Mastering Your Competition's Terms and Conditions
Usually terms and conditions will contain information about the competition, prize, the time and place of the competition, as well as who is eligible to enter. They will also contain a series of exclusion clauses to ensure that the Promoter of the competition escapes legal liability for many issues relating to the competition. These must be carefully structured to encompass the wide array of issues which can arise, but must not attempt to exclude liability for those which it is illegal to exclude. To explore this further, we will examine an example of Terms and Conditions from firstly a Game of Skill and then a Game of Chance.
- Game of Skill
Information on how to enter and other details contained within the website and/or form part of these conditions of entry. Participating in the Competition is deemed acceptance of these conditions of entry. Any entry not complying with these conditions of entry is invalid.
This operates as a liability exclusion clause, which makes the terms of acceptance clear.
Entry is open to residents of Australia. Over the age of 18 who hold a current Australian driver’s licence. Employees & their immediate families of the Promoter and its agencies, retailers and suppliers associated with the Competition are ineligible to enter.
This states who is able to enter and ensures that there is no conflict of interest or bias
The Competition commences at and all entries must be submitted, and received, by the Promoter online at the website no later than time of close. All times are (mention timezone) during (mention if daylight savings period or not). Entries received by the Promoter after close of competition date will not be included in the Competition.
This ensures that there is transparency in the execution of the promotion
To be able to participate in the Competition, the following must occur:
The entrant must i) condition one, e.g. submit a photo of…
The entrant must enter the required details requested on the entry form for the Competition.
This states the clear requirements for the partaking in the game of skill
The Promoter’s marketing team will upload the photograph on their website unless the entry is deemed inappropriate for the Competition by the Promoter.
This allows for the judge of the competition to eliminate entrants at his discretion.
The Promoter reserves the right to verify the validity of entries and reserves the right to disqualify any entrant for tampering with the entry process or for submitting an entry which is not in accordance with these conditions of entry.
This sets out the terms which ensure that there is fair play and allows for the power to remove entrants if these are breached.
The winner will be the entrant whose photograph of the grille sticker is the most creative as selected by (judge’s name) from the uploaded photos registered on address of competition on date and time of competition (timezone). The winner will be notified by telephone and in writing within (specify time) after the winner has been selected and the winners name will be published in (place of publication) on (date of publication).
This explains that the competition will be judged at discretion of the judge. It also states the means of notification and the time and place of the announcement to allow for transparency.
The winner will win (describe prize)
Specify if the prize excludes any additional accessories.
Describe the prize in detail.
The Promoter is unable to guarantee delivery to the winner within a set time frame, but will endeavour to deliver the vehicle to the winner within (specified time) of the winner being determined by the Promoter. The winner will be informed of the delivery status.
This clearly sets out the features of the car and allows for the possibility that the colour may change or car may be unavailable and the methods of dealing with these cases.
The prize is not transferable and cannot be taken as cash.
The prize value is correct at time of printing but no responsibility is accepted for any variation in the value of the prize.
This allows for the possibility of variation in the value of the prize and acts as an exclusion clause.
The prize depicted in all promotional materials is not necessarily the same as the actual prize and may have accessories featured which are not part of the actual prize.
This allows for variation in the features of the car and acts as an exclusion clause in the event that they do.
In accepting the prize, the winner acknowledges that the winner may incur ongoing costs associated with the prize which are the entire responsibility of the winner.
This serves as an exclusion clause in the case that the prize requires ongoing costs.
The prize will only be delivered in Australia. The prize must be registered in the name of the winner before the prize can be collected. Collection of the prize will be at the specified location nominated by the Promoter.
This acts as an exclusion clause – if the winner resides overseas then it will not be delivered.
Entries not completed in accordance with these conditions of entry or received after close of entry will not be considered. Incomplete entries will be disregarded. The Promoter’s decision in relation to any aspect of the Competition is final and binding on every person who enters. No correspondence will be entered into.
