Spark Mobile Prepaid Agreement After 1 February 2011

Spark Mobile Prepaid Agreement After 1 February 2011

Spark Mobile Prepaid Agreement After 1 February 2011

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

1. Our agreement

  1. If you have a Spark Prepaid connection that operates on our WCDMA 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 Prepaid Services on our WCDMA Network.
  2. This agreement applies from 1 May 2009.
  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 Prepaid Plan and any specific terms and conditions relating to the Services you use, like mobile data services. If there is any conflict or inconsistency between:
    • (a) the terms and conditions set out in this agreement; and
    • (b) the terms and conditions relating to your Prepaid Plan or the specific terms and conditions relating to the Services you use,

then the terms and conditions referred to in paragraph (b) will prevail.

2. Interpretation

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

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

3. Commencement of agreement

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

4. Provision of Services

  1. Spark Prepaid Services allow you to make and receive most local, national and international calls (when within our WCDMA 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 WCDMA 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:
    • comply with all your obligations in this agreement;
    • 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;
    • 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;
    • do not use your Mobile Phone or the Services in a way that is abusive or offensive or for an illegal, immoral or fraudulent purpose;
    • do not use your Mobile Phone or the Services in a way that interferes with any other person's use of the Services;
    • do 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;
    • use only Mobile Phones and accessories approved for use with our WCDMA Network and which comply with all relevant legislation and regulations;
    • do not connect a SIM you have obtained from us to any other telecommunications network.
    • follow the instructions and guidelines (including any Fair Use Policies) we give you about the use of the Services and your Mobile Phone;
    • do not do anything or introduce anything (including any virus) that may damage or harm our Network or equipment or any third party's network or equipment
    • authorise us to conduct a credit check on you from time to time when we consider it appropriate;
    • do not use your Mobile Phone or the Services for voice over internet protocol or messaging over internet protocol;
    • do not sell or otherwise make the Services available to others or commercially exploit the Services or any Content in any way;
    • agree that using the Services does not give you any rights in any part of our Network;
    • never interfere with any part of our Network unless you have been authorised in writing by us to do so;
    • 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;
    • 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;
    • 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
    • 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:
    • you will need to contact that other Mobile Service Provider;
    • you will be responsible for taking all necessary steps to Port the mobile phone number, other than our obligations under the LMNP Terms; and
    • you will be responsible for all costs associated with Porting the mobile phone number.
  4. If you have not Ported the mobile phone number allocated to you prior to either the termination of this agreement, your Spark Prepaid Account being deactivated or your access to the Services being disconnected, we may reallocate that number to another customer.

6. Wireless data and content

  1. If the Services provide links to third party sites, we are in no way responsible for such links or for the Content on any such sites. We have included these links for convenience only and this inclusion is in no way an endorsement of the applicable site or third party.
  2. If the Services allow you to access Content that originates from you or third parties, we may monitor any Content made available by you or any third party 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:
    • ensuring that any Content you access or make available through using the Services will be private or secure or free from viruses or other harmful things;
    • 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;
    • 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;
    • any corruption or loss of Content stored on, or transmitted over, our Network;
    • any delay in your receipt of Content you select for transmission to your Mobile Phone; or
    • fixing any faults in your Mobile Phone or SIM as a result of you accessing Content.
  4. Unwanted programs or Content may be downloaded from the internet without your knowledge, which may give unauthorised persons access to your Mobile Phone. 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 comes with a new PUK1 Code, if you wish to continue using the Services.
  4. You must inform us immediately if your Mobile Phone or the SIM supplied to you is lost, stolen or damaged. You will remain liable for all Charges incurred in relation to the use of your Mobile Phone or the SIM up to the time you inform us that your Mobile Phone or SIM is lost or stolen, whether the Charges have been incurred by you or someone else. If your Mobile Phone is lost, stolen, damaged or destroyed, we will have no obligation to make a refund to you for the credit left on your Spark Prepaid Account and you will need to purchase a new Mobile Phone and/or SIM if you wish to continue using the Services.
  5. If equipment, including your Mobile Phone and SIM, supplied to you by someone else does not work properly, you need to contact the relevant equipment supplier or manufacturer, rather than us, about the problem. We are in no way responsible if this equipment supplied by someone other than us is damaged as a result of the unauthorised use on our Network, or if it does not work on our Network. We are under no obligation to take any action so you can access the Services using this equipment.
  6. Any responsibilities we may have for a Mobile Phone or other equipment that you buy directly from us will be covered by a separate warranty or sales agreement for that Mobile Phone or other equipment.
  7. You must pay the purchase price of any Mobile Phone or other equipment you buy from us. We will continue to own the Mobile Phone or other equipment until you have paid for it in full. The Mobile Phone or other equipment will be at your risk from the time it is received by you.

