Spark Mobile Postpaid Agreement After 21 September 2012

Spark Mobile Postpaid Agreement After 21 September 2012

Spark Mobile Postpaid Agreement After 21 September 2012

  1. Our agreement
  2. Interpretation
  3. Terms of agreement
  4. Provision of Services
  5. Mobile phone numbers
  6. Wireless data and content
  7. Mobile phone 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
  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

1. Our agreement

  1. If you have a Spark Postpaid connection that operates on our Spark Mobile Network then you will need to read the terms and conditions set out below which govern our contractual relationship with you for the provision of Spark Postpaid Services on our Spark Mobile Network.
  2. This agreement applies from 21 September 2012.
  3. We may amend this agreement from time to time. The latest version of the agreement is published on the Spark Website. Please check the Spark Website regularly for updates.
  4. 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:
    1. the terms and conditions set out in this agreement; and
    2. 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 second Interpretation section at the end of this agreement.

3. Term of agreement

  1. This agreement starts when we accept your application to use the Services and will continue for at least the Minimum Term, unless this agreement is terminated in any of the ways described in clause 11.
  2. 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 Mobile Network coverage area) using a Mobile Phone, and access a range of other Services. You will need a SIM to be able to connect to our Mobile Network and use the Services.
  2. We will try our best to provide quality Services to you at all times. But, 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. We cannot guarantee continuous or fault-free Services.
  3. The quality, speed and coverage of the Services also depends partly on your Mobile Phone, partly on our Network and partly on other telecommunications networks.
  4. The Services may also be unavailable at times due to maintenance, repairs, upgrades or modifications to our Network or other networks used by us to provide the Services to you. Where it is within our control, we will try to keep such unavailability to a minimum.
  5. Roaming relies on the use of overseas telecommunication networks which we do not control and therefore we cannot offer any guarantees about the quality of Roaming services. Some Services, such as video calling, may not be available while Roaming. The use by you of overseas telecommunication networks will be subject to the terms and conditions of the relevant network operator. Those terms and conditions will apply in addition to the terms and conditions contained in this agreement.
  6. You agree to:
    1. comply with all your obligations in this agreement;
    2. comply with the law and all the relevant codes and regulations and not use your Mobile Phone or the Services in a way that is abusive or offensive or for an illegal, immoral or fraudulent purpose;
    3. 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;
    4. 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;
    5. do not use your Mobile Phone or the Services in a way that interferes with any other person's use of the Services;
    6. not use your Mobile Phone or the Services to spam, mail bomb, publish any offensive or 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;
    7. use only Mobile Phones and accessories approved for use with our Mobile Network and which comply with all relevant legislation and regulations;
    8. not connect a SIM you have obtained from us to any other telecommunications network.
    9. follow the instructions and guidelines (including any Fair Use Policies) we give you about the use of the Services and your Mobile Phone;
    10. 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
    11. authorise us to conduct a credit check on you from time to time when we consider it appropriate;
    12. not use your Mobile Phone or the Services for voice over internet protocol or messaging over internet protocol;
    13. not sell or otherwise make the Services available to others or commercially exploit the Services or any Content in any way;
    14. agree that using the Services does not give you any rights in any part of our Network;
    15. never interfere with any part of our Network unless you have been authorised in writing by us to do so;
    16. authorise us or a person approved by us to remotely access your Mobile Phone in order to perform any tasks that in our opinion are reasonably necessary to 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;
    17. pay for the repair or replacement of any Mobile Phone or other equipment you rent from us, or which is loaned to you, which is lost, stolen or damaged;
    18. return any Mobile Phone or other equipment you rent from us, or which is loaned to you, when you give up or we stop providing the Services relating to that Mobile Phone or other equipment. If you don't return the Mobile Phone or other equipment we will continue to charge you rental for it, or may recover from you the replacement cost of the Mobile Phone, and may also come onto your property and remove our Mobile Phone or other equipment; and
    19. indemnify us and any other relevant Spark Company against any legal action taken, or losses or costs we or any other relevant Spark Company incur, in connection with your use of your Mobile Phone and the Services. The indemnity in this clause shall extend to our officers, employees, contractors and agents and those of any other relevant Spark Company.
  7. You agree to make sure everyone who uses your Mobile Phone or SIM complies with the obligations and responsibilities set out in clause 4.6.
  8. We may publish a fair use policy in respect of some or all of the Services. A fair use policy will provide rules and further details around how such Services can be used. We will do this to help us prevent fraud and to ensure that excessive use of such Services does not prevent our customers from enjoying such Services. Such policies are available on the Spark Website or by contacting Spark Customer Services.

5. Mobile phone numbers

  1. Unless you Port a mobile phone number to us or you have an existing Spark mobile phone number which can be used with your Mobile Phone or SIM, we will allocate a mobile phone number to you for use with your Mobile Phone or SIM on our Network. The mobile phone number does not belong to you and you may not sell or otherwise transfer it. Any disputes regarding the allocation of mobile phone numbers will be determined by us in our absolute discretion and our decision will be final.
  2. In exceptional circumstances, we may be required to change the mobile phone number you use with your Mobile Phone or SIM. Where we are required to change your allocated mobile phone number we will try and give you notice of this change. We will not be liable for any costs which may be incurred by you or anyone else as a result of this change
  3. If you wish to Port your allocated mobile phone number to another Mobile Service Provider:
    1. you will need to contact that other Mobile Service Provider;
    2. you will be responsible for taking all necessary steps to Port your mobile phone number, other than our obligations under the LMNP Terms; and
    3. you will be responsible for all costs associated with Porting your mobile phone number.
  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 and remove any Content we consider to be inappropriate or in breach of any law or third party right.
  3. We are not responsible for:
    1. 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;
    2. 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;
    3. 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;
    4. any corruption or loss of Content stored on your Mobile Phone, or transmitted over our Network;
    5. any delay in your receipt of Content you select for transmission to your Mobile Phone; or
    6. fixing any faults in your Mobile Phone 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 Phone. We are in no way responsible for any such unauthorised access or any damage or loss suffered as a result.

