwithstanding the aforementioned we may change the monthly plan charge if the change arises from, relates to or is the result of a regulated charge outside our control, for example where the charge is a tax or levy imposed by the law or there is a charge for a regulated input required to provide you service, and the terms of your minimum term contract will remain in effect. The preceding sentence does not apply to you if you signed up to a minimum term contract between 17 March 2015 and 14 July 2015 and you are still within that minimum term period.

5. Where we decrease Charges for any of our 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.

6. We may change you to a new plan if we reasonably consider that you will be better off. We will give you one month’s notice of any change in plan that will result in increase in Charges and in accordance with clause 15.4. Otherwise, we will notify you as soon as possible after the change has been made. We do this by emailing or writing (for example by bill message) to you or SMS text messaging you or an online message and publish changes on Spark Website.

Changes to Services that benefit you or have a neutral impact on you

7. 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. Examples of changes that will benefit you include a reduction in Charges or inclusion of additional benefits in your Services. Examples of changes that will have a neutral impact on you include changing the name of a Service we provide you.

Other changes to Services that have an impact on you

8. 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 emailing or writing to you (such as bill message or direct mail) and by publishing the change on our website. You will not be required to pay a Disconnection Fee if you are terminating this agreement before the end of the Minimum Term as a result of a material reduction in the Services offering.

16. Sending notices

1. We may send you notices by sending you an SMS, by emailing or writing to you, by calling you or by publishing the notices on the Spark Website.

17. Meeting our responsibilities through agents and service providers

1. In order to enable us to provide certain Services to you, 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 but we remain responsible to you.

18. Transferring our responsibilities

1. We may transfer to someone else all or any part of our side of the agreement you have with us and you consent to that. Before we do this and provided there are no confidentiality obligations, we will tell you at least one month in advance.

2. This agreement is personal to you and you may not transfer this agreement or any benefit or obligation of it to any other person. If you are a business or company and your effective control or management is changed in any way, this will be treated by us as a transfer of this agreement and we will be entitled to end it.

19. More than one customer

1. Every person named as the customer in your application to use the Services must meet all of the customer's responsibilities under this agreement including paying all Charges payable by you under clause 8.

20. Severability

1. 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.

21. Waiver

1. 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.

22. Governing law

1. 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.

23. Definitions

This agreement contains various words and expressions that have defined meanings set out below:

•"Additional Services" means optional services offered by us in connection with the Spark Postpaid Services (such as Extras, data, SMS, Roaming, Cellular Secretary, Video Calling, and Your Spark on your Mobile Device) which may incur a Charge whether they are supplied in conjunction with a Base Plan or outside a Base Plan. 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

•"Allowance" means the amount and type of Services which are provided to you on a monthly or other periodic basis as part of your Base Plan and any Extras you subscribe to, for example certain amounts of voice minutes, data, SMS messages and/or other Additional Services

•"Base Plan" means your chosen Spark postpaid plan which sets out things such as:

  • the Allowance provided to you under that Base Plan and the monthly or other periodic Charge for that Allowance;
  • the Charges for using the Services once your Allowance is used up; and
  • the Charges for using Services that are not included in your Allowance

•"Charges" means charges for your access to and use of the Services. Charges may include, without limitation, call and usage charges, fixed periodic charges for Base Plans and Extras, overage charges, all reasonable administrative charges and any costs incurred in collecting outstanding payments from you

•"Content" means information, images and sounds, communications, software or any other material made available through the Services and includes wireless data and internet content

•“Disconnection Fees” means fees payable by you when this agreement is terminated during Minimum Term, and set out in the Schedule of Disconnection Fees and Transfer Charges. These charges are a genuine pre-estimate of the losses we will suffer as a result of this agreement being terminated before the end of the Minimum Term.

•"Extra" means a plan which provides you with an Allowance of a certain Additional Service or certain Additional Services such as SMS messages or data, for a fixed or other periodic payment

•"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

•"Minimum Term" means your minimum fixed period commitment to receive the Services as set out in your application to use the Services

•"Mobile Device" means a mobile phone or other telecommunications device (which incorporates a SIM) which operates on our Mobile Network and is used by you to access the Services

•"Mobile Plans" means your Base Plan and any Extras and other plans you subscribe to from time to time and "Mobile Plan" means any one of those plans

•"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

•"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 Device in countries other than New Zealand

•“Schedule of Disconnection Fees and Transfer Charges” means a schedule, applicable at the time you entered into this agreement and published on the Spark Website, that sets out Disconnection Fees payable by you when this agreement is terminated during Minimum Term and Transfer Charges payable by you when you move from a higher tiered postpaid Base Plan to a lower tiered postpaid Base Plan before the end of the Minimum Term.

•"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 subscriber identity module that we may have provided to you which enables you, when used with a Mobile Device, to access the Services on our Mobile Network

•"SMS" means a short message service, which is a form of text messaging on mobile phones

•"Spark Company" means Spark New Zealand 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 123 from your landline, or on *123 from your Mobile Device, or by using such other contact details which are updated by us on the Spark Website

•"Spark Postpaid Services" or “Postpaid” means Services provided by us where you pay the Charges on a monthly or other periodic basis

•"Spark Website" means our website at www.spark.co.nz or such other website that we notify you of from time to time.

•“Transfer Charge” means the Charge payable by you when you move from a higher tiered postpaid Base Plan to a lower tiered postpaid Base Plan before the end of the Minimum Term. These charges are a genuine pre-estimate of the losses we will suffer as a result of your decision to transfer to a lower tiered postpaid Base Plan during Minimum Term. You can find Transfer Charges in the Schedule of Disconnection Fees and Transfer Charges published on Spark Website.

•"we", "our" or "us" means Spark New Zealand Trading Limited.

•"you" or "your" means the customer who is party to this agreement.

  1. Our agreement
  2. Interpretation
  3. Terms of agreement
  4. Provision of Services
  5. Mobile Device numbers
  6. Wireless data and content
  7. Mobile Device and SIM
  8. Charges and billing
  9. Mobile plans and your allowance
  10. Withholding, suspending, disconnecting or restricting services
  11. Giving up or ending services
  12. Compensation and liability
  13. Force majeure
  14. Information about you
  15. Changing these terms, Charges and Services
  16. Sending notices
  17. Meeting our responsibilities through agents and service providers
  18. Transferring our responsibilities
  19. More than one customer
  20. Severability
  21. Waiver
  22. Governing law
  23. Definitions

1. Our agreement

1. If you have a Spark Postpaid connection that operates on our Network (for example, a pay monthly plan) then you are a Spark customer. You will need to read this Spark Mobile Postpaid agreement set out below, the Schedule of Disconnection Fees and Transfer Charges (if you are on a Minimum Term) and applicable Spark Mobile Service specific terms and conditions set out on Spark Website (together, “agreement”) which govern our contractual relationship with you for the provision of Spark Postpaid Services on our Network.

