From 12 November 2016, a new law will protect small businesses from unfair terms in standard form contracts.
The law will apply to a standard form contract entered into or renewed on or after 12 November 2016, where:
- it is for the supply of goods or services or the sale or grant of an interest in land
- at least one of the parties is a small business (employs less than 20 people, including casual employees employed on a regular and systematic basis)
- the upfront price payable under the contract is no more than $300 000 or $1 million if the contract is for more than 12 months.
If a contract is varied on or after 12 November 2016, the law will apply to the varied terms.
A standard form contract is one that has been prepared by one party to the contract and where the other party has little or no opportunity to negotiate the terms – that is, it is offered on a ‘take it or leave it’ basis.
The law sets out examples of terms that may be unfair, including:
- terms that enable one party (but not another) to avoid or limit their obligations under the contract
- terms that enable one party (but not another) to terminate the contract
- terms that penalise one party (but not another) for breaching or terminating the contract
- terms that enable one party (but not another) to vary the terms of the contract.
Ultimately, only a court or tribunal (not the ACCC) can decide that a term is unfair.
Importantly, terms that set the upfront price payable under the contract are not covered by the law.
For further information about how a court determines whether a term is unfair, and examples of unfair terms, see: Determining whether a contract term is unfair.
If a court or tribunal finds that a term is ‘unfair’, the term will be void – this means it is not binding on the parties. The rest of the contract will continue to bind the parties to the extent it is capable of operating without the unfair term.
While most standard form contracts and contractual terms will be covered by the unfair contract terms law, there are a number of exceptions.
- Contracts entered into before 12 November 2016 (unless renewed on or after this date)
- Shipping contracts
- Constitutions of companies, managed investment schemes or other kinds of bodies
- Certain insurance contracts (e.g. car insurance)
- Contracts in sectors exempted by the Minister – no sectors are currently exempt.
- Terms that define the main subject matter of the contract
- Terms that set the upfront price payable
- Terms that are required or expressly permitted by a law of the Commonwealth, or a state or a territory (e.g. permitted under the Franchising Code or another prescribed industry code).
- Ask the other party to remove the term or amend it so it is no longer unfair
- Talk to a lawyer
- Contact your local state or territory consumer protection agency
- Contact the ACCC.
For unfair terms in relation to financial products and services, contact ASIC.