7. Mobile phone and SIM

  1. Any SIM we supply to you remains our property and must be returned to us if this agreement ends. It is your responsibility to keep any SIM we supply to you in a good condition.
  2. You must keep your Mobile Phone and the SIM secure at all times. We recommend that you use a PIN and other access code features provided with your Mobile Phone and SIM to ensure that only you are able to access and use the Services. You must keep all such PINs and access codes confidential at all times. We may assume that any request or instruction we receive is authorised by you if it is made from your Mobile Phone.
  3. If a PIN is entered incorrectly three times in a row, the SIM will automatically block and it will not be possible to use it unless it is unblocked. To unblock the SIM you will need a PUK1 Code, which you can obtain from your SIM packaging or by contacting Spark Customer Services. 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. 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 Phone or the SIM supplied to you is lost, stolen or damaged. You will remain liable for all Charges incurred in relation to the use of your Mobile Phone or the SIM up to the time you inform us that your Mobile Phone or SIM is lost or stolen, whether the Charges have been incurred by you or someone else. If your Mobile Phone is lost, stolen, damaged or destroyed, you will need to purchase a new Mobile Phone and/or SIM if you wish to continue using the Services.
  5. If equipment, including your Mobile Phone and SIM, supplied to you by someone 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 Phone or other equipment that you buy directly from us will be covered by a separate warranty or sales agreement for that Mobile Phone or other equipment
  6. You must pay the purchase price of any Mobile Phone or other equipment you buy from us. We will continue to own the Mobile Phone or equipment until you have paid for it in full. The Mobile Phone or equipment will be at your risk from the time it is delivered to you.

8. Charges and billing

  1. 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. We will make your bills available to you for each billing period by post or electronic means. 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.
  2. The Charges for calls made from your Mobile Phone 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 or you do not have an Allowance, you will be Charged for the rest of the call at the applicable rate set out in your Base Plan. If you call 0900 numbers or special numbers such as 018 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 as set out in your Base Plan. Please see your Base Plan for more information about Charges for calls.
  3. The Charges for Mobile Plans and all Services are set out on the Spark Website and are also available by contacting Spark Customer Services.
  4. We may change our Charges from time to time and will notify you of any changes in accordance with clause 15.
  5. You are liable for all Charges under this agreement whether incurred by you or someone else using your Mobile Phone or SIM (with or without your knowledge). This includes when your Mobile Phone or SIM has been lost or stolen. If you no longer want to use the Services you must deactivate your SIM. Removing your SIM from your Mobile Phone will not deactivate the SIM.
  6. 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. You can find information on Roaming Charges by calling Spark Customer Services or by visiting the Spark Website.
  7. We may, at our discretion, impose credit limits for your use of the Services and we will try to notify you as soon as we impose such limits. You must observe any credit limit we set from time to time.
  8. If you think that there is a mistake in your bill, please let us know before the due date for payment. 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. You must not set-off or deduct any amount in any other circumstances. If we agree there is a mistake, we will adjust your next bill or, if appropriate, provide a refund. If we find there is no mistake and if the due date for payment has already passed, you must pay the amount outstanding immediately.
  9. 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 or interest on the unpaid amount from that date until you pay it. The interest rate will be the default rate set out on the Spark Website. 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.
  10. We may 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 fees and/or early 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. 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. Transfer and/or early disconnection fees may apply.
  3. The Allowance under your Base Plan and each extra you subscribe to:
    1. will be refreshed at the beginning of each billing period;
    2. 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;
    3. 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;
    4. may not be transferred between Mobile Plans or to a prepaid plan;
    5. may not be redeemed for cash, phone equipment, early disconnection fees, transfer fees or other Charges;
    6. cannot be transferred or assigned;
    7. expire 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
    8. is subject to any other terms and conditions of your Base Plan and the relevant extra.
  4. 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.
  5. 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 or permanently withhold, suspend or restrict (for example by placing a toll bar on your Mobile Phone) your use of any or all of the Services or disconnect you from our Network without warning if:
    1. you or anyone who uses your Mobile Phone or SIM does not comply with the terms and conditions of this agreement (including the provisions of clause 4.6) or any other agreement with us, such as any terms and conditions relating to Mobile Plans or Additional Services;
    2. you do not pay your bill by the due date specified on the bill;
    3. we are not satisfied with the results of a credit check that we have carried out on you;
    4. you go over a credit limit that we have set for you;
    5. you or anyone who uses your Mobile Phone or SIM damages our Network or puts our Network at risk;
    6. you harass, abuse or threaten our staff; or
    7. you notify us if your Mobile Phone or SIM has been lost or stolen.
  2. When we disconnect a Service for the reasons set out in clause 10.1 above, an early disconnection fee may apply as set out in our latest schedule of disconnection fees for the Mobile Network published on the Spark Website. You will remain liable for all monthly or other periodic Charges during any period where any Services are being withheld, suspended or restricted. You may also have to pay a reconnection fee before you can use the Services again.
  3. We may also suspend your use of the Services and disconnect you from our Network without warning if our Network needs urgent maintenance or upgrading.
  4. We reserve the right to change, suspend or withdraw part or all of any extra or Additional Service on giving reasonable notice.

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
  2. You may terminate this agreement before the Minimum Term has ended if you pay us:
    1. all Charges that are due; plus
    2. any applicable early disconnection fee as set out in the schedule of disconnection fees for the Mobile Network at the time you entered this agreement, published on the Spark Website.
  3. We may cancel this agreement immediately without notice to you if:
    1. we have the right to suspend your access to the Services for any of the reasons set out in clause 10.1 that in Spark's opinion have not been, or are unlikely to be, rectified;
    2. you breach this agreement in a material way and do not put it right within seven days of us asking you to;
    3. you seek to assign or transfer this agreement in breach of clause 18.1; or
    4. 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 we have good reason for believing that you are unable to pay the Charges.
  4. If this agreement ends for one of the reasons set out in this clause 11:
    1. any names, numbers and other information stored on your SIM may be lost; and
    2. 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
    3. 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. If this agreement ends for any of the reasons set out in this clause 11, or if we stop providing you with any of the Services, and you later want any of the Services reconnected, you may have to pay a reconnection charge and purchase a new SIM.
  6. We may decide to stop providing all or any part of our Services to you. If we do this, we will try to 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, calling you or by putting a notice in major daily newspapers. The agreement you have with us will remain in place.
  7. 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.
  8. If this agreement ends before the end of its Minimum Term in circumstances in which an early 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 Phone 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 Phone subsidy shall be the difference between our mobile only price for that Mobile Phone at the time you purchased it and the price you actually paid for that Mobile Phone when you signed up to this Agreement.