This provides a clear condition that the entries must complete and on time.
The use of any automated entry software or any other mechanical or electronic means that permits the entrant to automatically enter repeatedly is prohibited.
This provides a term to ensure fair play.
The winner is advised that tax implications may arise from the winning of the prize and the winner should seek independent financial advice prior to acceptance of the prize.
It is a condition of accepting the prize that the winner signs a legal release in a form to be determined by the Promoter.
This is a legal requirement which acts as an exclusion clause to escape liability.
The Promoter is neither responsible nor liable for any damage to the prize in transit in the delivery of the prize.
This acts as a liability exclusion clause.
This fulfils the disclosure requirements
If the prize remains unclaimed or forfeited through ineligibility or otherwise, a new winner will be chosen by (judge’s name). The new winner will be notified by telephone and in writing and the new winner’s name will be published in (place of publication) on (date of publication) within … days after the new winner has been selected.
This sets out the clear acceptance requirements
The Promoter is not liable for any loss or damage whatsoever which is suffered, including but not limited to indirect or consequential loss, or for personal injury suffered or sustained during the course of accepting or using the prize, except for any liability which cannot be excluded by law.
This acts as a liability exclusion clause. However, it must be noted that one cannot remove liability for engagement in illegal acts.
The Promoter’s decision is final and no correspondence will be entered into.
This puts the power and discretion in the hands of the promoter.
In the event that the prize is unavailable despite the Promoter’s reasonable endeavours to procure within Australia, the Promoter reserves the right to substitute a different prize of similar value.
This allows for variation in the prize to a reasonable degree.
The winner agrees to the use of the winner’s name, image and photograph/s for publicity and promotional purposes, without compensation, and agrees that the Promoter will own copyright in any such images and photograph/s and in all material incorporating the photograph/s.
This attempts to exclude the company of copyright and privacy liability
If for any reason the Competition is not capable of running as planned (whether caused by infection by computer virus, line drop out, bugs, tampering, unauthorised intervention, fraud, technical failures or any other cause beyond the control of the Promoter which corrupts or affects the administration, security, fairness or integrity of the Competition), the Promoter reserves the right in its sole discretion, (subject to any written direction given by a relevant regulatory authority), to cancel, terminate, modify or suspend the Competition.
This excludes liability in the case that there is a technical malfunction.
Entries are deemed to be received at the time of receipt into the Promoter’s database. The Promoter is not responsible for receipt of incorrect, inaccurate or incomplete information either caused by website users or by any of the equipment or programming associated or utilised in the Competition, or by any technical error that may occur in the course of administration of this competition. The Promoter assumes no responsibility for any error, omission, interruption, deletion, defect, delay in operation or transmission, communications line failure, theft or destruction or unauthorised access to or alteration of entries.
This provides for exclusion in liability in the case of various errors.
All information collected by the Promoter will become the property of the Promoter. Personal information supplied will be collected and utilised for awarding the prize and the Promoter may also use this information for improving goods and services and to contact entrants with future and special offers. By entering the Competition, each entrant agrees in addition to the above uses, that the Promoter may publish or cause to be published the winner's name and suburb in any media.
The Promoter of the Competition is … (ABN) trading as …, (address of Promoter)
Game of Chance
WIN A (PRIZE) COMPETITION
CONDITIONS OF ENTRY
1. The Promoter is … (ABN) of (address of Promoter). Telephone: ...
2. Information on how to enter, mechanics of entry and prizes form part of these Conditions of Entry. Entry into the promotion is deemed acceptance of these Conditions of Entry.
This operates as a liability exclusion clause, which makes the terms of acceptance clear.
3. The promotion commences at (time and date of the promotion).
4. Entry is open to any Australian resident aged 18 years or older. The directors, management and employees (and their immediate families) of the Promoter, related companies of the Promoter and agencies associated with this promotion and their related companies are ineligible to enter.
This makes it clear who is eligible to enter.