2. This agreement applies to all new Spark Postpaid customers who have signed up for the Services on and from 16 March 2015. If you signed up for our Services before 16 March 2015 the Mobile Postpaid Agreement dated 21 September 2012 applies to you.

3. We may amend this agreement from time to time in accordance with clause 15 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 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 Base Plan and any specific terms and conditions relating to the Services you use and any Extras you subscribe to. If there is any conflict or inconsistency between:

a. the terms and conditions set out in this agreement; and

b. the terms and conditions relating to your Base Plan or the specific terms and conditions relating to the Services you use and any Extras you subscribe to,
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 in the Definitions section 23 at the end of this agreement.

3. Term of agreement

1. This agreement starts once we accept your application to use the Services. Your application will be accepted once we have satisfied ourselves, acting reasonably and in good faith, of your eligibility for the Services, their availability to you and that you meet our standard credit requirements. We will let you know when your application is accepted.

2. This agreement will continue for at least the Minimum Term, unless it is terminated in any of the ways described in clause 11.

3. If you do not have a Minimum Term or if your Minimum Term has finished, we will continue to provide you with the Services until this agreement is terminated in any of the ways described in clause 11.

4. Provision of Services

1. Spark Postpaid Services allow you to make and receive most local, national and international calls (when within our Network coverage area) using a capable Mobile Device, 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 Device, 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 give you notice and 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. comply with the law and all the relevant codes and regulations and not use your Mobile Device or the Services in a way which we consider, acting reasonably and in good faith, to be abusive or offensive or for an illegal or fraudulent purpose;

c. 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;

d. 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;

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

f. not use your Mobile Device 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 Devices 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. 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 Device;

j. 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. 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 Device 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 Device 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 to any other person.

7. You agree to make sure everyone who uses your Mobile Device 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 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 Device or SIM, we will allocate a mobile phone number to you for use with your Mobile Device 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 Device or SIM. Where we are required to change your allocated mobile phone number we will give you notice of this change.

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

a. you will need to contact that other Mobile Service Provider;

b. you will be responsible for taking all necessary steps to Port your mobile phone number, other than our obligations under the LMNP Terms; and

c. you will be responsible for all costs associated with Porting your 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 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 for our decision.

3. We are not responsible for:

a. ensuring that any Content you access or make available through use of 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 your Mobile Device, or transmitted over our Network;

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

f. fixing any faults in your Mobile Device or SIM that occur 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 Device. You are responsible for ensuring that your Mobile Device 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 Device 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 Device 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 Device 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 Device.

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 will have a new PUK1 Code, if you wish to continue using the Services.

4. You must inform us immediately if your Mobile Device 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 Device or the SIM up to the time you inform us that your Mobile Device or SIM is lost or stolen and we activate a block on your Mobile Device, whether the Charges have been incurred by you or someone else. If your Mobile Device is lost, stolen, damaged or destroyed, you will need to purchase a new Mobile Device and/or SIM if you wish to continue using the Services.

5. If equipment, including your Mobile Device and SIM, supplied to you by someone other than us 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 is damaged as a result of 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. Any responsibilities we may have for a Mobile Device or other equipment that you buy directly from us will be covered by a separate warranty or sales agreement for that Mobile Device or other equipment.

8. Charges and billing

Mobile Devices

1. You must pay the purchase price of any Mobile Device and/or other equipment you buy from us, which is the price agreed at the time of purchase. You cannot terminate this agreement by returning any Mobile Device and other equipment to us. From the time we deliver the Mobile Device and other equipment to you, you will own the Mobile Device and other equipment and they will be at your risk.

2. Where the payment method for the purchase price of your Mobile Device or other equipment is on account (in other words, on your bill) you agree that:

a. the full purchase price of the Mobile Device and/or other equipment will be debited to your Spark account when you accept this agreement,

b. you are responsible for repaying the amount in full by the due date stated on your bill.

3. In order to make it easier for you to own a Mobile Device and other equipment we offer a deferred payment method for the purchase price of your Mobile Device and other equipment by instalments on your account (“Installment Payment/s”). Where you take up this offer you agree that:

c. you will pay each instalment amount set by us by the due date stated on your bill, until the balance owing has been repaid in full.

d. the Mobile Device will remain on an eligible Spark Mobile plan at least until you have repaid all of the purchase price of the Mobile Device and/or other equipment to us.

e. you will pay the late payment fee set out on Spark Website (http://www.spark.co.nz/help/billing/pay-my-bill/late-payment-fee/) for each month that we do not receive your minimum Instalment Payment on or before the due date stated on your bill, which reflects the actual costs to us in recovering the late payment.

f. where you have not met your payment obligations to us we may, acting reasonably and in good faith, set-off payments we receive from you against any other amounts owed by you to Spark that have not been paid in full by the due date. This may cause your Instalment Payments to remain unpaid and, as a result, you may incur late payment fees as set out in clause 8(c) above.

g. if all or any part of an Instalment Payment is not paid by its due date or you transfer your services to an ineligible Spark plan, we may suspend, withdraw or disconnect your Services; and

h. if you are disconnected from the Network in accordance with the terms of this Agreement or decide to transfer to an ineligible plan, before all Instalment Payments have been paid in full, Spark may aggregate on your Spark account, and you must pay by the due date, all amounts owed to us under this Agreement including, without limitation, the aggregated total of all unpaid Instalment Payments.

Services

4. There is a monthly or other agreed billing period for your use of the Services, which shall commence from the date we accept your application to use the Services. Unless we otherwise agree, we will make your bills available to you for each billing period free of charge by electronic mail only. If you joined Spark on or before 30 July 2016 and chose to receive your bill by post for $1.50 per bill, we will continue to provide you with that service. The bill will specify the total amount of the Charges you owe us and the date by which such amount must be paid to us. Charges for Mobile Plans and different Services may be billed in advance or in arrears, as set out on the Spark Website.

5. The Charges for calls, texts and/or data made from your Mobile Device are set out in your Base Plan. Generally, there is a minimum one minute charge for each call and after the first minute calls are charged by the minute, unless stated in your specific Base Plan pricing. If you use up your Allowance during a call, text and/or data session or you do not have an Allowance, you will be charged for the rest of the call, text and/or data usage at the applicable rate set out in your Base Plan. If you call or text 0900 numbers or special numbers such as 018, short codes or those provided through calling cards, you will be charged at the rate published by the service provider of that number in addition to the usual Charges for calls and texts as set out in your Base Plan. Please see your Base Plan for more information about Charges for calls, texts and/or data.

6. The Charges for Mobile Plans and all Services are set out on the Spark Website and are also available by contacting Spark Customer Services and through the My Spark application on your Mobile Device.

