Cardtronics Australasia Pty Ltd

The Australian Competition and Consumer Commission has accepted a court enforceable undertaking from Cardtronics Australasia Pty Ltd regarding unfair contract terms in contracts governing Automatic Teller Machines (ATMs) deployed on the premises of small businesses. The relevant contract terms cover automatic contract renewal, unilateral fee increases and first right of refusal when renegotiating contracts. Unfair contract terms can be declared void under section 23 of the Australian Consumer Law.

The relevant conduct

• Cardtronics deploys non-bank ATMs on the premises of merchants, including merchants who are small businesses.
• From 12 November 2016, contracts entered into between Cardtronics and small businesses include terms that are likely to be unfair, namely terms that:
  • Automatically renew the contract for up to 6 years unless the merchant provides 6 months notice before the end of the contract;
    • Cardtronics was not required to provide notice when this deadline was approaching. Merchants had to keep track of this having signed contracts up to 5 years previously.
• Allow Cardtronics to unilaterally increase certain fees; and
• Provide Cardtronics with first right of refusal if merchants want to renegotiate contracts at expiry.

The relevant undertaking

• For all existing customers:
  • Cardtronics will provide written notice 5 months before the end of the contract;
  • Cardtronics will accept cancellation requests from the merchant up to 3 months from the end of the contract;
  • Merchants will be able to cancel contracts without penalty in response to increases in certain fees.
  • Cardtronics will not exercise its right of first refusal.
• All new contracts will have amended provisions so that they operate in a similar manner.