Mastering Your Competition's Terms and Conditions

Posted on: 25th February 2013

Creating Terms & ConditionsUsually 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.

A copy of the Promoter’s privacy policy can be viewed at (website).

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.

PROMOTION PERIOD

3. The promotion commences at      (time and date of the promotion).

ELIGIBILITY

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.

ENTRIES

5. To enter this promotion,      Entrants must, during the Promotion Period:

  1. visit the Domain page on       Facebook (www.facebook.com/domain.com.au);
  2. '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;
  3. access the promotional       application made available on the landing page of the Domain Page; and
  4. 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 :

  1. follow the prompts of the       Application in the manner required to www.domain.com.au ;
  2. 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
  3. 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.

 

ENTRY LIMITATIONS

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.

DRAW

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.

PRIZE

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.

GENERAL

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

26. An entry and any copyright      subsisting in an entry irrevocably becomes, at time of entry, the property      of the Promoter. The collection, use and disclosure of personal      information in connection with this promotion is governed by the Privacy      Act 1988 (Cth). The Promoter collects personal information about an      Entrant to include the Entrant in the promotion and, where appropriate,      award the prize. If the personal information requested is not provided,      the Entrant cannot participate in the promotion and is deemed ineligible.      By entering this promotion, Entrants agree to the Promoter using and      disclosing the Entrant’s personal information for the purposes of conducting      the promotion, redeeming the prize, publishing the Entrant winner’s name      and locality in any media, as required under the relevant State or      Territory lottery legislation, and any other matter connected to or      incidental to this promotion. An Entrant can gain access to, update or      correct any personal information held by the Promoter by contacting the      Promoter’s Privacy Officer at: (address of Promoter’s Privacy Officer).      All personal information will be stored at the office of the Promoter. A copy      of the Promoter’s Privacy Policy in relation to the treatment of personal      information collected may be obtained by contacting the Promoter.

This excludes liability for the use of entrants’ personal information and compliance with the privacy policy.

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.

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