7. We may change our Charges from time to time. Where we do this we will notify you of any changes in accordance with clause 15 and you will have the rights outlined in that clause.

8. As we have no control over your Mobile Device and SIM you are liable for all Charges under this agreement whether incurred by you or someone else using your Mobile Device or SIM (with or without your knowledge). This includes, where your Mobile Device or SIM has been lost or stolen, all Charges incurred prior to us activating a block on your Mobile Device or SIM. If you no longer want to use the Services you must deactivate your SIM. Removing your SIM from your Mobile Device will not deactivate the SIM. If you do not know how to deactivate your SIM call Spark Customer Services.

9. The Charges that apply to Roaming are in addition to any other Charges which apply to your Mobile Plans. The Charges for Roaming may include Charges for voice calls and other messages sent and received or for accessing Content. The Charges for Roaming will be determined by Spark and/or the overseas network operator. These Charges will vary between overseas networks and may change from time to time. To help you manage the Charges when you are Roaming you can check out our helpful Roaming tips on our Website. You can also find information on Roaming Charges by calling Spark Customer Services or by visiting the Spark Website.

10. If we, acting reasonably and in good faith, consider you are a credit risk, we may impose credit limits for your use of the Services and we will notify you before we impose such limits. You must observe any credit limit we set from time to time.

11. Please let us know as soon as possible if you think that there is a mistake in your bill, either before or after you have paid your bill. We will investigate the matter as soon as possible. While you wait to hear from us, you need pay only the undisputed part of the bill by the due date for payment. If we agree there is a mistake, we will adjust your next bill or, if appropriate, provide a refund. If we find, acting reasonably and in good faith, there is no mistake we will provide you with the reason for our decision and, if the due date for payment has already passed, you must pay the amount outstanding within 7 days.

12. If you do not pay a bill by the due date for payment stated on that bill you may be charged a late payment fee, which reflects the cost to us of recovering money owed to us. We may also charge you for any reasonable administration or collection costs (including legal costs on a solicitor and client basis) which we incur if you don't pay your bill on time and in full.

13. Where you have not met your payment obligations to us, we may, acting reasonably and in good faith, off-set any credit balance on any of your Spark accounts, or any money we would otherwise be required to pay you, against any amounts you owe us under this agreement (including any Charges that have not been paid by the due date). Subject to these rights, we will refund any monetary credit balance on your account at the end of this agreement.

9. Mobile plans and your allowance

1. You may change between Mobile Plans only in accordance with the terms and conditions relating to the relevant Mobile Plan. You may have to give us a certain period of notice before you can change and Transfer Charges and/or Disconnection Fees may apply. It is your responsibility to check what, if any, special terms and conditions exist for different Mobile Plans and if there are any fees for changing between them.

2. Where you have a Minimum Term and you choose to change from a higher tiered Postpaid Base Plan to a lower tiered Postpaid Base Plan before the end of that Minimum Term a Transfer Charge applies. To find out the tier of your Base Plan and the applicable Transfer Charge please refer to the relevant Schedule of Disconnection Fees and Transfer Charges published on the Spark Website or call Spark Customer Services from your Mobile Device.

3. If you choose to change from a Postpaid Base Plan to a Spark prepaid plan you will need to terminate this agreement in accordance with clause 11 and sign up to a new agreement relating to the prepaid plan. If you have a Minimum Term and you change plans before the end of the Minimum Term Disconnection Fees will apply.

4. The Allowance under your Base Plan and each Extra you subscribe to:

a. will be refreshed at the beginning of each billing period;

b. may not be carried over from one billing period to the next unless the terms and conditions relating to your Base Plan or the relevant Extra provide otherwise;

c. may only be used in accordance with the terms and conditions of your Base Plan or the relevant Extra and may not be credited towards other charges including international calls, 0900 calls and special SMS code numbers;

d. may not be transferred between Mobile Plans or to a prepaid plan;

e. may not be redeemed for cash, phone equipment, Disconnection Fees, Transfer Fees or other Charges;

f. cannot be transferred or assigned;

g. expires on termination of this agreement and any unused part of your Allowance, such as voice minutes, will be forfeited on disconnection and you will not receive any refunds; and

h. is subject to any other terms and conditions of your Base Plan and the relevant Extra.

5. If you use up your Allowance, or if you use Services that are not included in your Allowance, overage charges or other Charges will apply to your use of those Services except where those Services are provided by us free of Charge. You can find these Charges on the Spark Website.

6. If you subscribe to any Extra, you may have to pay the full Charge for your current billing period if you subscribe to that Extra after your current billing period has commenced. Charges for Extras will recur and be incurred every billing period unless you notify us that you want to unsubscribe in accordance with clause 11.5.

10. Withholding, suspending, disconnecting or restricting services

1. We may temporarily withhold, suspend or restrict (for example by placing a toll bar on your Mobile Device) your use of any or all of the Services if:

a. you or anyone who uses your Mobile Device or SIM does not comply with the terms and conditions of this agreement or any other agreement with us, such as any terms and conditions relating to Mobile Plans or Additional Services;

b. you do not pay your bill by the due date specified on the bill;

c. you have not met our standard credit check requirements;

d. you go over a credit limit that we have set for you;

e. you or anyone who uses your Mobile Device or SIM damages our Network or puts our Network at risk;

f. you harass, abuse or threaten our staff;

g. you notify us that your Mobile Device or SIM has been lost or stolen; or

h. you have made multiple complaints with 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 will always do our best to contact you before we withhold, suspend or restrict your use of any or all of the Services pursuant to clause 10.1.

3. Where you have not met a responsibility you have to us or to any Spark company, and as a result we have withheld, suspended or restricted any or all of your Services pursuant to clause 10.1, you will remain liable for all monthly or other periodic Charges during this period.

4. Where we suspend or terminate a Service as a result of you not meeting a responsibility you have to us, we may require you to pay a reconnection charge before you can use the Service again. The reconnection charge reflects an administrative cost to us and is set out on Spark Website (http://www.spark.co.nz/help/billing/manage/spark-collections/). Your account will also need to be paid in full or you will have to negotiate a payment with us. The reconnection will be subject to our standard credit approval.

5. If you continue not to meet a responsibility you have to us, such as paying your bill, we will permanently disconnect your Services. If we are going to permanently disconnect your Services we will give you at least 5 working days’ notice.

6. Where we permanently disconnect your Services you will remain liable for all Charges incurred up to the date of a withholding, suspension or restriction of your Services. Where such disconnection is before the end of your Minimum Term a Disconnection Fee will also apply (see Schedule of Disconnection Fees and Transfer Charges). Your final bill will also set out and you will remain liable to pay, all outstanding Instalment Payment/s for your Mobile Device.