12. Compensation and liability

  1. Where a Service we provide to you is affected because we do not meet our responsibilities to you, and you reasonably incur expenses as a result, please let us know by calling Spark Customer Services. Where we consider it appropriate, we will refund to you an amount up to our standard monthly (or other periodical) Charge for the affected Service. For us to consider your claim, you must tell us within one month after the Service is affected. A refund will not be available where such an event occurs because we are not given correct information, or because you have not used your Mobile Phone or the Services appropriately, or through other causes beyond our reasonable control, nor will a refund be available where you have not tried to minimise your loss.
  2. At the time of your application for Spark Postpaid Services you must indicate whether you are acquiring the Services for the purposes of a business or other purposes. If you are acquiring the Services for the purposes of a business as defined in the Consumer Guarantees Act 1993, or you indicate to us that you are doing so, you agree that the provisions of that Act do not apply to the Services we provide under this agreement. If you are not acquiring the Services for those purposes, the Consumer Guarantees Act 1993 may apply to the Services we provide to you. Any rights you may have under that Act apply in addition to the rights set out in this agreement and nothing in this agreement will limit or exclude your rights under the Consumer Guarantees Act 1993.
  3. Clause 12.1 sets out your ability to claim a refund or compensation from us. Subject to clause 12.2 (if applicable), all other liability we may have to you in connection with this agreement, whether in contract, tort (including negligence) or otherwise is excluded. This exclusion applies for the benefit of the following people:
    1. us and every other Spark Company;
    2. network operators other than us whose networks are connected to each other and to our Network;
    3. all companies directly or indirectly owned, partly owned or controlled by any of the companies listed above;
    4. all officers, employees, contractors and agents of all the companies listed above; and
    5. anyone else any of the companies listed above are responsible for.

None of the people listed above is liable to you or has to pay you for anything else in connection with or resulting from anything any one of those persons does or does not do, or delays in doing, whether or not it is contemplated or authorised by any agreement you have with us. This exclusion applies whatever you are claiming for and in whatever way any liability might arise if it were not for this clause.

  1. If for any reason the exclusion in clause 12.3 does not apply, then the maximum combined amount all the people listed in clause 12.3 (together) will have to pay to you and anyone claiming through you (together) in respect of claims in connection with this agreement is:
    1. $50,000 for any one event or circumstance or series of related events or circumstances; and
    2. $100,000 in the aggregate in respect of all events and circumstances in any 12 month period

This limitation does not limit or exclude any rights you may have under the Consumer Guarantees Act 1993. Please see clause 12.2 for more information.

13. Force majeure

  1. If we are prevented from carrying out any obligation in this agreement by reason of any act of God, act of State, riot, insurrection, civil commotion, strike, sanctions, boycott, embargo or any other circumstances beyond our reasonable control, we will try to advise you of the existence of the circumstances and the expected duration of and the obligations affected by the circumstances. Our performance of this agreement will, to the extent that it is made impossible by such circumstances, be suspended until such circumstances cease to exist. We will not be liable to you for a failure to perform, or delay in performing, any such obligation set out in this agreement.

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, agencies and approved service providers to provide services for you and others, send you bills, recover and report on money you owe and keep you informed of services available to you. 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:
    1. 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
    2. 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

  1. We may change any of the terms of this agreement, remove existing terms from the agreement, or add new terms into the agreement, at our discretion. Changes may take the form of a completely new agreement. We can do this without the need to obtain the consent of the people listed in clause 12.3.
  2. We will give you at least 10 working days' notice or, wherever possible, one month's notice of any changes that we consider will have a material adverse effect on you. In all other cases we will try to give you one month's notice of any change.
  3. We may also change our Charges from time to time. Where we increase any Charges for any of the Services, we will provide you with a minimum of 10 working days' notice or wherever possible one month's notice of these changes.

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. 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.

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. 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.

Interpretation

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 data, SMS, Roaming, Cellular Secretary, Video Calling, and Your Spark on your Mobile Phone) 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
  • "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 Network" means the wideband code division multiple access network owned by us and/or other Telecom Companies which we use to provide the Services to you and other customers (commonly referred to as Spark’s mobile network, or Smartphonenetwork)
  • "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, including our Mobile Network
  • "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 Phone in countries other than New Zealand
  • "Services" means the mobile telecommunication services offered by us to you under this agreement, including the Additional Services, and anything else we do or provide in connection with those mobile telecommunication services, which may or may not incur a Charge
  • "SIM" means any subscriber identity module that we may have provided to you which enables you, when used with a Mobile Phone, 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 Phone, or by using such other contact details which are updated by us on the Spark Website
  • "Spark Postpaid Services" 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
  • "Mobile Network" means the wideband code division multiple access network owned by us and/or other Spark Companies which we use to provide the Services to you and other customers (commonly referred to as Spark's mobile network)
  • "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 phone numbers
  6. Wireless data and content
  7. Mobile phone 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
  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

1. Our agreement

  1. If you have a Spark Postpaid connection that operates on our Spark Mobile Network then you will need to read the terms and conditions set out below which govern our contractual relationship with you for the provision of Spark Postpaid Services on our Spark Mobile Network.
  2. This agreement applies from 21 September 2012.
  3. We may amend this agreement from time to time. The latest version of the agreement is published on the Spark Website. Please check the Spark Website regularly for updates.
  4. 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:
    1. the terms and conditions set out in this agreement; and
    2. 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 second Interpretation section at the end of this agreement.

