How to Write a Terms & Conditions Document

Putting together a sound Terms & Conditions document for your race is one of the best investments of your time. A little bit of work upfront can help save you a ton of headaches down the line on anything from refunds and cancellations to any number of crazy participant requests!

But what areas should your Terms & Conditions document cover? And how do you best protect against the myriads of liabilities putting on a race can expose you to?

In the rest of this article we take a look at the kinds of things that you should consider including in your Terms &Conditions, things you should pay particular attention to and options you have around refunds and other commercial clauses.

What is a Terms & Conditions document?

A Terms & Conditions document (T&Cs, for short) is an agreement you, the organizer, and each of your participants separately enter into. This agreement governs the rights and responsibilities you have towards each other and provides a mechanism for resolving disputes that may arise between you.

You should always prepare T&Cs for every event you put on. and make sure every single participant - without exception - agrees to them before entering any of your events.

You should also be mindful what legal form this agreement should take to be enforceable in your jurisdiction. For example, there may be different legal requirements for T&Cs being agreed to online (does the participant tick a box to agree? Can the box be pre-ticked in so-called soft opt-in?) to those necessary when signing a hard-copy registration form.

Always check to make sure your registration process and acceptance of T&Cs is done in a way compliant with local law, so you avoid any nasty surprises later.

Structure of a Terms & Conditions document

As with our recent feature on risk assessments, with T&Cs too there is no standard form to follow. Depending of the event specifics there will be clauses that may or may not apply to your race.

In what follows, we look at the sections and types of clauses typically found in a T&Cs document.

Definitions

Usually you will want to begin your document with a Definitions section. This is where you identify the parties entering into the agreement (you and your participant) and outline any standard terms you plan to refer to in the rest of the document.

The Definitions section should contain at a minimum:

• Definitions for “us” or “we”. "We" in this document would be you, the organizer. Provide information about the legal entity organizing the event, your address and company registration number.
• Definitions of “you”. "You" would be each of your participants separately.
• Definitions for the “Event” or “Race”. That’s the race the T&Cs pertain to. You should refer to this race in capitalized terms in the rest of the document (e.g. “Event” or “Race”) to avoid confusion with events and races in general.

Clauses

After your Definitions are laid out, you can dive straight into the main body of provisions for your Terms & Conditions. This is the juicy bit of your document.

It is helpful to group your provisions into numbered sections (e.g. 1, 2, 3 etc), with each section further subdivided into logical paragraphs (e.g. 1.1, 1.2, 1.3 etc).

Terms & Conditions checklist

When it comes to writing out your registration terms, there are no standards as such.

That said, there are some fairly common clauses you'd want to consider adding to your T&C document. Let's look at some of them in greater detail.

Event entry

What procedure should a participant follow to register for your race and what conditions apply before their entry is confirmed (e.g. receipt of payment)? Would a provisional entry be subject to further obligations on the participant’s part, such as the submission of qualification results or a signed medical certificate at a later stage?

Is your participant allowed to transfer, swap or sell their entry to another person?

Event cancellation

What rights do you have with respect to canceling the event that you would like your participant to agree to?

You should be allowed to cancel without any liability to your participants in the event of force majeure, i.e. unforeseen irremediable circumstances beyond your control (war, terrorism, severe weather etc).

Beyond that, you may want to write in additional cancellation rights, for example, if your race fails to reach a minimum number of participants.

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Changes to the event

It is reasonable that you should have the discretion to make changes to your event. You should be allowed, for instance, to modify your race course without giving rise to a participant right of refund.

Participants' obligations

It's good practice to get your participants to agree to a number of ongoing obligations, including:

1. Abiding by your Terms & Conditions: Obviously. Your participants need to continue to abide by all terms in the T&Cs.
2. Abiding by officials’ instructions: Your participants need to follow instructions given out during the race by other members of your team.
3. Submission of a valid medical certificate: If you choose to request a medical certificate, your participants are obliged to provide one at a time and in a format outlined by you.
4. Use of mandatory equipment: This is more relevant for adventure races, ultras and other events where safety necessitates the carrying of a mandatory kit.
5. Acting responsibly during the race: Your participants should refrain from any behavior that puts others in danger.