11. Giving up or ending services

1. You may end this agreement at any time after the Minimum Term, or at any time if you do not have a Minimum Term, by notifying Spark Customer Services.  The agreement will end and Charges will stop 30 calendar days after we receive your notification unless you are on a One Bill plan, in which case Charges will stop immediately.

2. You may terminate this agreement before the Minimum Term has ended if you pay us:

a. all Charges that are due; plus

b. any applicable Disconnection Fee as set out in the Schedule of Disconnection Fees and Transfer Charges for the Network applicable at the time you entered this agreement, published on the Spark Website.

3. We may cancel 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 10.1 that have not been rectified within 14 days;

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;

c. you seek to assign or transfer this agreement in breach of clause 18.1; or

d. 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 suggests that you are unable to pay the Charges.

4. If this agreement ends for one of the reasons set out in this clause 11:

a. any names, numbers and other information stored on your SIM may be lost; and

b. unless we agree otherwise (for example, if you have transferred to a Spark prepaid call plan covered by another agreement with us) or unless a mobile phone number has been Ported prior to giving up the Services, any mobile phone numbers allocated to you to use under this agreement will no longer be available to you;

c. You may temporarily or permanently give up any Extra or Additional Service we provide for you by calling Spark Customer Services. Some Extras and Additional Services may have a minimum period which you must subscribe for or may require you to provide us with at least one month's notice of your intention to give them up.

5. We may decide to stop providing all or any part of our Services to you. For example, where it is no longer commercially viable for us to continue providing the Services or where we have upgraded to newer technology. If we do this, we will tell you at least one month before we stop providing the Service. We may do this by sending you an SMS, emailing or writing to you or calling you. The agreement you have with us will remain in place.

6. Ending this agreement does not affect any rights and responsibilities which are intended to continue or come into force afterwards, including any obligation you may have to pay any outstanding Charges.

7. If this agreement ends before the end of its Minimum Term in circumstances in which a Disconnection Fee is not payable (including where we discontinue service) then to the extent legally permissible, we reserve the right to recover from you a portion of the Mobile Device subsidy we gave you (that portion reflecting the number of months of the Minimum Term that are remaining at termination). For the purposes of this clause 11.9, the Mobile Device subsidy shall be the difference between our mobile only price for that Mobile Device at the time you purchased it and the price you actually paid for that Mobile Device when you signed up to this Agreement.

12. Compensation and liability

1. Subject only to clause 12.2 below, nothing in these terms affects your rights under the Consumer Guarantees Act 1993 and the Fair Trading Act 1986. 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 12.2 and 13.1, 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 12.7 above are ever liable to you for any reason, the maximum combined amount we and all the other parties listed in clause 12.7 (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,

Please notify us of your claim as soon as possible after you 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.

13. 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 13.1. 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 13.1.

14. 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 electronically need not include an unsubscribe facility.

4. We, and other Spark Companies may:

a. 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

b. 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.

15. Changing these terms, Services and Charges

Changes to this agreement

1. 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.

2. We will give you at least one month's notice of any changes to these terms. If you do not agree to these changes you may exercise your right to terminate this agreement. We will notify you of these changes by emailing or writing (for example by bill message) to you or SMS text messaging you or an online message and publish the changes on our website. You will not be required to pay a Disconnection Fee if you are terminating this agreement before the end of the Minimum Term as a result of any negative change we have made to these terms.

Changes to Charges

3. We may also change our Charges from time to time. We will notify you of any changes by emailing or writing (for example by bill message) to you or SMS text messaging you or an online message and publish the changes on our website.

4. Where we increase any Charges for any of the Services (including introducing Charges for Services that are currently free), we will give you one month's notice of these changes. If you are on a Minimum Term contract we will not increase the monthly plan charge or any Disconnection Fee during the term of your Minimum Term contract, without either your consent or giving you the option to terminate this agreement without incurring Disconnection Fees. Notwithstanding the aforementioned we may change the monthly plan charge if the change arises from, relates to or is the result of a regulated charge outside our control, for example where the charge is a tax or levy imposed by the law or there is a charge for a regulated input required to provide you service, and the terms of your minimum term contract will remain in effect. The preceding sentence does not apply to you if you signed up to a minimum term contract between 17 March 2015 and 14 July 2015 and you are still within that minimum term period.

5. Where we decrease Charges for any of our 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.

6. We may change you to a new plan if we reasonably consider that you will be better off. We will give you one month’s notice of any change in plan that will result in increase in Charges and in accordance with clause 15.4. Otherwise, we will notify you as soon as possible after the change has been made. We do this by emailing or writing (for example by bill message) to you or SMS text messaging you or an online message and publish changes on Spark Website.

Changes to Services that benefit you or have a neutral impact on you

7. 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. Examples of changes that will benefit you include a reduction in Charges or inclusion of additional benefits in your Services. Examples of changes that will have a neutral impact on you include changing the name of a Service we provide you.

Other changes to Services that have an impact on you

8. 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 emailing or writing to you (such as bill message or direct mail) and by publishing the change on our website. You will not be required to pay a Disconnection Fee if you are terminating this agreement before the end of the Minimum Term as a result of a material reduction in the Services offering.

16. Sending notices

1. We may send you notices by sending you an SMS, by emailing or writing to you, by calling you or by publishing the notices on the Spark Website.

17. Meeting our responsibilities through agents and service providers

1. In order to enable us to provide certain Services to you, 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 but we remain responsible to you.

18. Transferring our responsibilities

1. We may transfer to someone else all or any part of our side of the agreement you have with us and you consent to that. Before we do this and provided there are no confidentiality obligations, we will tell you at least one month in advance.

2. This agreement is personal to you and you may not transfer this agreement or any benefit or obligation of it to any other person. If you are a business or company and your effective control or management is changed in any way, this will be treated by us as a transfer of this agreement and we will be entitled to end it.

19. More than one customer

1. Every person named as the customer in your application to use the Services must meet all of the customer's responsibilities under this agreement including paying all Charges payable by you under clause 8.

20. Severability

1. 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.

21. Waiver

1. 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.

22. Governing law

1. 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.