3. Term of agreement

  1. This agreement starts when we accept your application to use the Services and will continue for at least the Minimum Term, unless this agreement is terminated in any of the ways described in clause 11.
  2. 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 Mobile Network coverage area) using a Mobile Phone, and access a range of other Services. You will need a SIM to be able to connect to our Mobile Network and use the Services.
  2. We will try our best to provide quality Services to you at all times. But, 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. We cannot guarantee continuous or fault-free Services.
  3. The quality, speed and coverage of the Services also depends partly on your Mobile Phone, partly on our Network and partly on other telecommunications networks.
  4. The Services may also be unavailable at times due to maintenance, repairs, upgrades or modifications to our Network or other networks used by us to provide the Services to you. Where it is within our control, we will try to keep such unavailability to a minimum.
  5. Roaming relies on the use of overseas telecommunication networks which we do not control and therefore we cannot offer any guarantees about the quality of Roaming services. Some Services, such as video calling, may not be available while Roaming. The use by you of overseas telecommunication networks will be subject to the terms and conditions of the relevant network operator. Those terms and conditions will apply in addition to the terms and conditions contained in this agreement.
  6. You agree to:
    1. comply with all your obligations in this agreement;
    2. comply with the law and all the relevant codes and regulations and not use your Mobile Phone or the Services in a way that is abusive or offensive or for an illegal, immoral or fraudulent purpose;
    3. 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;
    4. 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;
    5. do not use your Mobile Phone or the Services in a way that interferes with any other person's use of the Services;
    6. not use your Mobile Phone or the Services to spam, mail bomb, publish any offensive or 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;
    7. use only Mobile Phones and accessories approved for use with our Mobile Network and which comply with all relevant legislation and regulations;
    8. not connect a SIM you have obtained from us to any other telecommunications network.
    9. follow the instructions and guidelines (including any Fair Use Policies) we give you about the use of the Services and your Mobile Phone;
    10. 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
    11. authorise us to conduct a credit check on you from time to time when we consider it appropriate;
    12. not use your Mobile Phone or the Services for voice over internet protocol or messaging over internet protocol;
    13. not sell or otherwise make the Services available to others or commercially exploit the Services or any Content in any way;
    14. agree that using the Services does not give you any rights in any part of our Network;
    15. never interfere with any part of our Network unless you have been authorised in writing by us to do so;
    16. authorise us or a person approved by us to remotely access your Mobile Phone in order to perform any tasks that in our opinion are reasonably necessary to 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;
    17. pay for the repair or replacement of any Mobile Phone or other equipment you rent from us, or which is loaned to you, which is lost, stolen or damaged;
    18. return any Mobile Phone or other equipment you rent from us, or which is loaned to you, when you give up or we stop providing the Services relating to that Mobile Phone or other equipment. If you don't return the Mobile Phone or other equipment we will continue to charge you rental for it, or may recover from you the replacement cost of the Mobile Phone, and may also come onto your property and remove our Mobile Phone or other equipment; and
    19. indemnify us and any other relevant Spark Company against any legal action taken, or losses or costs we or any other relevant Spark Company incur, in connection with your use of your Mobile Phone and the Services. The indemnity in this clause shall extend to our officers, employees, contractors and agents and those of any other relevant Spark Company.
  7. You agree to make sure everyone who uses your Mobile Phone or SIM complies with the obligations and responsibilities set out in clause 4.6.
  8. We may publish a fair use policy in respect of some or all of the Services. A fair use policy will provide rules and further details around how such Services can be used. We will do this to help us prevent fraud and to ensure that excessive use of such Services does not prevent our customers from enjoying such Services. Such policies are available on the Spark Website or by contacting Spark Customer Services.

5. Mobile phone numbers

  1. Unless you Port a mobile phone number to us or you have an existing Spark mobile phone number which can be used with your Mobile Phone or SIM, we will allocate a mobile phone number to you for use with your Mobile Phone or SIM on our Network. The mobile phone number does not belong to you and you may not sell or otherwise transfer it. Any disputes regarding the allocation of mobile phone numbers will be determined by us in our absolute discretion and our decision will be final.
  2. In exceptional circumstances, we may be required to change the mobile phone number you use with your Mobile Phone or SIM. Where we are required to change your allocated mobile phone number we will try and give you notice of this change. We will not be liable for any costs which may be incurred by you or anyone else as a result of this change
  3. If you wish to Port your allocated mobile phone number to another Mobile Service Provider:
    1. you will need to contact that other Mobile Service Provider;
    2. you will be responsible for taking all necessary steps to Port your mobile phone number, other than our obligations under the LMNP Terms; and
    3. you will be responsible for all costs associated with Porting your mobile phone number.
  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 and remove any Content we consider to be inappropriate or in breach of any law or third party right.
  3. We are not responsible for:
    1. 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;
    2. 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;
    3. 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;
    4. any corruption or loss of Content stored on your Mobile Phone, or transmitted over our Network;
    5. any delay in your receipt of Content you select for transmission to your Mobile Phone; or
    6. fixing any faults in your Mobile Phone 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 Phone. We are in no way responsible for any such unauthorised access or any damage or loss suffered as a result.

7. Mobile phone and SIM

  1. Any SIM we supply to you remains our property and must be returned to us if this agreement ends. It is your responsibility to keep any SIM we supply to you in a good condition.
  2. You must keep your Mobile Phone and the SIM secure at all times. We recommend that you use a PIN and other access code features provided with your Mobile Phone and SIM to ensure that only you are able to access and use the Services. You must keep all such PINs and access codes confidential at all times. We may assume that any request or instruction we receive is authorised by you if it is made from your Mobile Phone.
  3. If a PIN is entered incorrectly three times in a row, the SIM will automatically block and it will not be possible to use it unless it is unblocked. To unblock the SIM you will need a PUK1 Code, which you can obtain from your SIM packaging or by contacting Spark Customer Services. 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. 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 Phone or the SIM supplied to you is lost, stolen or damaged. You will remain liable for all Charges incurred in relation to the use of your Mobile Phone or the SIM up to the time you inform us that your Mobile Phone or SIM is lost or stolen, whether the Charges have been incurred by you or someone else. If your Mobile Phone is lost, stolen, damaged or destroyed, you will need to purchase a new Mobile Phone and/or SIM if you wish to continue using the Services.
  5. If equipment, including your Mobile Phone and SIM, supplied to you by someone 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 Phone or other equipment that you buy directly from us will be covered by a separate warranty or sales agreement for that Mobile Phone or other equipment
  6. You must pay the purchase price of any Mobile Phone or other equipment you buy from us. We will continue to own the Mobile Phone or equipment until you have paid for it in full. The Mobile Phone or equipment will be at your risk from the time it is delivered to you.

