Drafting Terms and Conditions for promotions, dealing with eventualities

Carrying out a digital promotion can bring about unforeseen situations for the organizer. In this article our legar partner Letslaw law firm offers solutions on how to handle three of these situations through properly written terms and conditions.

Drafting terms and conditions for promotions is an important issue for organizers when carrying out a promotional campaign (giveaways/contests/raffles) and it might be a challenge to foresee all the eventualities that may arise and have an effect on it. 

In order to be able to organize digital promotions and not run into unforeseen issues that may result in the inability of the organizer to carry on with them, it is paramount to ensure that the terms and conditions are properly drafted and that they anticipate these contingencies or hindrances happening while the campaign is taking place.

In our Terms and conditions drafting guide we lay out the necessary considerations to take into account when drafting the Terms and conditions for promotions.

Regardless of what we have just mentioned, in this article we aim to provide an answer to issues that go beyond the general drafting of terms and conditions and that provide safeguards and protection when, due to internal or external factors, the organizer faces one of the following situations while the promotional campaign is taking place:

  • That there are mistakes in the contents of the giveaway;
  • That the need to change the prize arises
  • That the campaign has to be suspended due to lack of participation or that its deadline has to be extended. 

Considering this and in order to provide an answer to these recurring issues, the statute 13/2011, May 27th, which regulates gaming and wagering was analyzed and concluded that it does not mention the impossibility of modifying the terms and conditions of an ongoing promotion.

To this effect, here are several safeguard and protection mechanisms for the aforementioned situations that can be used by the organizer and which, at all times, respect the participants’ right to receive clear and truthful information in accordance with the regulation in force:

Mistakes in the contents of the giveaway

In order to be able to modify the contents of any digital promotion it is necessary to include in the terms and conditions a clause that may be defined as “divisibility”. This clause will state that in case there is a mistake or omission in the contents, the rest of the stipulations will not be affected.

Here’s an example of a clause that covers possible mistakes in the contents of the giveaway. 

“We reserve the right to modify or extend these terms and conditions in such a way that it does not prejudice or compromise the participants’ rights. The mere act of participating in this promotional campaign implies that the participant fully accepts these terms and conditions. Likewise, the participation in a digital promotion of this nature implies the acceptance of the rules and regulations of X social network through which the present promotion is taking place.

Change in the prize initially offered

To modify the prize offered it is recommendable to add the following changes to the section referring to “nature of the prize”. An open ended wording like the one following will be established: 

“The particular information pertaining to this promotion, i.e. the mechanics, prize and notification of the winner(s) is mentioned in the post of the promotional campaign itself. 

This way, changes to the prize of the campaign can be notified through social networks.

However, the organizer has the possibility of stating that they reserve the right to change the prize before the end of the promotion due to reasons regarding its availability.

Suspension due to lack of participation and extension of the deadline

It is important that the organizer, when drafting the terms and conditions of a digital promotion, bears in mind that either one of these situations might occur: that the promotion is a success or that by contrast, few participants register.

In order to anticipate this it is recommendable to include a provision in the “Start and end dates” section.

Consequently the way to prepare for such eventuality is through the drafting of a clause that states that if certain circumstances arise (e.g. force majeure) within the timeframe of the promotion, the organizer will have the right to extend the deadline or even suspend the aforementioned promotion.

Here is a drafting example in case the organizer wishes to suspend the promotion:

“The digital promotion will not take place in case that by the date set to start, the number of participants is not more than X, or  “The organizer of the promotion reserves the right to modify and/or cancel the organization of the promotion or to declare it void without accountability or liability.”

Furthermore, in case the organizer wishes to extend the participation deadline, it is recommendable to include in the terms and conditions a clause with the following wording:

“The organizer can extend the participation deadline by X weeks, making the new participation deadline X in case the number of participants exceeds X.”

In this way, the organizer is allowed some leeway in the development and planification of the promotion while adhering at all times to the General Law for the Protection of Consumers and Users and other applicable regulations.

If you need a Terms and Conditions model that includes these eventualities you can download the template provided by Letslaw. You will find it at our free terms and conditions tool.

In Letslaw we provide legal counsel regarding raffles and contests both domestically and internationally. We are familiar global enterprises that conduct campaigns for a wide array of markets which require market-specific strategies. We offer our clients a thorough analysis of all necessary legal requirements in order to properly carry out giveaways and contests in Spain and abroad.

This article was written by:

Jose María Baños @banoslog

E-mail: jose.banos@letslaw.es