23. Definitions

This agreement contains various words and expressions that have defined meanings set out below:

•"Additional Services" means optional services offered by us in connection with the Spark Postpaid Services (such as Extras, data, SMS, Roaming, Cellular Secretary, Video Calling, and Your Spark on your Mobile Device) which may incur a Charge whether they are supplied in conjunction with a Base Plan or outside a Base Plan. 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

•"Allowance" means the amount and type of Services which are provided to you on a monthly or other periodic basis as part of your Base Plan and any Extras you subscribe to, for example certain amounts of voice minutes, data, SMS messages and/or other Additional Services

•"Base Plan" means your chosen Spark postpaid plan which sets out things such as:

  • the Allowance provided to you under that Base Plan and the monthly or other periodic Charge for that Allowance;
  • the Charges for using the Services once your Allowance is used up; and
  • the Charges for using Services that are not included in your Allowance

•"Charges" means charges for your access to and use of the Services. Charges may include, without limitation, call and usage charges, fixed periodic charges for Base Plans and Extras, overage charges, all reasonable administrative charges and any costs incurred in collecting outstanding payments from you

•"Content" means information, images and sounds, communications, software or any other material made available through the Services and includes wireless data and internet content

•“Disconnection Fees” means fees payable by you when this agreement is terminated during Minimum Term, and set out in the Schedule of Disconnection Fees and Transfer Charges. These charges are a genuine pre-estimate of the losses we will suffer as a result of this agreement being terminated before the end of the Minimum Term.

•"Extra" means a plan which provides you with an Allowance of a certain Additional Service or certain Additional Services such as SMS messages or data, for a fixed or other periodic payment

•"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

•"Minimum Term" means your minimum fixed period commitment to receive the Services as set out in your application to use the Services

•"Mobile Device" means a mobile phone or other telecommunications device (which incorporates a SIM) which operates on our Mobile Network and is used by you to access the Services

•"Mobile Plans" means your Base Plan and any Extras and other plans you subscribe to from time to time and "Mobile Plan" means any one of those plans

•"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

•"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 Device in countries other than New Zealand

•“Schedule of Disconnection Fees and Transfer Charges” means a schedule, applicable at the time you entered into this agreement and published on the Spark Website, that sets out Disconnection Fees payable by you when this agreement is terminated during Minimum Term and Transfer Charges payable by you when you move from a higher tiered postpaid Base Plan to a lower tiered postpaid Base Plan before the end of the Minimum Term.

•"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 subscriber identity module that we may have provided to you which enables you, when used with a Mobile Device, to access the Services on our Mobile Network

•"SMS" means a short message service, which is a form of text messaging on mobile phones

•"Spark Company" means Spark New Zealand 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 123 from your landline, or on *123 from your Mobile Device, or by using such other contact details which are updated by us on the Spark Website

•"Spark Postpaid Services" or “Postpaid” means Services provided by us where you pay the Charges on a monthly or other periodic basis

•"Spark Website" means our website at www.spark.co.nz or such other website that we notify you of from time to time.

•“Transfer Charge” means the Charge payable by you when you move from a higher tiered postpaid Base Plan to a lower tiered postpaid Base Plan before the end of the Minimum Term. These charges are a genuine pre-estimate of the losses we will suffer as a result of your decision to transfer to a lower tiered postpaid Base Plan during Minimum Term. You can find Transfer Charges in the Schedule of Disconnection Fees and Transfer Charges published on Spark Website.

•"we", "our" or "us" means Spark New Zealand Trading Limited.

•"you" or "your" means the customer who is party to this agreement.

  1. Our agreement
  2. Interpretation
  3. Terms of agreement
  4. Provision of Services
  5. Mobile Device numbers
  6. Wireless data and content
  7. Mobile Device and SIM
  8. Charges and billing
  9. Mobile plans and your allowance
  10. Withholding, suspending, disconnecting or restricting services
  11. Giving up or ending services
  12. Compensation and liability
  13. Force majeure
  14. Information about you
  15. Changing these terms, Charges and Services
  16. Sending notices
  17. Meeting our responsibilities through agents and service providers
  18. Transferring our responsibilities
  19. More than one customer
  20. Severability
  21. Waiver
  22. Governing law
  23. Definitions

1. Our agreement

1. If you have a Spark Postpaid connection that operates on our Network (for example, a pay monthly plan) then you are a Spark customer. You will need to read this Spark Mobile Postpaid agreement set out below, the Schedule of Disconnection Fees and Transfer Charges (if you are on a Minimum Term) and applicable Spark Mobile Service specific terms and conditions set out on Spark Website (together, “agreement”) which govern our contractual relationship with you for the provision of Spark Postpaid Services on our Network.

2. This agreement applies to all new Spark Postpaid customers who have signed up for the Services on and from 16 March 2015. If you signed up for our Services before 16 March 2015 the Mobile Postpaid Agreement dated 21 September 2012 applies to you.

3. We may amend this agreement from time to time in accordance with clause 15 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 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 Base Plan and any specific terms and conditions relating to the Services you use and any Extras you subscribe to. If there is any conflict or inconsistency between:

a. the terms and conditions set out in this agreement; and

b. the terms and conditions relating to your Base Plan or the specific terms and conditions relating to the Services you use and any Extras you subscribe to,
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 in the Definitions section 23 at the end of this agreement.

3. Term of agreement

1. This agreement starts once we accept your application to use the Services. Your application will be accepted once we have satisfied ourselves, acting reasonably and in good faith, of your eligibility for the Services, their availability to you and that you meet our standard credit requirements. We will let you know when your application is accepted.

2. This agreement will continue for at least the Minimum Term, unless it is terminated in any of the ways described in clause 11.

3. If you do not have a Minimum Term or if your Minimum Term has finished, we will continue to provide you with the Services until this agreement is terminated in any of the ways described in clause 11.

4. Provision of Services

1. Spark Postpaid Services allow you to make and receive most local, national and international calls (when within our Network coverage area) using a capable Mobile Device, 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 Device, 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 give you notice and 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. comply with the law and all the relevant codes and regulations and not use your Mobile Device or the Services in a way which we consider, acting reasonably and in good faith, to be abusive or offensive or for an illegal or fraudulent purpose;

c. 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;

d. 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;

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

f. not use your Mobile Device 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 Devices 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. 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 Device;

j. 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. 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 Device 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 Device 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 to any other person.

7. You agree to make sure everyone who uses your Mobile Device 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 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 Device or SIM, we will allocate a mobile phone number to you for use with your Mobile Device 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 Device or SIM. Where we are required to change your allocated mobile phone number we will give you notice of this change.

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

a. you will need to contact that other Mobile Service Provider;

b. you will be responsible for taking all necessary steps to Port your mobile phone number, other than our obligations under the LMNP Terms; and

c. you will be responsible for all costs associated with Porting your 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 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 for our decision.

3. We are not responsible for:

a. ensuring that any Content you access or make available through use of 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 your Mobile Device, or transmitted over our Network;

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

f. fixing any faults in your Mobile Device or SIM that occur 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 Device. You are responsible for ensuring that your Mobile Device 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 Device 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 Device 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 Device 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 Device.

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 will have a new PUK1 Code, if you wish to continue using the Services.