5. To enter this promotion, Entrants must, during the Promotion Period:
- visit the Domain page on Facebook (www.facebook.com/domain.com.au);
- 'like' the Domain Page. Entrants who have 'liked' the Domain Page will not be required to complete this step. For the avoidance of doubt, to 'like' in this context means to click on the ‘like’ icon on the Domain Page;
- access the promotional application made available on the landing page of the Domain Page; and
- follow the prompts of the Application in the manner required to submit the online entry form, including providing the Entrant's title, full name, residential address, contact telephone number and current and valid email address.
This sets out the requirements for entry.
6.Entrants who successfully submit the online entry form in the manner required in accordance with Condition 6 will gain one (1) Entry into the promotion. Limit of one (1) Entry per person permitted. Any subsequent Entry after the first valid Entry of an Entrant is received will be deemed invalid.
This sets out the requirements for entry and the power to deem any entrant who does not comply with these to be excluded.
7. Once an Entrant submits their Entry via the Application, the Entrant will be prompted as to whether or not they wish to gain a bonus entry into the promotion. To gain a bonus entry, Entrants must, during a Promotion Week :
- follow the prompts of the Application in the manner required to www.domain.com.au ;
- use the clues provided on the Domain Page to locate a ‘dummy’ listing on the Domain Website, which will have the prize pictured in the driveway; and
- click on the relevant link on the Domain Website where they will be re-directed to the Domain Page and prompted to re-enter their personal information in the manner required to submit the online entry form, including providing the Entrant’s title, full name, residential address, contact telephone number and current and valid email address,
CLICKING THE 'SHARE' BUTTON
8. Once an Entrant successfully submits their Entry via the Application, the Entrant will be prompted as to whether or not they wish to share the Domain Page with their Facebook friends. Whether or not an Entrant chooses to share the Application is an essential step of the Entrant’s Entry into this promotion.
9. Entrants acknowledge that the Entrant’s Facebook profile, wall and news feed may be updated upon entering via the Application and/or sharing the Application (if applicable). Facebook membership, the ‘liking’ of Facebook pages, the sharing of Facebook pages, Facebook pages, Facebook applications and use of Facebook generally are subject to the Facebook prevailing terms and conditions of use available at www.facebook.com/policies. The promotion is in no way sponsored, endorsed or administered by, or associated with, Facebook. Entrants understand that they are providing their information to the Promoter and not to Facebook. Entrants are solely responsible and liable for the content of their entries and any other information they transmit to other Internet users. To the extent permitted by law, each Entrant agrees to indemnify, defend and forever hold harmless, Facebook and its associated agencies and companies, against any and all losses, actions, claims, costs, expenses and damages (of any nature) which may be incurred by an Entrant in respect of the Entrant’s participation in the promotion. Any questions, comments or complaints about this promotion must be directed to the Promoter and not to Facebook.
This serves to exclude liability for posts done by people other than company employees.
10.Entries will be deemed accepted at the time of receipt by the Promoter and not at the time of transmission. Entries received will be considered final by the Promoter. Incomplete, inaccurate, erroneous, ineligible or incomprehensible entries will be deemed invalid. The Promoter accepts no responsibility for late, lost or misdirected entries. Contact details entered incorrectly via the Application by an Entrant will deem an Entry (as applicable) invalid.
This makes the method of acceptance clear and provides for discretion in the case that this method is not performed correctly.
11. The use of any automated entry software or any mechanical, electronic or other means that allows an Entrant to automatically enter repeatedly is prohibited and will render all entries submitted by that Entrant invalid.
This sets out fair terms and the measures to be taken if they are not met.
12.The draw to determine the winner will take place at (time) on (place of draw). The winner will be notified in writing and their name and locality will be published in (place of publication) on (date of publication). All reasonable steps to notify the winner of the results of the draw will be taken by the Promoter. The Promoter’s decision is final and no correspondence will be entered into.