8. Charges and your account

  1. In order to use the Services you will need to have a Spark Prepaid Account which is in credit. As Charges are incurred they will be deducted from the credit balance of your Spark Prepaid Account. You can add additional credit to your Spark Prepaid Account by buying and registering a Spark Prepaid Service card or voucher or by using one of the other means of payment accepted by us from time to time. For more information on how to top up your Spark Prepaid Account please refer to the Spark Website or contact Spark Customer Services. No bill will be sent to you in relation to your use of Spark Prepaid Services.
  2. Each Spark Prepaid Service card or voucher has an expiry date printed on it and cannot be used after that date. We will not give refunds for any cards or vouchers not used by their expiry date. If you have a Spark Prepaid Service card or voucher which has not reached its expiry date and appears to be faulty, just fill in the complaint form available from any Spark retailer or by contacting Spark Customer Services. Send the form with the faulty Spark Prepaid Service card or voucher to Spark, FreePost No. 4083, Private Bag 92028, Auckland. We will check the card or voucher and, if it is faulty, send you a replacement card or voucher.
  3. The Charges for calls made from your Mobile Phone are set out in your Prepaid Plan. Generally, there is a minimum one minute charge for each call and after the first minute calls are charged either per second or are rounded up and charged either per second or are rounded up and charged by the minute, depending on your Prepaid Plan. Please see your Prepaid Plan for more information about Charges for calls. The Charges for our other Services are set out on the Spark Website and are also available by contacting Spark Customer Services.
  4. We may change our Charges from time to time and will notify you of any changes in accordance with clause 14.
  5. 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.
  6. If the credit balance on your Spark Prepaid Account is used up while you are on a call, the call will be automatically disconnected. We will not be liable for calls being disconnected after your credit has been used up.
  7. If you have no credit on your Spark Prepaid Account you will not be able to make any outgoing calls (except to emergency services on 111 or to Spark Customer Services) or use any other Services that would incur a Charge.
  8. Once you add credit to your Spark Prepaid Account you will need to use that credit within a period of 12 months. Any credit not used within 12 months will expire and you will need to add additional credit in order to use the Services. We will not give you a refund for any credit that expires.
  9. You must add credit to your Spark Prepaid Account at least once every 12 months, otherwise your Spark Prepaid Account will be deactivated. If this happens, clause 10.2 will apply.
  10. If you get a new mobile telephone number or SIM you may need a new Spark Prepaid Account for that number or SIM. Credit may not be transferred from one Spark Prepaid Account or SIM to another Spark Prepaid Account or SIM.

9. Withholding, suspending or restricting services

  1. We may withhold, suspend or restrict your use of any or all of the Services or disconnect you from the Network without warning if:
    • you or anyone who uses your Mobile Phone or SIM does not comply with the terms and conditions of this agreement (including the provisions of clause 4.6) or any other agreement with us, including any terms and conditions relating to Additional Services;
    • you or anyone who uses your Mobile Phone or SIM damages our Network or puts our Network at risk;
    • you harass, abuse or threaten our staff; or
    • you notify us that your Mobile Phone or SIM has been lost or stolen.
  2. When we withhold, suspend, restrict or disconnect a Service for the reasons set out in clause 9.1 above, you may 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 Services, including Additional Services, on giving reasonable notice.

10. Giving up or ending services

  1. You may end this agreement at any time for any reason by:
    • simply ceasing to add credit to your Spark Prepaid Account at least once every 12 months (see clause 8.9 above);
    • contacting Spark Customer Services;
    • upgrading to one of our Spark Postpaid plans; or
    • Porting your mobile phone number to another Mobile Service Provider.
  2. If this agreement ends for one of the reasons in clause 10.1:
    • any unused Spark Prepaid Service cards or vouchers you have will still expire on their expiry date;
    • any unused credit on your Spark Prepaid Account will lapse;
    • any names, numbers and other information stored on your SIM may be lost; and
    • unless we agree otherwise (for example, if you have transferred to another Spark mobile call plan covered by another agreement with us) or unless it has been Ported prior to giving up the Services, any mobile phone number allocated for you to use under this agreement will no longer be available to you.
  3. You may temporarily or permanently give up any Additional Service by calling Spark Customer Services.
  4. If you end this agreement or give up any Service and later want it reconnected, you may have to pay a reconnection charge and purchase a new SIM.
  5. We may decide to stop providing any 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.
  6. Ending this agreement does not affect any rights and responsibilities which are intended to continue or come into force afterwards.