4. You must inform us immediately if your Mobile Device 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 Device or the SIM up to the time you inform us that your Mobile Device or SIM is lost or stolen and we activate a block on your Mobile Device, whether the Charges have been incurred by you or someone else. If your Mobile Device is lost, stolen, damaged or destroyed, you will need to purchase a new Mobile Device and/or SIM if you wish to continue using the Services.

5. If equipment, including your Mobile Device and SIM, supplied to you by someone other than us 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 is damaged as a result of 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. Any responsibilities we may have for a Mobile Device or other equipment that you buy directly from us will be covered by a separate warranty or sales agreement for that Mobile Device or other equipment.

8. Charges and billing

Mobile Devices

1. You must pay the purchase price of any Mobile Device and/or other equipment you buy from us, which is the price agreed at the time of purchase. You cannot terminate this agreement by returning any Mobile Device and other equipment to us. From the time we deliver the Mobile Device and other equipment to you, you will own the Mobile Device and other equipment and they will be at your risk.

2. Where the payment method for the purchase price of your Mobile Device or other equipment is on account (in other words, on your bill) you agree that:

a. the full purchase price of the Mobile Device and/or other equipment will be debited to your Spark account when you accept this agreement,

b. you are responsible for repaying the amount in full by the due date stated on your bill.

3. In order to make it easier for you to own a Mobile Device and other equipment we offer a deferred payment method for the purchase price of your Mobile Device and other equipment by instalments on your account (“Installment Payment/s”). Where you take up this offer you agree that:

c. you will pay each instalment amount set by us by the due date stated on your bill, until the balance owing has been repaid in full.

d. the Mobile Device will remain on an eligible Spark Mobile plan at least until you have repaid all of the purchase price of the Mobile Device and/or other equipment to us.

e. you will pay the late payment fee set out on Spark Website (http://www.spark.co.nz/help/billing/pay-my-bill/late-payment-fee/) for each month that we do not receive your minimum Instalment Payment on or before the due date stated on your bill, which reflects the actual costs to us in recovering the late payment.

f. where you have not met your payment obligations to us we may, acting reasonably and in good faith, set-off payments we receive from you against any other amounts owed by you to Spark that have not been paid in full by the due date. This may cause your Instalment Payments to remain unpaid and, as a result, you may incur late payment fees as set out in clause 8(c) above.

g. if all or any part of an Instalment Payment is not paid by its due date or you transfer your services to an ineligible Spark plan, we may suspend, withdraw or disconnect your Services; and

h. if you are disconnected from the Network in accordance with the terms of this Agreement or decide to transfer to an ineligible plan, before all Instalment Payments have been paid in full, Spark may aggregate on your Spark account, and you must pay by the due date, all amounts owed to us under this Agreement including, without limitation, the aggregated total of all unpaid Instalment Payments.

Services

4. There is a monthly or other agreed billing period for your use of the Services, which shall commence from the date we accept your application to use the Services. Unless we otherwise agree, we will make your bills available to you for each billing period free of charge by electronic mail only. If you joined Spark on or before 30 July 2016 and chose to receive your bill by post for $1.50 per bill, we will continue to provide you with that service. The bill will specify the total amount of the Charges you owe us and the date by which such amount must be paid to us. Charges for Mobile Plans and different Services may be billed in advance or in arrears, as set out on the Spark Website.

5. The Charges for calls, texts and/or data made from your Mobile Device are set out in your Base Plan. Generally, there is a minimum one minute charge for each call and after the first minute calls are charged by the minute, unless stated in your specific Base Plan pricing. If you use up your Allowance during a call, text and/or data session or you do not have an Allowance, you will be charged for the rest of the call, text and/or data usage at the applicable rate set out in your Base Plan. If you call or text 0900 numbers or special numbers such as 018, short codes or those provided through calling cards, you will be charged at the rate published by the service provider of that number in addition to the usual Charges for calls and texts as set out in your Base Plan. Please see your Base Plan for more information about Charges for calls, texts and/or data.

6. The Charges for Mobile Plans and all Services are set out on the Spark Website and are also available by contacting Spark Customer Services and through the My Spark application on your Mobile Device.

7. We may change our Charges from time to time. Where we do this we will notify you of any changes in accordance with clause 15 and you will have the rights outlined in that clause.

8. As we have no control over your Mobile Device and SIM you are liable for all Charges under this agreement whether incurred by you or someone else using your Mobile Device or SIM (with or without your knowledge). This includes, where your Mobile Device or SIM has been lost or stolen, all Charges incurred prior to us activating a block on your Mobile Device or SIM. If you no longer want to use the Services you must deactivate your SIM. Removing your SIM from your Mobile Device will not deactivate the SIM. If you do not know how to deactivate your SIM call Spark Customer Services.

9. The Charges that apply to Roaming are in addition to any other Charges which apply to your Mobile Plans. The Charges for Roaming may include Charges for voice calls and other messages sent and received or for accessing Content. The Charges for Roaming will be determined by Spark and/or the overseas network operator. These Charges will vary between overseas networks and may change from time to time. To help you manage the Charges when you are Roaming you can check out our helpful Roaming tips on our Website. You can also find information on Roaming Charges by calling Spark Customer Services or by visiting the Spark Website.

10. If we, acting reasonably and in good faith, consider you are a credit risk, we may impose credit limits for your use of the Services and we will notify you before we impose such limits. You must observe any credit limit we set from time to time.

11. Please let us know as soon as possible if you think that there is a mistake in your bill, either before or after you have paid your bill. We will investigate the matter as soon as possible. While you wait to hear from us, you need pay only the undisputed part of the bill by the due date for payment. If we agree there is a mistake, we will adjust your next bill or, if appropriate, provide a refund. If we find, acting reasonably and in good faith, there is no mistake we will provide you with the reason for our decision and, if the due date for payment has already passed, you must pay the amount outstanding within 7 days.

12. If you do not pay a bill by the due date for payment stated on that bill you may be charged a late payment fee, which reflects the cost to us of recovering money owed to us. We may also charge you for any reasonable administration or collection costs (including legal costs on a solicitor and client basis) which we incur if you don't pay your bill on time and in full.

13. Where you have not met your payment obligations to us, we may, acting reasonably and in good faith, off-set any credit balance on any of your Spark accounts, or any money we would otherwise be required to pay you, against any amounts you owe us under this agreement (including any Charges that have not been paid by the due date). Subject to these rights, we will refund any monetary credit balance on your account at the end of this agreement.

9. Mobile plans and your allowance

1. You may change between Mobile Plans only in accordance with the terms and conditions relating to the relevant Mobile Plan. You may have to give us a certain period of notice before you can change and Transfer Charges and/or Disconnection Fees may apply. It is your responsibility to check what, if any, special terms and conditions exist for different Mobile Plans and if there are any fees for changing between them.