8. Charges and billing

  1. 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. We will make your bills available to you for each billing period by post or electronic means. 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.
  2. The Charges for calls made from your Mobile Phone 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 or you do not have an Allowance, you will be Charged for the rest of the call at the applicable rate set out in your Base Plan. If you call 0900 numbers or special numbers such as 018 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 as set out in your Base Plan. Please see your Base Plan for more information about Charges for calls.
  3. The Charges for Mobile Plans and all Services are set out on the Spark Website and are also available by contacting Spark Customer Services.
  4. We may change our Charges from time to time and will notify you of any changes in accordance with clause 15.
  5. You are liable for all Charges under this agreement whether incurred by you or someone else using your Mobile Phone or SIM (with or without your knowledge). This includes when your Mobile Phone or SIM has been lost or stolen. If you no longer want to use the Services you must deactivate your SIM. Removing your SIM from your Mobile Phone will not deactivate the SIM.
  6. 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. You can find information on Roaming Charges by calling Spark Customer Services or by visiting the Spark Website.
  7. We may, at our discretion, impose credit limits for your use of the Services and we will try to notify you as soon as we impose such limits. You must observe any credit limit we set from time to time.
  8. If you think that there is a mistake in your bill, please let us know before the due date for payment. 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. You must not set-off or deduct any amount in any other circumstances. If we agree there is a mistake, we will adjust your next bill or, if appropriate, provide a refund. If we find there is no mistake and if the due date for payment has already passed, you must pay the amount outstanding immediately.
  9. 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 or interest on the unpaid amount from that date until you pay it. The interest rate will be the default rate set out on the Spark Website. 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.
  10. We may 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 fees and/or early 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. 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. Transfer and/or early disconnection fees may apply.
  3. The Allowance under your Base Plan and each extra you subscribe to:
    1. will be refreshed at the beginning of each billing period;
    2. 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;
    3. 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;
    4. may not be transferred between Mobile Plans or to a prepaid plan;
    5. may not be redeemed for cash, phone equipment, early disconnection fees, transfer fees or other Charges;
    6. cannot be transferred or assigned;
    7. expire 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
    8. is subject to any other terms and conditions of your Base Plan and the relevant extra.
  4. 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.
  5. 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 or permanently withhold, suspend or restrict (for example by placing a toll bar on your Mobile Phone) your use of any or all of the Services or disconnect you from our Network without warning if:
    1. you or anyone who uses your Mobile Phone or SIM does not comply with the terms and conditions of this agreement (including the provisions of clause 4.6) or any other agreement with us, such as any terms and conditions relating to Mobile Plans or Additional Services;
    2. you do not pay your bill by the due date specified on the bill;
    3. we are not satisfied with the results of a credit check that we have carried out on you;
    4. you go over a credit limit that we have set for you;
    5. you or anyone who uses your Mobile Phone or SIM damages our Network or puts our Network at risk;
    6. you harass, abuse or threaten our staff; or
    7. you notify us if your Mobile Phone or SIM has been lost or stolen.
  2. When we disconnect a Service for the reasons set out in clause 10.1 above, an early disconnection fee may apply as set out in our latest schedule of disconnection fees for the Mobile Network published on the Spark Website. You will remain liable for all monthly or other periodic Charges during any period where any Services are being withheld, suspended or restricted. You may also have to pay a reconnection fee before you can use the Services again.
  3. We may also suspend your use of the Services and disconnect you from our Network without warning if our Network needs urgent maintenance or upgrading.
  4. We reserve the right to change, suspend or withdraw part or all of any extra or Additional Service on giving reasonable notice.

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
  2. You may terminate this agreement before the Minimum Term has ended if you pay us:
    1. all Charges that are due; plus
    2. any applicable early disconnection fee as set out in the schedule of disconnection fees for the Mobile Network at the time you entered this agreement, published on the Spark Website.
  3. We may cancel this agreement immediately without notice to you if:
    1. we have the right to suspend your access to the Services for any of the reasons set out in clause 10.1 that in Spark's opinion have not been, or are unlikely to be, rectified;
    2. you breach this agreement in a material way and do not put it right within seven days of us asking you to;
    3. you seek to assign or transfer this agreement in breach of clause 18.1; or
    4. 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 we have good reason for believing that you are unable to pay the Charges.
  4. If this agreement ends for one of the reasons set out in this clause 11:
    1. any names, numbers and other information stored on your SIM may be lost; and
    2. 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
    3. 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. If this agreement ends for any of the reasons set out in this clause 11, or if we stop providing you with any of the Services, and you later want any of the Services reconnected, you may have to pay a reconnection charge and purchase a new SIM.
  6. We may decide to stop providing all or any part of our Services to you. If we do this, we will try to 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, calling you or by putting a notice in major daily newspapers. The agreement you have with us will remain in place.
  7. 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.
  8. If this agreement ends before the end of its Minimum Term in circumstances in which an early 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 Phone 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 Phone subsidy shall be the difference between our mobile only price for that Mobile Phone at the time you purchased it and the price you actually paid for that Mobile Phone when you signed up to this Agreement.

12. Compensation and liability

  1. Where a Service we provide to you is affected because we do not meet our responsibilities to you, and you reasonably incur expenses as a result, please let us know by calling Spark Customer Services. Where we consider it appropriate, we will refund to you an amount up to our standard monthly (or other periodical) Charge for the affected Service. For us to consider your claim, you must tell us within one month after the Service is affected. A refund will not be available where such an event occurs because we are not given correct information, or because you have not used your Mobile Phone or the Services appropriately, or through other causes beyond our reasonable control, nor will a refund be available where you have not tried to minimise your loss.
  2. At the time of your application for Spark Postpaid Services you must indicate whether you are acquiring the Services for the purposes of a business or other purposes. If you are acquiring the Services for the purposes of a business as defined in the Consumer Guarantees Act 1993, or you indicate to us that you are doing so, you agree that the provisions of that Act do not apply to the Services we provide under this agreement. If you are not acquiring the Services for those purposes, the Consumer Guarantees Act 1993 may apply to the Services we provide to you. Any rights you may have under that Act apply in addition to the rights set out in this agreement and nothing in this agreement will limit or exclude your rights under the Consumer Guarantees Act 1993.
  3. Clause 12.1 sets out your ability to claim a refund or compensation from us. Subject to clause 12.2 (if applicable), all other liability we may have to you in connection with this agreement, whether in contract, tort (including negligence) or otherwise is excluded. This exclusion applies for the benefit of the following people:
    1. us and every other Spark Company;
    2. network operators other than us whose networks are connected to each other and to our Network;
    3. all companies directly or indirectly owned, partly owned or controlled by any of the companies listed above;
    4. all officers, employees, contractors and agents of all the companies listed above; and
    5. anyone else any of the companies listed above are responsible for.

None of the people listed above is liable to you or has to pay you for anything else in connection with or resulting from anything any one of those persons does or does not do, or delays in doing, whether or not it is contemplated or authorised by any agreement you have with us. This exclusion applies whatever you are claiming for and in whatever way any liability might arise if it were not for this clause.

  1. If for any reason the exclusion in clause 12.3 does not apply, then the maximum combined amount all the people listed in clause 12.3 (together) will have to pay to you and anyone claiming through you (together) in respect of claims in connection with this agreement is:
    1. $50,000 for any one event or circumstance or series of related events or circumstances; and
    2. $100,000 in the aggregate in respect of all events and circumstances in any 12 month period

This limitation does not limit or exclude any rights you may have under the Consumer Guarantees Act 1993. Please see clause 12.2 for more information.

