ATM provider Cardtronics has admitted that its subsidiary, DC Payments, offered contract terms with small business that may be unfair under the Australian Consumer Law.
Cardtronics has given a court-enforceable undertaking to the ACCC to change terms that may be unfair for businesses under existing contracts.
“Business contracts need to balance the rights of each party to ensure they aren’t unfair, as smaller firms may not always be in a strong negotiating position,” ACCC Deputy Chair Dr Michael Schaper said.
“We considered Cardtronics’ contract had several unfair terms, including automatic renewal for six years, unilateral increase of fees, and first right of refusal should businesses seek to change providers at the contract’s conclusion.”
Cardtronic has co-operated with the ACCC’s investigation, and undertaken not to enforce unfair terms for all existing merchants, some of whom entered contracts six years ago.
“This undertaking is a great outcome for Cardtronics’ customers, as the unfair contracts protections for small business only became effective in November 2016,” Dr Schaper said.
While Cardtronics contracts will continue to be automatically renewed, the minimum notice to cancel will be reduced from six months to three months and Cardtronics will provide written notice to customers five months before the end of the contract.
Previously, merchants had to keep track of automatic rollover dates more than five years after entering contracts.
Cardtronics must also provide written notice of any fee increase to customers and allow them to terminate the contract without penalty under a new contract term.
The undertaking is available at Cardtronics Australasia Pty Ltd
This outcome is part of a wider ACCC review of small business contracts in a range of industries. As part of this review, the ACCC has been engaging with a range of businesses to encourage compliance with the new unfair contract term provisions.
For more information, see Businesses remove unfair contract terms before new law.
The Australian Consumer Law allows a court to determine that a term of a standard form contract is unfair and therefore void, meaning that the contract is treated as if the term never existed.
If the term is declared void, the remainder of the contract continues to bind the parties to the extent that it can operate without the unfair term.
From 12 November 2016 the unfair contract terms provisions of the Australian Consumer Law were extended to cover standard form contracts involving small businesses.