11. Compensation and Liability

  1. 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 contribute to your expenses by sending you Spark Prepaid Service cards or vouchers, or by adding credit to your Spark Prepaid Account, to the value we consider appropriate in the circumstances. For us to consider your claim, you must tell us within one month after the relevant Service is affected. Spark Prepaid Service cards and vouchers and credits are not 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 are they available where you have not tried to minimise your loss.
  2. 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 11.1 sets out your ability to claim compensation from us. Subject to clause 11.2 (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:
    • us and every other Spark Company;
    • network operators other than us whose networks are connected to each other and to our Network;
    • all companies directly or indirectly owned, partly owned or controlled by any of the companies listed above;
    • all officers, employees, contractors and agents of all the companies listed above; and
    • 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.
  4. If for any reason the exclusion in clause 11.3 does not apply, then the maximum combined amount all the people listed in clause 11.3 (together) will have to pay to you and anyone claiming through you (together) in respect of claims in connection with this agreement is:
    • $5,000 for any one event or circumstance or series of related events or circumstances; and
    • $10,000 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 11.2 for more information.

12. Force Majeure

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 circumstance 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.

13. Information about you

  1. While you have an agreement with any Spark Company, you agree that we and other Spark Companies may collect information about you. The information may be obtained from you, from others, or generated within our Network when you or anyone else uses the Services or the services of any service provider approved by us. You may decide whether to provide any information any of us request from you. However, if you do not provide it, we and other Spark Companies may not be able to provide services to you. You may ask to see information any Spark Company holds about you and ask for any details that are wrong to be corrected.
  2. We, other Spark Companies and, to the extent appropriate, any service providers approved by us, including service providers providing directory listing and directory assistance services, may hold information about you and share it to the extent appropriate with each other, with Spark employees, contractors and agents and any approved service provider and with credit reference and debt collection agencies. This enables us, other Spark Companies, 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.
  4. We, and other Spark Companies may:
    • share with other network operators the mobile phone numbers allocated to you and any other information (not including your name and address) needed to enable you to make and receive calls through their networks; and
    • share, to the extent appropriate, your name, address and the mobile phone numbers allocated to you with any person (except other network operators) using services provided by any of us or any service provider approved by us for providing directory assistance and directory listing services. This information may also be used or accessed by us or any such approved service provider in or from any directories and other publicly available accessible publications and databases.
  5. You may prefer to restrict access to your name, address and mobile phone numbers allocated to you. Please contact Spark Customer Services if you want to know about the ways you can do this.
  6. We may occasionally monitor telephone calls between customers and our personnel so as to help train our personnel to provide better customer service. Any information we collect by doing this will be used in strict compliance with all applicable privacy laws.
  7. You must contact Spark Customer Services as soon as possible about any change to your name, address or any other details you have provided to us

14. Changing these terms

  1. 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 11.3.
  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 detrimental effect on you. In all other cases we will try to give you one months' 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.

15. Sending notices

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

16. Meeting our responsibilities through agents and service providers

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

17. Transferring our responsibilities

We may transfer to someone else all or any part of our side of the agreement you have with us.

18. Severability

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

19. Waiver

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

20. Governing Law

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

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

1. Our agreement

  1. If you have a Spark Prepaid connection that operates on our WCDMA 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 Prepaid Services on our WCDMA Network.
  2. This agreement applies from 1 May 2009.
  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 Prepaid Plan and any specific terms and conditions relating to the Services you use, like mobile data services. If there is any conflict or inconsistency between:
    • (a) the terms and conditions set out in this agreement; and
    • (b) the terms and conditions relating to your Prepaid Plan or the specific terms and conditions relating to the Services you use,

then the terms and conditions referred to in paragraph (b) will prevail.