13. Force majeure

  1. If we are prevented from carrying out any obligation in this agreement by reason of any act of God, act of State, riot, insurrection, civil commotion, strike, sanctions, boycott, embargo or any other circumstances beyond our reasonable control, we will try to advise you of the existence of the circumstances and the expected duration of and the obligations affected by the circumstances. Our performance of this agreement will, to the extent that it is made impossible by such circumstances, be suspended until such circumstances cease to exist. We will not be liable to you for a failure to perform, or delay in performing, any such obligation set out in this agreement.

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, agencies and approved service providers to provide services for you and others, send you bills, recover and report on money you owe and keep you informed of services available to you. 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:
    1. 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
    2. 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

  1. We may change any of the terms of this agreement, remove existing terms from the agreement, or add new terms into the agreement, at our discretion. Changes may take the form of a completely new agreement. We can do this without the need to obtain the consent of the people listed in clause 12.3.
  2. We will give you at least 10 working days' notice or, wherever possible, one month's notice of any changes that we consider will have a material adverse effect on you. In all other cases we will try to give you one month's notice of any change.
  3. We may also change our Charges from time to time. Where we increase any Charges for any of the Services, we will provide you with a minimum of 10 working days' notice or wherever possible one month's notice of these changes.

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. 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.

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. 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.

Interpretation

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 data, SMS, Roaming, Cellular Secretary, Video Calling, and Your Spark on your Mobile Phone) 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
  • "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 Network" means the wideband code division multiple access network owned by us and/or other Telecom Companies which we use to provide the Services to you and other customers (commonly referred to as Spark’s mobile network, or Smartphonenetwork)
  • "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, including our Mobile Network
  • "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 Phone in countries other than New Zealand
  • "Services" means the mobile telecommunication services offered by us to you under this agreement, including the Additional Services, and anything else we do or provide in connection with those mobile telecommunication services, which may or may not incur a Charge
  • "SIM" means any subscriber identity module that we may have provided to you which enables you, when used with a Mobile Phone, 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 Phone, or by using such other contact details which are updated by us on the Spark Website
  • "Spark Postpaid Services" 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
  • "Mobile Network" means the wideband code division multiple access network owned by us and/or other Spark Companies which we use to provide the Services to you and other customers (commonly referred to as Spark's mobile network)
  • "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 phone numbers
  6. Wireless data and content
  7. Mobile phone 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
  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

1. Our agreement

  1. If you have a Spark Postpaid connection that operates on our Spark Mobile Network then you will need to read the terms and conditions set out below which govern our contractual relationship with you for the provision of Spark Postpaid Services on our Spark Mobile Network.
  2. This agreement applies from 21 September 2012.
  3. We may amend this agreement from time to time. The latest version of the agreement is published on the Spark Website. Please check the Spark Website regularly for updates.
  4. 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:
    1. the terms and conditions set out in this agreement; and
    2. 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 second Interpretation section at the end of this agreement.

3. Term of agreement

  1. This agreement starts when we accept your application to use the Services and will continue for at least the Minimum Term, unless this agreement is terminated in any of the ways described in clause 11.
  2. 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 Mobile Network coverage area) using a Mobile Phone, and access a range of other Services. You will need a SIM to be able to connect to our Mobile Network and use the Services.
  2. We will try our best to provide quality Services to you at all times. But, 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. We cannot guarantee continuous or fault-free Services.
  3. The quality, speed and coverage of the Services also depends partly on your Mobile Phone, partly on our Network and partly on other telecommunications networks.
  4. The Services may also be unavailable at times due to maintenance, repairs, upgrades or modifications to our Network or other networks used by us to provide the Services to you. Where it is within our control, we will try to keep such unavailability to a minimum.
  5. Roaming relies on the use of overseas telecommunication networks which we do not control and therefore we cannot offer any guarantees about the quality of Roaming services. Some Services, such as video calling, may not be available while Roaming. The use by you of overseas telecommunication networks will be subject to the terms and conditions of the relevant network operator. Those terms and conditions will apply in addition to the terms and conditions contained in this agreement.
  6. You agree to:
    1. comply with all your obligations in this agreement;
    2. comply with the law and all the relevant codes and regulations and not use your Mobile Phone or the Services in a way that is abusive or offensive or for an illegal, immoral or fraudulent purpose;
    3. 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;
    4. 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;
    5. do not use your Mobile Phone or the Services in a way that interferes with any other person's use of the Services;
    6. not use your Mobile Phone or the Services to spam, mail bomb, publish any offensive or 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;
    7. use only Mobile Phones and accessories approved for use with our Mobile Network and which comply with all relevant legislation and regulations;
    8. not connect a SIM you have obtained from us to any other telecommunications network.
    9. follow the instructions and guidelines (including any Fair Use Policies) we give you about the use of the Services and your Mobile Phone;
    10. 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
    11. authorise us to conduct a credit check on you from time to time when we consider it appropriate;
    12. not use your Mobile Phone or the Services for voice over internet protocol or messaging over internet protocol;
    13. not sell or otherwise make the Services available to others or commercially exploit the Services or any Content in any way;
    14. agree that using the Services does not give you any rights in any part of our Network;
    15. never interfere with any part of our Network unless you have been authorised in writing by us to do so;
    16. authorise us or a person approved by us to remotely access your Mobile Phone in order to perform any tasks that in our opinion are reasonably necessary to 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;
    17. pay for the repair or replacement of any Mobile Phone or other equipment you rent from us, or which is loaned to you, which is lost, stolen or damaged;
    18. return any Mobile Phone or other equipment you rent from us, or which is loaned to you, when you give up or we stop providing the Services relating to that Mobile Phone or other equipment. If you don't return the Mobile Phone or other equipment we will continue to charge you rental for it, or may recover from you the replacement cost of the Mobile Phone, and may also come onto your property and remove our Mobile Phone or other equipment; and
    19. indemnify us and any other relevant Spark Company against any legal action taken, or losses or costs we or any other relevant Spark Company incur, in connection with your use of your Mobile Phone and the Services. The indemnity in this clause shall extend to our officers, employees, contractors and agents and those of any other relevant Spark Company.
  7. You agree to make sure everyone who uses your Mobile Phone or SIM complies with the obligations and responsibilities set out in clause 4.6.
  8. We may publish a fair use policy in respect of some or all of the Services. A fair use policy will provide rules and further details around how such Services can be used. We will do this to help us prevent fraud and to ensure that excessive use of such Services does not prevent our customers from enjoying such Services. Such policies are available on the Spark Website or by contacting Spark Customer Services.