This sets out the method, time and place of the draw and the binding nature of it.
13. The first eligible entry randomly drawn from all Entries received during the Promotion Period will win (prize details):
This sets out the method of the draw.
14. The particular prize awarded in this promotion will depend on the number of entries received by the Domain Page by the end of the Promotion Period and will be determined by the Promoter in its sole discretion. The Promoter’s decision as to the number of entries and the prize awarded is final and no correspondence will be entered into.
This allows for discretion in the type of prize to be awarded.
15.The winner must collect their prize from (specified location). Collection of the prize is subject to availability of the vehicle, but is anticipated to be within … days from the date of winner notification. Any costs incurred in collection of the prize are the sole responsibility of the winner.
This sets out the responsibility of the winner to collect the prize within a set time and at their own expense.
16. The prize includes .... Any and all ancillary costs, accessories or optional extras not expressly provided as part of the prize will be at the winner’s expense. The prize excludes … costs, which are the responsibility of the winner.
This sets out the features of the vehicle and excludes liability for incurring certain expenses of the car.
17. Total maximum prize value is …. The prize is not transferable or exchangeable and cannot be taken as cash (unless otherwise indicated). The prize must be taken as offered and cannot be varied. The Promoter accepts no responsibility for any tax implications that may arise from the prize winnings. Independent financial advice should be sought. The Promoter and the Prize Sponsor accept no responsibility for any variation in prize values. All prize values are the recommended retail price including GST.
This sets out the value of the prizes and the requirement for it to be accepted as it is offered.
18. The Promoter may conduct a further draw at the same time and place as the original draw as is necessary on (date of draw) in order to distribute the prize if unclaimed by that date, subject to any written directions given under applicable State or Territory legislation. In the event of any winner in the unclaimed prize draw, the winner will be notified in writing and their name and locality will be published in (place of publication) on (date of publication). All reasonable attempts to notify the winner (if any) of the results of the unclaimed prize draw will be taken by the Promoter. The Promoter’s decision is final and no correspondence will be entered into.
This provides for the procedure in the event of the prize being unclaimed.
19. Entrants can only enter in their own name. Entrants who provide incorrect, misleading or fraudulent information are ineligible to participate in the promotion and all entries of an Entrant who is deemed by the Promoter to have provided incorrect, misleading or fraudulent information may, at the discretion of the Promoter, be deemed invalid. The Promoter reserves the right to request the Entrant produce (within the requested time) appropriate photo identification or other documentation (to the Promoter’s satisfaction, at its sole discretion) in order to confirm the Entrant’s identity, age, residential address, eligibility to enter and claim the prize, and any information submitted by the Entrant in entering the promotion, before issuing the prize. If the documentation required by the Promoter is not received by the Promoter (or its nominated agent) or an Entrant or entry has not been verified or validated to the Promoter’s satisfaction then all the entries of that Entrant will be ineligible and deemed invalid.
This makes it clear that entrants must enter in their own name and provides that incorrect, misleading or fraudulent information will leaed to the entrants being deemd invalid.
20. It is a condition of accepting the prize that the winner may be required to sign a legal release or releases in a form determined by the Promoter in its absolute discretion.
This provides for the discretion in setting legal terms which the Promoter would like enforced.
21. The Promoter, its associated agencies and companies exclude all liability (including negligence) except for any liability that cannot be excluded by law, for any loss, damage or injury suffered or sustained as a result of this promotion, or taking a prize or any component of a prize in connection with or arising out of this promotion. This includes, but is not limited to: (i) technical malfunctions, delays or failures, including those resulting from accessing any materials related to this promotion and any incorrect, inaccurate or incomplete information communicated in the course of, or in connection with, this promotion as a result of any technical malfunctions or failures; (ii) theft, unauthorised access or third party interference; (iii) lost or damaged entries, prize claims or the prize; and/or (iv) acceptance and/or use of the prize. Applicable manufacturers and/or distributors should be contacted in regards to all prize warranty claims.