2. Interpretation

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

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

3. Commencement of agreement

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

4. Provision of Services

  1. Spark Prepaid Services allow you to make and receive most local, national and international calls (when within our WCDMA 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 WCDMA 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:
    • comply with all your obligations in this agreement;
    • 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;
    • 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;
    • do not use your Mobile Phone or the Services in a way that is abusive or offensive or for an illegal, immoral or fraudulent purpose;
    • do not use your Mobile Phone or the Services in a way that interferes with any other person's use of the Services;
    • do 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;
    • use only Mobile Phones and accessories approved for use with our WCDMA Network and which comply with all relevant legislation and regulations;
    • do not connect a SIM you have obtained from us to any other telecommunications network.
    • follow the instructions and guidelines (including any Fair Use Policies) we give you about the use of the Services and your Mobile Phone;
    • do not do anything or introduce anything (including any virus) that may damage or harm our Network or equipment or any third party's network or equipment
    • authorise us to conduct a credit check on you from time to time when we consider it appropriate;
    • do not use your Mobile Phone or the Services for voice over internet protocol or messaging over internet protocol;
    • do not sell or otherwise make the Services available to others or commercially exploit the Services or any Content in any way;
    • agree that using the Services does not give you any rights in any part of our Network;
    • never interfere with any part of our Network unless you have been authorised in writing by us to do so;
    • 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;
    • 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;
    • 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
    • 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:
    • you will need to contact that other Mobile Service Provider;
    • you will be responsible for taking all necessary steps to Port the mobile phone number, other than our obligations under the LMNP Terms; and
    • you will be responsible for all costs associated with Porting the mobile phone number.
  4. If you have not Ported the mobile phone number allocated to you prior to either the termination of this agreement, your Spark Prepaid Account being deactivated or your access to the Services being disconnected, we may reallocate that number to another customer.

6. Wireless data and content

  1. If the Services provide links to third party sites, we are in no way responsible for such links or for the Content on any such sites. We have included these links for convenience only and this inclusion is in no way an endorsement of the applicable site or third party.
  2. If the Services allow you to access Content that originates from you or third parties, we may monitor any Content made available by you or any third party 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:
    • ensuring that any Content you access or make available through using the Services will be private or secure or free from viruses or other harmful things;
    • 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;
    • 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;
    • any corruption or loss of Content stored on, or transmitted over, our Network;
    • any delay in your receipt of Content you select for transmission to your Mobile Phone; or
    • fixing any faults in your Mobile Phone or SIM as a result of you accessing Content.
  4. Unwanted programs or Content may be downloaded from the internet without your knowledge, which may give unauthorised persons access to your Mobile Phone. 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 comes with a new PUK1 Code, if you wish to continue using the Services.
  4. You must inform us immediately if your Mobile Phone or the SIM supplied to you is lost, stolen or damaged. You will remain liable for all Charges incurred in relation to the use of your Mobile Phone or the SIM up to the time you inform us that your Mobile Phone or SIM is lost or stolen, whether the Charges have been incurred by you or someone else. If your Mobile Phone is lost, stolen, damaged or destroyed, we will have no obligation to make a refund to you for the credit left on your Spark Prepaid Account and you will need to purchase a new Mobile Phone and/or SIM if you wish to continue using the Services.
  5. If equipment, including your Mobile Phone and SIM, supplied to you by someone else does not work properly, you need to contact the relevant equipment supplier or manufacturer, rather than us, about the problem. We are in no way responsible if this equipment supplied by someone other than us is damaged as a result of the unauthorised use on our Network, or if it does not work on our Network. We are under no obligation to take any action so you can access the Services using this equipment.
  6. Any responsibilities we may have for a Mobile Phone or other equipment that you buy directly from us will be covered by a separate warranty or sales agreement for that Mobile Phone or other equipment.
  7. You must pay the purchase price of any Mobile Phone or other equipment you buy from us. We will continue to own the Mobile Phone or other equipment until you have paid for it in full. The Mobile Phone or other equipment will be at your risk from the time it is received by you.

8. Charges and your account

  1. In order to use the Services you will need to have a Spark Prepaid Account which is in credit. As Charges are incurred they will be deducted from the credit balance of your Spark Prepaid Account. You can add additional credit to your Spark Prepaid Account by buying and registering a Spark Prepaid Service card or voucher or by using one of the other means of payment accepted by us from time to time. For more information on how to top up your Spark Prepaid Account please refer to the Spark Website or contact Spark Customer Services. No bill will be sent to you in relation to your use of Spark Prepaid Services.
  2. Each Spark Prepaid Service card or voucher has an expiry date printed on it and cannot be used after that date. We will not give refunds for any cards or vouchers not used by their expiry date. If you have a Spark Prepaid Service card or voucher which has not reached its expiry date and appears to be faulty, just fill in the complaint form available from any Spark retailer or by contacting Spark Customer Services. Send the form with the faulty Spark Prepaid Service card or voucher to Spark, FreePost No. 4083, Private Bag 92028, Auckland. We will check the card or voucher and, if it is faulty, send you a replacement card or voucher.
  3. The Charges for calls made from your Mobile Phone are set out in your Prepaid Plan. Generally, there is a minimum one minute charge for each call and after the first minute calls are charged either per second or are rounded up and charged either per second or are rounded up and charged by the minute, depending on your Prepaid Plan. Please see your Prepaid Plan for more information about Charges for calls. The Charges for our other Services are set out on the Spark Website and are also available by contacting Spark Customer Services.
  4. We may change our Charges from time to time and will notify you of any changes in accordance with clause 14.
  5. 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.
  6. If the credit balance on your Spark Prepaid Account is used up while you are on a call, the call will be automatically disconnected. We will not be liable for calls being disconnected after your credit has been used up.
  7. If you have no credit on your Spark Prepaid Account you will not be able to make any outgoing calls (except to emergency services on 111 or to Spark Customer Services) or use any other Services that would incur a Charge.
  8. Once you add credit to your Spark Prepaid Account you will need to use that credit within a period of 12 months. Any credit not used within 12 months will expire and you will need to add additional credit in order to use the Services. We will not give you a refund for any credit that expires.
  9. You must add credit to your Spark Prepaid Account at least once every 12 months, otherwise your Spark Prepaid Account will be deactivated. If this happens, clause 10.2 will apply.
  10. If you get a new mobile telephone number or SIM you may need a new Spark Prepaid Account for that number or SIM. Credit may not be transferred from one Spark Prepaid Account or SIM to another Spark Prepaid Account or SIM.