5. Mobile phone numbers

  1. Unless you Port a mobile phone number to us or you have an existing Spark mobile phone number which can be used with your Mobile Phone or SIM, we will allocate a mobile phone number to you for use with your Mobile Phone or SIM on our Network. The mobile phone number does not belong to you and you may not sell or otherwise transfer it. Any disputes regarding the allocation of mobile phone numbers will be determined by us in our absolute discretion and our decision will be final.
  2. In exceptional circumstances, we may be required to change the mobile phone number you use with your Mobile Phone or SIM. Where we are required to change your allocated mobile phone number we will try and give you notice of this change. We will not be liable for any costs which may be incurred by you or anyone else as a result of this change
  3. If you wish to Port your allocated mobile phone number to another Mobile Service Provider:
    1. you will need to contact that other Mobile Service Provider;
    2. you will be responsible for taking all necessary steps to Port your mobile phone number, other than our obligations under the LMNP Terms; and
    3. you will be responsible for all costs associated with Porting your mobile phone number.
  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 and remove any Content we consider to be inappropriate or in breach of any law or third party right.
  3. We are not responsible for:
    1. 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;
    2. 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;
    3. 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;
    4. any corruption or loss of Content stored on your Mobile Phone, or transmitted over our Network;
    5. any delay in your receipt of Content you select for transmission to your Mobile Phone; or
    6. fixing any faults in your Mobile Phone 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 Phone. We are in no way responsible for any such unauthorised access or any damage or loss suffered as a result.

7. Mobile phone and SIM

  1. Any SIM we supply to you remains our property and must be returned to us if this agreement ends. It is your responsibility to keep any SIM we supply to you in a good condition.
  2. You must keep your Mobile Phone and the SIM secure at all times. We recommend that you use a PIN and other access code features provided with your Mobile Phone and SIM to ensure that only you are able to access and use the Services. You must keep all such PINs and access codes confidential at all times. We may assume that any request or instruction we receive is authorised by you if it is made from your Mobile Phone.
  3. If a PIN is entered incorrectly three times in a row, the SIM will automatically block and it will not be possible to use it unless it is unblocked. To unblock the SIM you will need a PUK1 Code, which you can obtain from your SIM packaging or by contacting Spark Customer Services. 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. 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 Phone or the SIM supplied to you is lost, stolen or damaged. You will remain liable for all Charges incurred in relation to the use of your Mobile Phone or the SIM up to the time you inform us that your Mobile Phone or SIM is lost or stolen, whether the Charges have been incurred by you or someone else. If your Mobile Phone is lost, stolen, damaged or destroyed, you will need to purchase a new Mobile Phone and/or SIM if you wish to continue using the Services.
  5. If equipment, including your Mobile Phone and SIM, supplied to you by someone 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 Phone or other equipment that you buy directly from us will be covered by a separate warranty or sales agreement for that Mobile Phone or other equipment
  6. You must pay the purchase price of any Mobile Phone or other equipment you buy from us. We will continue to own the Mobile Phone or equipment until you have paid for it in full. The Mobile Phone or equipment will be at your risk from the time it is delivered to you.

8. Charges and billing

  1. 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. We will make your bills available to you for each billing period by post or electronic means. 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.
  2. The Charges for calls made from your Mobile Phone 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 or you do not have an Allowance, you will be Charged for the rest of the call at the applicable rate set out in your Base Plan. If you call 0900 numbers or special numbers such as 018 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 as set out in your Base Plan. Please see your Base Plan for more information about Charges for calls.
  3. The Charges for Mobile Plans and all Services are set out on the Spark Website and are also available by contacting Spark Customer Services.
  4. We may change our Charges from time to time and will notify you of any changes in accordance with clause 15.
  5. You are liable for all Charges under this agreement whether incurred by you or someone else using your Mobile Phone or SIM (with or without your knowledge). This includes when your Mobile Phone or SIM has been lost or stolen. If you no longer want to use the Services you must deactivate your SIM. Removing your SIM from your Mobile Phone will not deactivate the SIM.
  6. 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. You can find information on Roaming Charges by calling Spark Customer Services or by visiting the Spark Website.
  7. We may, at our discretion, impose credit limits for your use of the Services and we will try to notify you as soon as we impose such limits. You must observe any credit limit we set from time to time.
  8. If you think that there is a mistake in your bill, please let us know before the due date for payment. 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. You must not set-off or deduct any amount in any other circumstances. If we agree there is a mistake, we will adjust your next bill or, if appropriate, provide a refund. If we find there is no mistake and if the due date for payment has already passed, you must pay the amount outstanding immediately.
  9. 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 or interest on the unpaid amount from that date until you pay it. The interest rate will be the default rate set out on the Spark Website. 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.
  10. We may 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 fees and/or early 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. 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. Transfer and/or early disconnection fees may apply.
  3. The Allowance under your Base Plan and each extra you subscribe to:
    1. will be refreshed at the beginning of each billing period;
    2. 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;
    3. 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;
    4. may not be transferred between Mobile Plans or to a prepaid plan;
    5. may not be redeemed for cash, phone equipment, early disconnection fees, transfer fees or other Charges;
    6. cannot be transferred or assigned;
    7. expire 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
    8. is subject to any other terms and conditions of your Base Plan and the relevant extra.
  4. 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.
  5. 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 or permanently withhold, suspend or restrict (for example by placing a toll bar on your Mobile Phone) your use of any or all of the Services or disconnect you from our Network without warning if:
    1. you or anyone who uses your Mobile Phone or SIM does not comply with the terms and conditions of this agreement (including the provisions of clause 4.6) or any other agreement with us, such as any terms and conditions relating to Mobile Plans or Additional Services;
    2. you do not pay your bill by the due date specified on the bill;
    3. we are not satisfied with the results of a credit check that we have carried out on you;
    4. you go over a credit limit that we have set for you;
    5. you or anyone who uses your Mobile Phone or SIM damages our Network or puts our Network at risk;
    6. you harass, abuse or threaten our staff; or
    7. you notify us if your Mobile Phone or SIM has been lost or stolen.
  2. When we disconnect a Service for the reasons set out in clause 10.1 above, an early disconnection fee may apply as set out in our latest schedule of disconnection fees for the Mobile Network published on the Spark Website. You will remain liable for all monthly or other periodic Charges during any period where any Services are being withheld, suspended or restricted. You may also have to pay a reconnection fee before you can use the Services again.
  3. We may also suspend your use of the Services and disconnect you from our Network without warning if our Network needs urgent maintenance or upgrading.
  4. We reserve the right to change, suspend or withdraw part or all of any extra or Additional Service on giving reasonable notice.