This acts as a liability exclusion clause. However, it must be noted that one cannot remove liability for engagement in illegal acts.
22. The Promoter reserves the right, at any time, to verify the validity of any and all entries and Entrants and to disqualify any Entrant who submits an entry that is not in accordance with these Conditions of Entry, who tampers with the entry process (including the use of any form of automated entry device or software) or who is engaged in any unlawful or other improper misconduct calculated to jeopardise the fair and proper conduct of the promotion. The Promoter’s legal rights to recover damages or other compensation from such an offender are reserved. The prize will only be awarded following any winner validation and verification that the Promoter requires in its sole discretion.
This sets out the requirement for fair play and allows for the Promoter to disqualify or take legal action against such offenders.
23. If the prize or element of the prize becomes unavailable for any reason beyond the Promoter’s reasonable control, then a comparable prize or prize element of equal or greater value will be awarded in lieu, subject to any written directions made under applicable State or Territory legislation.
This provides for the awarding of comparable prizes if the prize becomes unavailable.
24. Any attempt, deliberate or otherwise, to cause malicious damage or interference with the normal functioning of the Domain Page, Domain Website and/or Application or the information on the Domain Page, Domain Website and/or Application, or to otherwise undermine the legitimate operation of this promotion may be a violation of criminal and civil laws and, should such an attempt be made, whether successful or not, the Promoter reserves the right to seek damages to the fullest extent permitted by law. If the Promoter suffers loss or incurs any costs in connection with any breach of these Conditions of Entry or any other legal obligation by an Entrant, the Entrant agrees to indemnify the Promoter for those losses, damages and costs.
This provides for the taking of action in the event of interference with the website.
25. If for any reason beyond the reasonable control of the Promoter this promotion is not capable of running as planned, including but not limited to war, state of emergency or disaster (including natural disaster), infection by computer virus, bugs, tampering, unauthorised intervention, technical failures, fraud or causes beyond the control of the Promoter or anything which corrupts or affects the administration, security, fairness, integrity or proper conduct of this promotion, the Promoter reserves the right in their sole discretion to cancel, modify or suspend the promotion, if necessary, to provide an alternative prize or prizes to the same value as the original prize, subject to any written directions made under applicable State or Territory legislation.
This provides for the modification or cancellation in the event of a major disruption of the competition
27. As a condition of entering this promotion, each Entrant consents, in the event they are the winner, to the Promoter using the Entrant’s name, likeness, image and/or voice (including photograph, film and/or recording of the same) in any media for an unlimited period without further notification, remuneration or compensation for the purpose of promoting, publicising or marketing this promotion (including any outcome) and/or promoting any products or services manufactured, distributed and/or supplied by the Promoter. The Entrant agrees that, in the event they are the winner, the Entrant will participate in all reasonable promoted activities in relation to the promotion as requested by the Promoter and its agents.
This excludes liability for the use of various features of the entrant’s identity.
28. If an Entrant participates in the promotion and also chooses to “opt-in” via the Application in the manner required, each Entrant consents to their personal information being used by the Promoter for the purposes of carrying out marketing, planning, product development and promotional campaigns and to contact the Entrant in the future with information on special offers or to provide the Entrant with marketing materials via any media including mail, telephone and electronic messages (SMS, MMS, Instant Messaging and email) or any other form of electronic, emerging, digital or conventional communications channel whether existing now or in the future, unless an Entrant otherwise withdraws their consent to the use of their information in this manner. The Promoter may share information with its Australian related companies or promotional partners who may contact the Entrant with special offers in this way. By entering the promotion and opting-in, an Entrant acknowledges and agrees that the Promoter may use the Entrant’s personal information in the manner set out in this condition.
This allows for the use of personal information for the stated purposes. It also allows for future communication unless permission is withdrawn.
NSW Permit No.. VIC Permit Number. SA Permit No.. ACT Permit No.