9. Withholding, suspending or restricting services

  1. We may withhold, suspend or restrict your use of any or all of the Services or disconnect you from the Network without warning if:
    • you or anyone who uses your Mobile Phone or SIM does not comply with the terms and conditions of this agreement (including the provisions of clause 4.6) or any other agreement with us, including any terms and conditions relating to Additional Services;
    • you or anyone who uses your Mobile Phone or SIM damages our Network or puts our Network at risk;
    • you harass, abuse or threaten our staff; or
    • you notify us that your Mobile Phone or SIM has been lost or stolen.
  2. When we withhold, suspend, restrict or disconnect a Service for the reasons set out in clause 9.1 above, you may 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 Services, including Additional Services, on giving reasonable notice.

10. Giving up or ending services

  1. You may end this agreement at any time for any reason by:
    • simply ceasing to add credit to your Spark Prepaid Account at least once every 12 months (see clause 8.9 above);
    • contacting Spark Customer Services;
    • upgrading to one of our Spark Postpaid plans; or
    • Porting your mobile phone number to another Mobile Service Provider.
  2. If this agreement ends for one of the reasons in clause 10.1:
    • any unused Spark Prepaid Service cards or vouchers you have will still expire on their expiry date;
    • any unused credit on your Spark Prepaid Account will lapse;
    • any names, numbers and other information stored on your SIM may be lost; and
    • unless we agree otherwise (for example, if you have transferred to another Spark mobile call plan covered by another agreement with us) or unless it has been Ported prior to giving up the Services, any mobile phone number allocated for you to use under this agreement will no longer be available to you.
  3. You may temporarily or permanently give up any Additional Service by calling Spark Customer Services.
  4. If you end this agreement or give up any Service and later want it reconnected, you may have to pay a reconnection charge and purchase a new SIM.
  5. We may decide to stop providing any 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.
  6. Ending this agreement does not affect any rights and responsibilities which are intended to continue or come into force afterwards.

11. Compensation and Liability

  1. 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 contribute to your expenses by sending you Spark Prepaid Service cards or vouchers, or by adding credit to your Spark Prepaid Account, to the value we consider appropriate in the circumstances. For us to consider your claim, you must tell us within one month after the relevant Service is affected. Spark Prepaid Service cards and vouchers and credits are not 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 are they available where you have not tried to minimise your loss.
  2. 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 11.1 sets out your ability to claim compensation from us. Subject to clause 11.2 (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:
    • us and every other Spark Company;
    • network operators other than us whose networks are connected to each other and to our Network;
    • all companies directly or indirectly owned, partly owned or controlled by any of the companies listed above;
    • all officers, employees, contractors and agents of all the companies listed above; and
    • 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.
  4. If for any reason the exclusion in clause 11.3 does not apply, then the maximum combined amount all the people listed in clause 11.3 (together) will have to pay to you and anyone claiming through you (together) in respect of claims in connection with this agreement is:
    • $5,000 for any one event or circumstance or series of related events or circumstances; and
    • $10,000 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 11.2 for more information.

12. Force Majeure

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 circumstance 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.

