> Consumer advice  > Smart shopping  > Unsolicited supplies and consumer agreements

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• What are unsolicited supplies?
• Providing unsolicited goods or services
• Receiving unsolicited goods and services
• Examples of unsolicited goods and services
• Unsolicited credit or debit cards
• What is an unsolicited consumer agreement?
• Permitted hours for contacting you
• If a trader calls on you (not telephone)
• If a trader telephones or calls on you
• Your cooling off / termination rights
• Extended cooling off period
• What happens if you cool off or terminate
• Dealing with goods/services after you cool off

What are unsolicited supplies?

‘When goods or services are supplied to you which you have not agreed to purchase or receive, this is called ‘unsolicited supply'.

It is important to note that you are not required to pay for goods or services you have not ordered.

Providing unsolicited goods or services

Can businesses provide you with goods or services if you haven't requested them?

Businesses often provide goods or services to consumers as a way of exposing consumers to the brand, product or service. Examples of this are free product samples sent in the mail, or door knocking households and offering to clean their windows as part of a free product demonstration. In these cases there is no expectation that the consumer will have to pay for the goods or services.

However, it is an offence for businesses to demand payment from you for unsolicited goods or services.

For example, a business must not send you books or DVDs that you have not requested and then demand payment for them.

If a business invoices you for unsolicited goods or services supplied then the invoice must clearly state the following warning: “This is not a bill. You are not required to pay any money”. This warning must be the most prominent text in the document.

Receiving unsolicited goods and services

What to do if you receive unsolicited goods or services

• You are not required to pay for the goods or services.
• The business may recover the goods within three months (called the “recovery period”). However, if you advise the business in writing that you do not want the goods, then the recovery period is reduced to one month. You cannot unreasonably refuse to allow the supplier to collect the goods during the recovery period.
• Note that you may be liable to pay compensation if you wilfully damage the goods during the recovery period.
• If the supplier does not collect the unsolicited goods within the recovery period you can keep the goods with no obligation to pay.
• However, you are not entitled to keep the goods if the goods were not intended for you (e.g. the packaging was clearly addressed to another person).
• You are not liable for any loss or damage resulting from a supply of unsolicited services.

Examples of unsolicited goods and services

Examples

• Michelle arranges for a car repairer to replace the muffler on her car. When Michelle returns to collect the car the repairer says the tyres and brake pads also needed replacing, so he made the replacements and added an extra $1200 to the bill. The work done in addition to replacing the muffler would be considered unsolicited and Michelle is not liable to make any payment for this. If the repairer had phoned Michelle for authorisation to replace the tyres and brake pads and she agreed, then these components would not have been unsolicited.
• John hires a tradesperson to replace rotting timber beams supporting a pergola. The tradesperson also notices John's shed door has wood-rot so he replaces the door and adds an extra $250 to the invoice. John is angry as he planned to demolish the shed anyway. Replacing the shed door was outside the scope of the original agreement and is therefore unsolicited, and John is not liable to make any payment for this.
• Peter takes his laptop to a repairer only to have the hard drive replaced. When Peter returns to repair shop the repairer explains that he also repaired the CD drive and added extra memory capacity because he said the computer would work better and faster with the extra memory. He added $150 to the repair bill for this extra work. The work in addition to replacing the hard drive is unsolicited.

Unsolicited credit or debit cards

A business must not send you an unsolicited debit card or credit card (including store-branded credit cards and store account cards) unless:

• You have requested the card in writing the card; or
• The card is a replacement, renewal or substitution for a card previously issued as requested by the cardholder.

An item is considered to be a credit card if it is intended to be used to obtain cash, goods or services on credit (e.g. store-branded credit cards and store account cards).

An item is considered to be a debit card if it is intended to be used to access an account held by the consumer for the purpose of withdrawing or depositing cash or obtaining goods or services.

If you have a credit card, a business must not enable the card to also be used as a debit card, or vice-versa, unless you specifically request this in writing.

More information about unsolicited credit and debit cards is available from the Australian Securities and Investments Commission at www.asic.gov.au

What is an unsolicited consumer agreement?

An unsolicited agreement occurs when:

• A supplier/salesperson approaches or telephones you without you having invited this contact; and
• Negotiations take place over the phone, or in person at a location other than the supplier's premises; and
• The total value of the any agreement made as a result of the contact is more than $100, or the value was not ascertainable at the time the agreement was made.

The law gives you certain protections when you agree to buy something from a seller who uses unsolicited marketing approaches. One of the key protections is a cooling-off period of 10 business days during which you can reconsider the purchase.

Examples of unsolicited consumer agreements

Some typical examples of unsolicited approaches include when a salesperson:

• Knocks on your door offering to sell you a product or service, or invites you to switch to a different service provider.
• Telephones you offering to sell products or services.
• Approaches you in the common area of a shopping centre and offers to sell you products or services.
• Leaves a missed call message on your answering machine for you to respond.