2. Where you have a Minimum Term and you choose to change from a higher tiered Postpaid Base Plan to a lower tiered Postpaid Base Plan before the end of that Minimum Term a Transfer Charge applies. To find out the tier of your Base Plan and the applicable Transfer Charge please refer to the relevant Schedule of Disconnection Fees and Transfer Charges published on the Spark Website or call Spark Customer Services from your Mobile Device.

3. If you choose to change from a Postpaid Base Plan to a Spark prepaid plan you will need to terminate this agreement in accordance with clause 11 and sign up to a new agreement relating to the prepaid plan. If you have a Minimum Term and you change plans before the end of the Minimum Term Disconnection Fees will apply.

4. The Allowance under your Base Plan and each Extra you subscribe to:

a. will be refreshed at the beginning of each billing period;

b. may not be carried over from one billing period to the next unless the terms and conditions relating to your Base Plan or the relevant Extra provide otherwise;

c. may only be used in accordance with the terms and conditions of your Base Plan or the relevant Extra and may not be credited towards other charges including international calls, 0900 calls and special SMS code numbers;

d. may not be transferred between Mobile Plans or to a prepaid plan;

e. may not be redeemed for cash, phone equipment, Disconnection Fees, Transfer Fees or other Charges;

f. cannot be transferred or assigned;

g. expires on termination of this agreement and any unused part of your Allowance, such as voice minutes, will be forfeited on disconnection and you will not receive any refunds; and

h. is subject to any other terms and conditions of your Base Plan and the relevant Extra.

5. If you use up your Allowance, or if you use Services that are not included in your Allowance, overage charges or other Charges will apply to your use of those Services except where those Services are provided by us free of Charge. You can find these Charges on the Spark Website.

6. If you subscribe to any Extra, you may have to pay the full Charge for your current billing period if you subscribe to that Extra after your current billing period has commenced. Charges for Extras will recur and be incurred every billing period unless you notify us that you want to unsubscribe in accordance with clause 11.5.

10. Withholding, suspending, disconnecting or restricting services

1. We may temporarily withhold, suspend or restrict (for example by placing a toll bar on your Mobile Device) your use of any or all of the Services if:

a. you or anyone who uses your Mobile Device or SIM does not comply with the terms and conditions of this agreement or any other agreement with us, such as any terms and conditions relating to Mobile Plans or Additional Services;

b. you do not pay your bill by the due date specified on the bill;

c. you have not met our standard credit check requirements;

d. you go over a credit limit that we have set for you;

e. you or anyone who uses your Mobile Device or SIM damages our Network or puts our Network at risk;

f. you harass, abuse or threaten our staff;

g. you notify us that your Mobile Device or SIM has been lost or stolen; or

h. you have made multiple complaints with 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 will always do our best to contact you before we withhold, suspend or restrict your use of any or all of the Services pursuant to clause 10.1.

3. Where you have not met a responsibility you have to us or to any Spark company, and as a result we have withheld, suspended or restricted any or all of your Services pursuant to clause 10.1, you will remain liable for all monthly or other periodic Charges during this period.

4. Where we suspend or terminate a Service as a result of you not meeting a responsibility you have to us, we may require you to pay a reconnection charge before you can use the Service again. The reconnection charge reflects an administrative cost to us and is set out on Spark Website (http://www.spark.co.nz/help/billing/manage/spark-collections/). Your account will also need to be paid in full or you will have to negotiate a payment with us. The reconnection will be subject to our standard credit approval.

5. If you continue not to meet a responsibility you have to us, such as paying your bill, we will permanently disconnect your Services. If we are going to permanently disconnect your Services we will give you at least 5 working days’ notice.

6. Where we permanently disconnect your Services you will remain liable for all Charges incurred up to the date of a withholding, suspension or restriction of your Services. Where such disconnection is before the end of your Minimum Term a Disconnection Fee will also apply (see Schedule of Disconnection Fees and Transfer Charges). Your final bill will also set out and you will remain liable to pay, all outstanding Instalment Payment/s for your Mobile Device.

11. Giving up or ending services

1. You may end this agreement at any time after the Minimum Term, or at any time if you do not have a Minimum Term, by notifying Spark Customer Services.  The agreement will end and Charges will stop 30 calendar days after we receive your notification unless you are on a One Bill plan, in which case Charges will stop immediately.

2. You may terminate this agreement before the Minimum Term has ended if you pay us:

a. all Charges that are due; plus

b. any applicable Disconnection Fee as set out in the Schedule of Disconnection Fees and Transfer Charges for the Network applicable at the time you entered this agreement, published on the Spark Website.

3. We may cancel 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 10.1 that have not been rectified within 14 days;

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;

c. you seek to assign or transfer this agreement in breach of clause 18.1; or

d. 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 suggests that you are unable to pay the Charges.

4. If this agreement ends for one of the reasons set out in this clause 11:

a. any names, numbers and other information stored on your SIM may be lost; and

b. unless we agree otherwise (for example, if you have transferred to a Spark prepaid call plan covered by another agreement with us) or unless a mobile phone number has been Ported prior to giving up the Services, any mobile phone numbers allocated to you to use under this agreement will no longer be available to you;

c. You may temporarily or permanently give up any Extra or Additional Service we provide for you by calling Spark Customer Services. Some Extras and Additional Services may have a minimum period which you must subscribe for or may require you to provide us with at least one month's notice of your intention to give them up.

5. We may decide to stop providing all or any part of our Services to you. For example, where it is no longer commercially viable for us to continue providing the Services or where we have upgraded to newer technology. If we do this, we will tell you at least one month before we stop providing the Service. We may do this by sending you an SMS, emailing or writing to you or calling you. The agreement you have with us will remain in place.

6. Ending this agreement does not affect any rights and responsibilities which are intended to continue or come into force afterwards, including any obligation you may have to pay any outstanding Charges.

7. If this agreement ends before the end of its Minimum Term in circumstances in which a Disconnection Fee is not payable (including where we discontinue service) then to the extent legally permissible, we reserve the right to recover from you a portion of the Mobile Device subsidy we gave you (that portion reflecting the number of months of the Minimum Term that are remaining at termination). For the purposes of this clause 11.9, the Mobile Device subsidy shall be the difference between our mobile only price for that Mobile Device at the time you purchased it and the price you actually paid for that Mobile Device when you signed up to this Agreement.

12. Compensation and liability

1. Subject only to clause 12.2 below, nothing in these terms affects your rights under the Consumer Guarantees Act 1993 and the Fair Trading Act 1986. 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 12.2 and 13.1, 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 12.7 above are ever liable to you for any reason, the maximum combined amount we and all the other parties listed in clause 12.7 (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,

Please notify us of your claim as soon as possible after you 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.

13. 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 13.1. 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 13.1.

14. 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 electronically need not include an unsubscribe facility.

4. We, and other Spark Companies may:

a. 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

b. 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.