13. Information about you

  1. While you have an agreement with any Spark Company, you agree that we and other Spark Companies may collect information about you. The information may be obtained from you, from others, or generated within our Network when you or anyone else uses the Services or the services of any service provider approved by us. You may decide whether to provide any information any of us request from you. However, if you do not provide it, we and other Spark Companies may not be able to provide services to you. You may ask to see information any Spark Company holds about you and ask for any details that are wrong to be corrected.
  2. We, other Spark Companies and, to the extent appropriate, any service providers approved by us, including service providers providing directory listing and directory assistance services, may hold information about you and share it to the extent appropriate with each other, with Spark employees, contractors and agents and any approved service provider and with credit reference and debt collection agencies. This enables us, other Spark Companies, 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.
  4. We, and other Spark Companies may:
    • share with other network operators the mobile phone numbers allocated to you and any other information (not including your name and address) needed to enable you to make and receive calls through their networks; and
    • share, to the extent appropriate, your name, address and the mobile phone numbers allocated to you with any person (except other network operators) using services provided by any of us or any service provider approved by us for providing directory assistance and directory listing services. This information may also be used or accessed by us or any such approved service provider in or from any directories and other publicly available accessible publications and databases.
  5. You may prefer to restrict access to your name, address and mobile phone numbers allocated to you. Please contact Spark Customer Services if you want to know about the ways you can do this.
  6. We may occasionally monitor telephone calls between customers and our personnel so as to help train our personnel to provide better customer service. Any information we collect by doing this will be used in strict compliance with all applicable privacy laws.
  7. You must contact Spark Customer Services as soon as possible about any change to your name, address or any other details you have provided to us

14. Changing these terms

  1. 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 11.3.
  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 detrimental effect on you. In all other cases we will try to give you one months' 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.

15. Sending notices

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

16. Meeting our responsibilities through agents and service providers

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

17. Transferring our responsibilities

We may transfer to someone else all or any part of our side of the agreement you have with us.

18. Severability

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

19. Waiver

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

20. Governing Law

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

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

1. Our agreement

  1. If you have a Spark Prepaid connection that operates on our WCDMA 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 Prepaid Services on our WCDMA Network.
  2. This agreement applies from 1 May 2009.
  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 Prepaid Plan and any specific terms and conditions relating to the Services you use, like mobile data services. If there is any conflict or inconsistency between:
    • (a) the terms and conditions set out in this agreement; and
    • (b) the terms and conditions relating to your Prepaid Plan or the specific terms and conditions relating to the Services you use,

then the terms and conditions referred to in paragraph (b) will prevail.

2. Interpretation

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

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

3. Commencement of agreement

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

4. Provision of Services

  1. Spark Prepaid Services allow you to make and receive most local, national and international calls (when within our WCDMA 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 WCDMA 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:
    • comply with all your obligations in this agreement;
    • 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;
    • 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;
    • do not use your Mobile Phone or the Services in a way that is abusive or offensive or for an illegal, immoral or fraudulent purpose;
    • do not use your Mobile Phone or the Services in a way that interferes with any other person's use of the Services;
    • do 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;
    • use only Mobile Phones and accessories approved for use with our WCDMA Network and which comply with all relevant legislation and regulations;
    • do not connect a SIM you have obtained from us to any other telecommunications network.
    • follow the instructions and guidelines (including any Fair Use Policies) we give you about the use of the Services and your Mobile Phone;
    • do not do anything or introduce anything (including any virus) that may damage or harm our Network or equipment or any third party's network or equipment
    • authorise us to conduct a credit check on you from time to time when we consider it appropriate;
    • do not use your Mobile Phone or the Services for voice over internet protocol or messaging over internet protocol;
    • do not sell or otherwise make the Services available to others or commercially exploit the Services or any Content in any way;
    • agree that using the Services does not give you any rights in any part of our Network;
    • never interfere with any part of our Network unless you have been authorised in writing by us to do so;
    • 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;
    • 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;
    • 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
    • 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:
    • you will need to contact that other Mobile Service Provider;
    • you will be responsible for taking all necessary steps to Port the mobile phone number, other than our obligations under the LMNP Terms; and
    • you will be responsible for all costs associated with Porting the mobile phone number.
  4. If you have not Ported the mobile phone number allocated to you prior to either the termination of this agreement, your Spark Prepaid Account being deactivated or your access to the Services being disconnected, we may reallocate that number to another customer.