The following situations may also be considered unsolicited approaches:

• If you fill out an entry form to a competition that is sponsored by a supplier, and one of the conditions of entry is that you agree to be contacted by the supplier about new product information. In this case, any subsequent contact with you from a supplier who is seeking to sell you goods or services would still be considered unsolicited.
• If you ask a trader to provide a quote (such as measuring for blinds). Again, you have not invited the trader to enter into negotiations to sell you something, so if the trader does attempt to negotiate with you at the time of providing a quote, or later contacts you to negotiate a deal, then a resulting agreement would be considered an unsolicited consumer agreement. But, if the trader leaves a quote with you for deliberation and you then approach the trader to accept the quote or negotiate different terms, then this would not be considered an unsolicited consumer agreement.

Permitted hours for contacting you

Telemarketing
Telemarketing calls and fax marketing cannot be made:

• On a Sunday or a public holiday
• Weekdays - before 9 am or after 8 pm.
• Saturday - before 9 am or after 5 pm.

Calling on you (which does not include telephone)

A salesperson must not call on you on:

• Sunday or a public holiday.
• Weekdays - before 9am or after 6pm.
• Saturday - before 9am or after 5pm.

However, a salesperson may visit you at any time with your consent.

If a trader calls on you (not telephone)

If a salesperson approaches you, other than by telephone, then they must:

• Clearly explain upfront the purpose of the visit and provide identification (a name and address).
• Explain that they are obliged to leave immediately if you ask them to do so. (Note: If you ask them to leave they must not contact you again for at least 30 days unless they return representing a different supplier).
• Inform you about your cooling off rights.

If a trader telephones or calls on you

The contract
If you agree to buy something from a telemarketer or a salesperson who contacts you, you must be given a written copy of the contract:

• As soon as it has been signed, for face-to-face sales.
• Within five business days (or longer you agree), for agreements negotiated over the telephone.

The contract must be:

• Expressed in plain language, legible and clear.
• Printed (although any changes may be handwritten) and signed by both parties.

The contract must clearly state:

• Your cooling off rights (right of termination);
• The full terms of the agreement;
• The total price payable, or how this will be calculated; and
• Any postal or delivery charges.
• Contact details for the business

Cooling off

Salespeople must inform you of your cooling off rights. They must also give you a form that you may use if you wish to terminate the contract (cool-off).
Waivers
A salesperson must not encourage you to waive your rights. Waivers are not permitted under the law and would have no effect in any case.

Your cooling off / termination rights

By law, you have 10 business days to reconsider the contract (unsolicited consumer agreement). During this time you can cancel the contract without penalty. This is called the ‘cooling off' period.

If the agreement was negotiated over the phone, the cooling off period begins on the first business day after you received the contract.

If the agreement was not negotiated over the phone, the cooling off period begins on the first business day after the contract was made (signed by both parties to the contract).

During the 10 business day cooling off period, the trader must not supply any goods or services or accept any payment from you. If the trader does supply goods or services during the cooling off period then these would be considered unsolicited supplies.


Click here to download Cancellation notice – Unsolicited consumer agreement form

Extended cooling off period

You may terminate an agreement up to 3 months after it is made (or after the contract is received, if the agreement is by phone) if the salesperson:

• Visited you outside of the permitted selling hours;
• Did not disclose the purpose of the visit;
• Did not produce identification; or
• Did not leave the premises upon request.

The period is extended to six months if a salesperson:

• Did not provide your with information about the cooling off period; or
• Was in breach of other requirements for unsolicited consumer agreements (such as failing to provide a written copy of the agreement or not including required information in the written agreement) or;
• Supplied goods or services during the cooling off period.

You may terminate an agreement orally or in writing. The termination date is considered to be the date on which notice of termination was given or sent/posted.

What happens if you cool off or terminate

If you notify the trader that you wish to cancel the contact, then the contract is cancelled as of the date you gave that notice. The notice is effective even if:

• Written notice has been given but the trader has not received it.
• Goods or services supplied to you have been wholly or partly consumed/used.

If you cancel a contract (unsolicited consumer agreement) then any related contract is also cancelled.

For example:

You agree to buy a $900 washing machine from a door-to-door trader, and also sign a separate contract for servicing the washing machine, costing $80. This second contract is not covered by the cooling off provisions but if you cool off on the washing machine purchase then the service contract is also cancelled.

For goods bought on credit or finance, it is the supplier's responsibility to contact the credit provider and arrange for cancellation.




If you cool off, the supplier must promptly return or refund to you any money paid under the contract or a related contract.

Dealing with goods/services after you cool off

• You must, within a reasonable time, return any goods that have not been consumed or tell the supplier where to collect them.
• If you have not taken reasonable care of the goods, the supplier can seek compensation for depreciated value.
• You do not have to pay compensation for normal use of the goods or circumstances beyond your control.
• If the supplier does not collect the goods within 30 days of termination, then you can keep them.
• If you cancel the contract after the cooling off period and a service has already been provided, you may have to pay for the service. Obviously, the service can't be “undone” once it has been provided.

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