15. Changing these terms, Services and Charges

Changes to this agreement

1. 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.

2. We will give you at least one month's notice of any changes to these terms. If you do not agree to these changes you may exercise your right to terminate this agreement. We will notify you of these changes by emailing or writing (for example by bill message) to you or SMS text messaging you or an online message and publish the changes on our website. You will not be required to pay a Disconnection Fee if you are terminating this agreement before the end of the Minimum Term as a result of any negative change we have made to these terms.

Changes to Charges

3. We may also change our Charges from time to time. We will notify you of any changes by emailing or writing (for example by bill message) to you or SMS text messaging you or an online message and publish the changes on our website.

4. Where we increase any Charges for any of the Services (including introducing Charges for Services that are currently free), we will give you one month's notice of these changes. If you are on a Minimum Term contract we will not increase the monthly plan charge or any Disconnection Fee during the term of your Minimum Term contract, without either your consent or giving you the option to terminate this agreement without incurring Disconnection Fees. Notwithstanding the aforementioned we may change the monthly plan charge if the change arises from, relates to or is the result of a regulated charge outside our control, for example where the charge is a tax or levy imposed by the law or there is a charge for a regulated input required to provide you service, and the terms of your minimum term contract will remain in effect. The preceding sentence does not apply to you if you signed up to a minimum term contract between 17 March 2015 and 14 July 2015 and you are still within that minimum term period.

5. Where we decrease Charges for any of our 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.

6. We may change you to a new plan if we reasonably consider that you will be better off. We will give you one month’s notice of any change in plan that will result in increase in Charges and in accordance with clause 15.4. Otherwise, we will notify you as soon as possible after the change has been made. We do this by emailing or writing (for example by bill message) to you or SMS text messaging you or an online message and publish changes on Spark Website.

Changes to Services that benefit you or have a neutral impact on you

7. 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. Examples of changes that will benefit you include a reduction in Charges or inclusion of additional benefits in your Services. Examples of changes that will have a neutral impact on you include changing the name of a Service we provide you.

Other changes to Services that have an impact on you

8. 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 emailing or writing to you (such as bill message or direct mail) and by publishing the change on our website. You will not be required to pay a Disconnection Fee if you are terminating this agreement before the end of the Minimum Term as a result of a material reduction in the Services offering.

16. Sending notices

1. We may send you notices by sending you an SMS, by emailing or writing to you, by calling you or by publishing the notices on the Spark Website.

17. Meeting our responsibilities through agents and service providers

1. In order to enable us to provide certain Services to you, 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 but we remain responsible to you.

18. Transferring our responsibilities

1. We may transfer to someone else all or any part of our side of the agreement you have with us and you consent to that. Before we do this and provided there are no confidentiality obligations, we will tell you at least one month in advance.

2. This agreement is personal to you and you may not transfer this agreement or any benefit or obligation of it to any other person. If you are a business or company and your effective control or management is changed in any way, this will be treated by us as a transfer of this agreement and we will be entitled to end it.

19. More than one customer

1. Every person named as the customer in your application to use the Services must meet all of the customer's responsibilities under this agreement including paying all Charges payable by you under clause 8.

20. Severability

1. 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.

21. Waiver

1. 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.

22. Governing law

1. 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.

23. Definitions

This agreement contains various words and expressions that have defined meanings set out below:

•"Additional Services" means optional services offered by us in connection with the Spark Postpaid Services (such as Extras, data, SMS, Roaming, Cellular Secretary, Video Calling, and Your Spark on your Mobile Device) which may incur a Charge whether they are supplied in conjunction with a Base Plan or outside a Base Plan. 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

•"Allowance" means the amount and type of Services which are provided to you on a monthly or other periodic basis as part of your Base Plan and any Extras you subscribe to, for example certain amounts of voice minutes, data, SMS messages and/or other Additional Services

•"Base Plan" means your chosen Spark postpaid plan which sets out things such as:

  • the Allowance provided to you under that Base Plan and the monthly or other periodic Charge for that Allowance;
  • the Charges for using the Services once your Allowance is used up; and
  • the Charges for using Services that are not included in your Allowance

•"Charges" means charges for your access to and use of the Services. Charges may include, without limitation, call and usage charges, fixed periodic charges for Base Plans and Extras, overage charges, all reasonable administrative charges and any costs incurred in collecting outstanding payments from you

•"Content" means information, images and sounds, communications, software or any other material made available through the Services and includes wireless data and internet content

•“Disconnection Fees” means fees payable by you when this agreement is terminated during Minimum Term, and set out in the Schedule of Disconnection Fees and Transfer Charges. These charges are a genuine pre-estimate of the losses we will suffer as a result of this agreement being terminated before the end of the Minimum Term.

•"Extra" means a plan which provides you with an Allowance of a certain Additional Service or certain Additional Services such as SMS messages or data, for a fixed or other periodic payment

•"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

•"Minimum Term" means your minimum fixed period commitment to receive the Services as set out in your application to use the Services

•"Mobile Device" means a mobile phone or other telecommunications device (which incorporates a SIM) which operates on our Mobile Network and is used by you to access the Services

•"Mobile Plans" means your Base Plan and any Extras and other plans you subscribe to from time to time and "Mobile Plan" means any one of those plans

•"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

•"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 Device in countries other than New Zealand

•“Schedule of Disconnection Fees and Transfer Charges” means a schedule, applicable at the time you entered into this agreement and published on the Spark Website, that sets out Disconnection Fees payable by you when this agreement is terminated during Minimum Term and Transfer Charges payable by you when you move from a higher tiered postpaid Base Plan to a lower tiered postpaid Base Plan before the end of the Minimum Term.

•"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 subscriber identity module that we may have provided to you which enables you, when used with a Mobile Device, to access the Services on our Mobile Network

•"SMS" means a short message service, which is a form of text messaging on mobile phones

•"Spark Company" means Spark New Zealand 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 123 from your landline, or on *123 from your Mobile Device, or by using such other contact details which are updated by us on the Spark Website

•"Spark Postpaid Services" or “Postpaid” means Services provided by us where you pay the Charges on a monthly or other periodic basis

•"Spark Website" means our website at www.spark.co.nz or such other website that we notify you of from time to time.

•“Transfer Charge” means the Charge payable by you when you move from a higher tiered postpaid Base Plan to a lower tiered postpaid Base Plan before the end of the Minimum Term. These charges are a genuine pre-estimate of the losses we will suffer as a result of your decision to transfer to a lower tiered postpaid Base Plan during Minimum Term. You can find Transfer Charges in the Schedule of Disconnection Fees and Transfer Charges published on Spark Website.

•"we", "our" or "us" means Spark New Zealand Trading Limited.

•"you" or "your" means the customer who is party to this agreement.