6. Wireless data and content

  1. If the Services provide links to third party sites, we are in no way responsible for such links or for the Content on any such sites. We have included these links for convenience only and this inclusion is in no way an endorsement of the applicable site or third party.
  2. If the Services allow you to access Content that originates from you or third parties, we may monitor any Content made available by you or any third party 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:
    • ensuring that any Content you access or make available through using the Services will be private or secure or free from viruses or other harmful things;
    • 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;
    • 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;
    • any corruption or loss of Content stored on, or transmitted over, our Network;
    • any delay in your receipt of Content you select for transmission to your Mobile Phone; or
    • fixing any faults in your Mobile Phone or SIM as a result of you accessing Content.
  4. Unwanted programs or Content may be downloaded from the internet without your knowledge, which may give unauthorised persons access to your Mobile Phone. 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 comes with a new PUK1 Code, if you wish to continue using the Services.
  4. You must inform us immediately if your Mobile Phone or the SIM supplied to you is lost, stolen or damaged. You will remain liable for all Charges incurred in relation to the use of your Mobile Phone or the SIM up to the time you inform us that your Mobile Phone or SIM is lost or stolen, whether the Charges have been incurred by you or someone else. If your Mobile Phone is lost, stolen, damaged or destroyed, we will have no obligation to make a refund to you for the credit left on your Spark Prepaid Account and you will need to purchase a new Mobile Phone and/or SIM if you wish to continue using the Services.
  5. If equipment, including your Mobile Phone and SIM, supplied to you by someone else does not work properly, you need to contact the relevant equipment supplier or manufacturer, rather than us, about the problem. We are in no way responsible if this equipment supplied by someone other than us is damaged as a result of the unauthorised use on our Network, or if it does not work on our Network. We are under no obligation to take any action so you can access the Services using this equipment.
  6. Any responsibilities we may have for a Mobile Phone or other equipment that you buy directly from us will be covered by a separate warranty or sales agreement for that Mobile Phone or other equipment.
  7. You must pay the purchase price of any Mobile Phone or other equipment you buy from us. We will continue to own the Mobile Phone or other equipment until you have paid for it in full. The Mobile Phone or other equipment will be at your risk from the time it is received by you.

8. Charges and your account

  1. In order to use the Services you will need to have a Spark Prepaid Account which is in credit. As Charges are incurred they will be deducted from the credit balance of your Spark Prepaid Account. You can add additional credit to your Spark Prepaid Account by buying and registering a Spark Prepaid Service card or voucher or by using one of the other means of payment accepted by us from time to time. For more information on how to top up your Spark Prepaid Account please refer to the Spark Website or contact Spark Customer Services. No bill will be sent to you in relation to your use of Spark Prepaid Services.
  2. Each Spark Prepaid Service card or voucher has an expiry date printed on it and cannot be used after that date. We will not give refunds for any cards or vouchers not used by their expiry date. If you have a Spark Prepaid Service card or voucher which has not reached its expiry date and appears to be faulty, just fill in the complaint form available from any Spark retailer or by contacting Spark Customer Services. Send the form with the faulty Spark Prepaid Service card or voucher to Spark, FreePost No. 4083, Private Bag 92028, Auckland. We will check the card or voucher and, if it is faulty, send you a replacement card or voucher.
  3. The Charges for calls made from your Mobile Phone are set out in your Prepaid Plan. Generally, there is a minimum one minute charge for each call and after the first minute calls are charged either per second or are rounded up and charged either per second or are rounded up and charged by the minute, depending on your Prepaid Plan. Please see your Prepaid Plan for more information about Charges for calls. The Charges for our other Services are set out on the Spark Website and are also available by contacting Spark Customer Services.
  4. We may change our Charges from time to time and will notify you of any changes in accordance with clause 14.
  5. 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.
  6. If the credit balance on your Spark Prepaid Account is used up while you are on a call, the call will be automatically disconnected. We will not be liable for calls being disconnected after your credit has been used up.
  7. If you have no credit on your Spark Prepaid Account you will not be able to make any outgoing calls (except to emergency services on 111 or to Spark Customer Services) or use any other Services that would incur a Charge.
  8. Once you add credit to your Spark Prepaid Account you will need to use that credit within a period of 12 months. Any credit not used within 12 months will expire and you will need to add additional credit in order to use the Services. We will not give you a refund for any credit that expires.
  9. You must add credit to your Spark Prepaid Account at least once every 12 months, otherwise your Spark Prepaid Account will be deactivated. If this happens, clause 10.2 will apply.
  10. If you get a new mobile telephone number or SIM you may need a new Spark Prepaid Account for that number or SIM. Credit may not be transferred from one Spark Prepaid Account or SIM to another Spark Prepaid Account or SIM.

9. Withholding, suspending or restricting services

  1. We may withhold, suspend or restrict your use of any or all of the Services or disconnect you from the Network without warning if:
    • you or anyone who uses your Mobile Phone or SIM does not comply with the terms and conditions of this agreement (including the provisions of clause 4.6) or any other agreement with us, including any terms and conditions relating to Additional Services;
    • you or anyone who uses your Mobile Phone or SIM damages our Network or puts our Network at risk;
    • you harass, abuse or threaten our staff; or
    • you notify us that your Mobile Phone or SIM has been lost or stolen.
  2. When we withhold, suspend, restrict or disconnect a Service for the reasons set out in clause 9.1 above, you may 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 Services, including Additional Services, on giving reasonable notice.