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
  2. You may terminate this agreement before the Minimum Term has ended if you pay us:
    1. all Charges that are due; plus
    2. any applicable early disconnection fee as set out in the schedule of disconnection fees for the Mobile Network at the time you entered this agreement, published on the Spark Website.
  3. We may cancel this agreement immediately without notice to you if:
    1. we have the right to suspend your access to the Services for any of the reasons set out in clause 10.1 that in Spark's opinion have not been, or are unlikely to be, rectified;
    2. you breach this agreement in a material way and do not put it right within seven days of us asking you to;
    3. you seek to assign or transfer this agreement in breach of clause 18.1; or
    4. 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 we have good reason for believing that you are unable to pay the Charges.
  4. If this agreement ends for one of the reasons set out in this clause 11:
    1. any names, numbers and other information stored on your SIM may be lost; and
    2. 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
    3. 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. If this agreement ends for any of the reasons set out in this clause 11, or if we stop providing you with any of the Services, and you later want any of the Services reconnected, you may have to pay a reconnection charge and purchase a new SIM.
  6. We may decide to stop providing all or any part of our Services to you. If we do this, we will try to 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, calling you or by putting a notice in major daily newspapers. The agreement you have with us will remain in place.
  7. 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.
  8. If this agreement ends before the end of its Minimum Term in circumstances in which an early 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 Phone 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 Phone subsidy shall be the difference between our mobile only price for that Mobile Phone at the time you purchased it and the price you actually paid for that Mobile Phone when you signed up to this Agreement.

12. Compensation and liability

  1. Where a Service we provide to you is affected because we do not meet our responsibilities to you, and you reasonably incur expenses as a result, please let us know by calling Spark Customer Services. Where we consider it appropriate, we will refund to you an amount up to our standard monthly (or other periodical) Charge for the affected Service. For us to consider your claim, you must tell us within one month after the Service is affected. A refund will not be available where such an event occurs because we are not given correct information, or because you have not used your Mobile Phone or the Services appropriately, or through other causes beyond our reasonable control, nor will a refund be available where you have not tried to minimise your loss.
  2. At the time of your application for Spark Postpaid Services you must indicate whether you are acquiring the Services for the purposes of a business or other purposes. If you are acquiring the Services for the purposes of a business as defined in the Consumer Guarantees Act 1993, or you indicate to us that you are doing so, you agree that the provisions of that Act do not apply to the Services we provide under this agreement. If you are not acquiring the Services for those purposes, the Consumer Guarantees Act 1993 may apply to the Services we provide to you. Any rights you may have under that Act apply in addition to the rights set out in this agreement and nothing in this agreement will limit or exclude your rights under the Consumer Guarantees Act 1993.
  3. Clause 12.1 sets out your ability to claim a refund or compensation from us. Subject to clause 12.2 (if applicable), all other liability we may have to you in connection with this agreement, whether in contract, tort (including negligence) or otherwise is excluded. This exclusion applies for the benefit of the following people:
    1. us and every other Spark Company;
    2. network operators other than us whose networks are connected to each other and to our Network;
    3. all companies directly or indirectly owned, partly owned or controlled by any of the companies listed above;
    4. all officers, employees, contractors and agents of all the companies listed above; and
    5. anyone else any of the companies listed above are responsible for.

None of the people listed above is liable to you or has to pay you for anything else in connection with or resulting from anything any one of those persons does or does not do, or delays in doing, whether or not it is contemplated or authorised by any agreement you have with us. This exclusion applies whatever you are claiming for and in whatever way any liability might arise if it were not for this clause.

  1. If for any reason the exclusion in clause 12.3 does not apply, then the maximum combined amount all the people listed in clause 12.3 (together) will have to pay to you and anyone claiming through you (together) in respect of claims in connection with this agreement is:
    1. $50,000 for any one event or circumstance or series of related events or circumstances; and
    2. $100,000 in the aggregate in respect of all events and circumstances in any 12 month period

This limitation does not limit or exclude any rights you may have under the Consumer Guarantees Act 1993. Please see clause 12.2 for more information.

13. Force majeure

  1. If we are prevented from carrying out any obligation in this agreement by reason of any act of God, act of State, riot, insurrection, civil commotion, strike, sanctions, boycott, embargo or any other circumstances beyond our reasonable control, we will try to advise you of the existence of the circumstances and the expected duration of and the obligations affected by the circumstances. Our performance of this agreement will, to the extent that it is made impossible by such circumstances, be suspended until such circumstances cease to exist. We will not be liable to you for a failure to perform, or delay in performing, any such obligation set out in this agreement.

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, agencies and approved service providers to provide services for you and others, send you bills, recover and report on money you owe and keep you informed of services available to you. 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:
    1. 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
    2. 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

  1. We may change any of the terms of this agreement, remove existing terms from the agreement, or add new terms into the agreement, at our discretion. Changes may take the form of a completely new agreement. We can do this without the need to obtain the consent of the people listed in clause 12.3.
  2. We will give you at least 10 working days' notice or, wherever possible, one month's notice of any changes that we consider will have a material adverse effect on you. In all other cases we will try to give you one month's notice of any change.
  3. We may also change our Charges from time to time. Where we increase any Charges for any of the Services, we will provide you with a minimum of 10 working days' notice or wherever possible one month's notice of these changes.

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. 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.

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. 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.

Interpretation

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 data, SMS, Roaming, Cellular Secretary, Video Calling, and Your Spark on your Mobile Phone) 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
  • "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 Network" means the wideband code division multiple access network owned by us and/or other Telecom Companies which we use to provide the Services to you and other customers (commonly referred to as Spark’s mobile network, or Smartphonenetwork)
  • "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, including our Mobile Network
  • "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 Phone in countries other than New Zealand
  • "Services" means the mobile telecommunication services offered by us to you under this agreement, including the Additional Services, and anything else we do or provide in connection with those mobile telecommunication services, which may or may not incur a Charge
  • "SIM" means any subscriber identity module that we may have provided to you which enables you, when used with a Mobile Phone, 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 Phone, or by using such other contact details which are updated by us on the Spark Website
  • "Spark Postpaid Services" 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
  • "Mobile Network" means the wideband code division multiple access network owned by us and/or other Spark Companies which we use to provide the Services to you and other customers (commonly referred to as Spark's mobile network)
  • "we", "our" or "us" means Spark New Zealand Trading Limited
  • "you" or "your" means the customer who is party to this agreement.