Unsolicited Consumer Agreements

What is an unsolicited consumer agreement?

The Australian Consumer Law (ACL) has introduced new rules around 'unsolicited consumer agreements'.

In simple terms, an unsolicited consumer agreement is an agreement between a business and a consumer, initiated by the business, for the supply of goods or services. Such agreements could be in the form of a telemarketing call, an uninvited personal visit or stopping a consumer in the shopping centre. These are often referred to as "cold calls".

An agreement is likely to be an 'unsolicited consumer agreement' if during the negotiations the price of the good/ service was not discussed, or if it was discussed it was agreed that the price was over $100 and either of the following happened:

  • the supplier or their representative cold called the consumer; or
  • the agreement resulted from negotiations made during a cold call or at a location other than the supplier's business premise.

For more information on and examples of unsolicited consumer agreements, see the Department of Commerce's website.  As is the case with all consumer rights, under the ACL you cannot require a consumer to waive their rights in relation to unsolicited consumer agreements.

Contacting consumers

Calling consumers at their home or business to sell goods or services

New rules about contacting consumers by telephone and by personal visit have also been introduced.

Businesses cannot cold call or send marketing faxes to consumers:

  • on Sundays or public holidays;
  • before 9am or after 8pm weekdays; and
  • before 9am or after 5pm on Saturdays.

It is important to remember that 'consumers' may also be other businesses.

Visiting consumers at their home or business to sell goods or services

Businesses cannot visit consumers without an appointment at their home or business to sell a good or service:

  • on Sundays or a public holidays;
  • before 9am or after 6pm on a weekday; and
  • before 9am or after 5pm on Saturdays.

Requirements when approaching consumers

There are certain rules  that must be followed when visiting consumers at their home or business during the allowed times. You must:  

  • explain why you are there;
  • show identification; and
  • tell the consumer that they can ask you to leave at any time.

Similarly, if a salesperson is engaged to sell products or services on behalf of the business, they must also provide the consumer with their details (name, business address, email address), show their identification and tell the consumer who they are representing. More information on the requirements that salespeople must follow can be found on the Department of Commerce website

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Unsolicited consumer agreement

I've made an unsolicited consumer agreement... now what?

When an unsolicited agreement is made with a consumer, there are rules that you must follow under the ACL in relation to the agreement and cooling off period.

Download the Checklist for contents of a 'unsolicited consumer agreement' (1-page PDF 100 KB)

The unsolicited document agreement

As the business owner or representative, you must give the consumer a copy of the written agreement either immediately when dealing face-to-face with the consumer or within five (5) business days if dealing with the consumer over the telephone.

There are also specific rules about the structure and content of the agreement, which must be:

  • written in plain and clear language;
  • printed; and
  • signed and dated by the consumer on the front page.

Changes to the agreement may be hand written, however any changes must be signed by the business owner/ representative and the consumer.

Use the check list below to determine whether your unsolicited consumer agreement contains the essential parts:

1. This statement on the front page of the document:

"Important Notice to the Consumer.

You have a right to cancel this agreement within 10 business days from and including the day after you signed or received this agreement.

Details about your additional rights to cancel this agreement are set out in the information attached to this agreement."

2. The full terms and conditions of the agreement:

  • The total price payable, or if a total cannot be specified information on how the price will be calculated.
  • Supplier's details (name, address, ABN, ACN, e-mail, fax or other).
  • A copy of a termination notice, should the consumer wish to terminate the agreement during the cooling off period. This notice must include the supplier's
    • name and physical business address (not a PO box);
    • ABN or ACN; and
    • fax number and email address (if applicable).
  • A statement about the consumer's right to terminate the agreement in the cooling off period

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Cooling off period

A compulsory minimum cooling off period applies to unsolicited consumer agreements. Some of the important things about the cooling off period and consumer rights include:

  • The cooling off period for an unsolicited agreement must be at least 10 business days;
  • The cooling off period for an agreement made in person starts on the first business day after the agreement was made;
  • The cooling off period for an agreement made over the telephone starts on the first business day after the consumer receives a copy of the agreement;
  • The business cannot request or accept payment for unsolicited goods or services during the cooling off period; and
  • The business cannot supply a good or service to a consumer during a cooling off period.

The Department of Commerce has more information on the cooling off period and consumer rights.

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It makes business sense to follow the rules

It is important that business owners and their employees follow the rules covering unsolicited consumer agreements. Failure to do so may extend the consumer's right to terminate the agreement by up to six (6) months. For example, a consumer has the right to terminate an unsolicited consumer agreement up to three (3) months after it was made, if the business or its representative:

  • visited or called outside the hours allowed;
  • did not disclose the purpose of the visit; or
  • did not leave when requested by the consumer.

The consumer's right to terminate an unsolicited agreement will be extended to six (6) months after the agreement was made, if the business or its representative:

  • did not provide information about the consumer's right to terminate during the cooling off period;
  • gave the consumer a agreement that did not include all essential parts.
  • supplied goods or services during the cooling off period; or
  • requested or received payment during the cooling off period.

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