10. Giving up or ending services

  1. You may end this agreement at any time for any reason by:
    • simply ceasing to add credit to your Spark Prepaid Account at least once every 12 months (see clause 8.9 above);
    • contacting Spark Customer Services;
    • upgrading to one of our Spark Postpaid plans; or
    • Porting your mobile phone number to another Mobile Service Provider.
  2. If this agreement ends for one of the reasons in clause 10.1:
    • any unused Spark Prepaid Service cards or vouchers you have will still expire on their expiry date;
    • any unused credit on your Spark Prepaid Account will lapse;
    • any names, numbers and other information stored on your SIM may be lost; and
    • unless we agree otherwise (for example, if you have transferred to another Spark mobile call plan covered by another agreement with us) or unless it has been Ported prior to giving up the Services, any mobile phone number allocated for you to use under this agreement will no longer be available to you.
  3. You may temporarily or permanently give up any Additional Service by calling Spark Customer Services.
  4. If you end this agreement or give up any Service and later want it reconnected, you may have to pay a reconnection charge and purchase a new SIM.
  5. We may decide to stop providing any 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.
  6. Ending this agreement does not affect any rights and responsibilities which are intended to continue or come into force afterwards.

11. Compensation and Liability

  1. 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 contribute to your expenses by sending you Spark Prepaid Service cards or vouchers, or by adding credit to your Spark Prepaid Account, to the value we consider appropriate in the circumstances. For us to consider your claim, you must tell us within one month after the relevant Service is affected. Spark Prepaid Service cards and vouchers and credits are not 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 are they available where you have not tried to minimise your loss.
  2. 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 11.1 sets out your ability to claim compensation from us. Subject to clause 11.2 (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:
    • us and every other Spark Company;
    • network operators other than us whose networks are connected to each other and to our Network;
    • all companies directly or indirectly owned, partly owned or controlled by any of the companies listed above;
    • all officers, employees, contractors and agents of all the companies listed above; and
    • 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.
  4. If for any reason the exclusion in clause 11.3 does not apply, then the maximum combined amount all the people listed in clause 11.3 (together) will have to pay to you and anyone claiming through you (together) in respect of claims in connection with this agreement is:
    • $5,000 for any one event or circumstance or series of related events or circumstances; and
    • $10,000 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 11.2 for more information.

12. Force Majeure

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 circumstance 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.

13. Information about you

  1. While you have an agreement with any Spark Company, you agree that we and other Spark Companies may collect information about you. The information may be obtained from you, from others, or generated within our Network when you or anyone else uses the Services or the services of any service provider approved by us. You may decide whether to provide any information any of us request from you. However, if you do not provide it, we and other Spark Companies may not be able to provide services to you. You may ask to see information any Spark Company holds about you and ask for any details that are wrong to be corrected.
  2. We, other Spark Companies and, to the extent appropriate, any service providers approved by us, including service providers providing directory listing and directory assistance services, may hold information about you and share it to the extent appropriate with each other, with Spark employees, contractors and agents and any approved service provider and with credit reference and debt collection agencies. This enables us, other Spark Companies, 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.
  4. We, and other Spark Companies may:
    • share with other network operators the mobile phone numbers allocated to you and any other information (not including your name and address) needed to enable you to make and receive calls through their networks; and
    • share, to the extent appropriate, your name, address and the mobile phone numbers allocated to you with any person (except other network operators) using services provided by any of us or any service provider approved by us for providing directory assistance and directory listing services. This information may also be used or accessed by us or any such approved service provider in or from any directories and other publicly available accessible publications and databases.
  5. You may prefer to restrict access to your name, address and mobile phone numbers allocated to you. Please contact Spark Customer Services if you want to know about the ways you can do this.
  6. We may occasionally monitor telephone calls between customers and our personnel so as to help train our personnel to provide better customer service. Any information we collect by doing this will be used in strict compliance with all applicable privacy laws.
  7. You must contact Spark Customer Services as soon as possible about any change to your name, address or any other details you have provided to us

14. Changing these terms

  1. 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 11.3.
  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 detrimental effect on you. In all other cases we will try to give you one months' 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.

15. Sending notices

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

16. Meeting our responsibilities through agents and service providers

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

17. Transferring our responsibilities

We may transfer to someone else all or any part of our side of the agreement you have with us.

18. Severability

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

19. Waiver

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

20. Governing Law

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