Participant ejection from the event

You will definitely want to give yourself the right to eject participants from your race for things like:

1. Providing falsified information or impersonating others
2. Failing to follow instructions or being in breach of your T&Cs
3. Failing to make it to the start line on time or falling behind set race time limits
4. Being intoxicated or acting in a manner that may endanger others, cause harm to the environment or serious offence to others

Participant withdrawal & refunds

You should try to be reasonable and accommodating around participants withdrawing from your event. That said, you should not feel like you should commit to unrealistic refunds or zero-penalty rolling of entries to future editions.

What you may want to do is implement a waterfall-type refund, where a smaller proportion of the entry fee is returned as the refund request gets closer to race day (obviously reflecting sunk costs on your part).

However clear and fair your refund policy, having to issue (or even worse, decline!) refunds is not a great place to be. How you go about handling refunds when the inevitable happens is a mark of a truly savvy race organizer.

Participant declarations

It is important that your participants agree to certain key declarations when signing your T&Cs. These may not necessarily all come under the same section in your document, but they should nonetheless include:

1. An acknowledgement and acceptance of the physical risks involved during the race. This should include a declaration that your participants know not of any health reason why they shouldn’t be taking part in the event and a voluntary acceptance of the risks involved. More on this crucial bit in the next section where we look at liability waivers.
2. An authorization from your participant to you and medical staff granting you the right to provide medical treatment in an emergency. You should also add here that you are not providing medical insurance and that your participant also agrees to being liable for any expenses incurred under any medical treatment you have to offer them in an emergency.

Limitation of liability

Did a participant make a fool of themselves in your race and someone caught it on camera? Did they tire themselves out and were late for a business appointment the next day? Tough luck.

You may be surprised to hear that you need to provision for something like this, but it won’t hurt to spell it out: you are not liable for any loss of profit, reputation, business or otherwise suffered in any form by your participants taking part in your event. Period.

Since we're on the subject of liability, though, a couple of points for you to keep in mind:

• If you have granted yourself funky cancellation rights (e.g. if the race fails to meet a minimum number of registrations), make sure to spell out any limitations to your liability. For instance, if you cancel the event in line with your cancellation rights and your participants have made travel arrangements, you should clearly state that your liability is only limited to refunding their entry fee, nothing more.
  
  
• In some cases it may be illegal and harmful to the overall integrity of your contract if you go too far and try to disown certain legal responsibilities, such as your duty of care to your participants. So be careful before going overboard with your liability waivers. More on this in the next section.

Data protection

As part of your registration process you will likely come into possession of personal data from your users. In most jurisdictions, you have a responsibility for storing and handling that data.

In this section, you should get your participants to agree to your use of their personal data for the purposes of fulfilling your event, including the publication of race results. You should also get them to agree to the sharing of their personal data with medical personnel in case of an emergency and any third parties you may want to run promotions with.

Use of image and other rights

Two things to put in this section:

1. Your participant granting you the right to use their image captured as part of your event (in photos, video, TV etc)
2. You granting your participant a right to use whatever media they product during the event for personal use only (no commercial use)

General terms

Depending on your jurisdiction and legal advice, you may want to end your document with a bunch of standard legal terms such as:

• Agreeing to governing law
• Agreeing that in the case of invalid provisions, the rest of the doc stands
• Agreeing that the contract confers no rights to third party (i.e. these T&Cs are a matter between you and your participant only)

A note on liability waivers

If you follow the news, you may have come across RacePass, a US-based registration startup that came under fire from race directors for its procedures around the collection of waivers from race participants.

Essentially, by sitting between races and participants, RacePass was signing waivers on behalf of participants which resulted in an invalidation of many races' insurance cover.

We don't want to dwell on the specifics of the RacePass controversy, but this goes to illustrate two very important points about managing liability waivers:

• do not approach them casually
• even small changes to the process of signing and collecting them must be thoroughly reviewed for your circumstances and jurisdiction

So what can go wrong?

Many things, unfortunately, but one thing in particular merits a couple more words: attempting to waive your duty of care.

"What is my duty of care?" you ask. It is your legal duty as organizer of an event towards the safety and wellbeing of your participants, employees, volunteers and spectators.

You should be very very careful about getting your participants to release you from liability under your duty of care. Attempts to limit liability for things like negligence, for which certain jurisdictions do not allow a limitation of liability, may be deemed abusive and could land you in hot water - even invalidate your entire contract.

So, what should you do to protect yourself and mitigate risks of harm to your participants etc? We - not being lawyers and all - would suggest you consider the following:

• Prepare a risk assessment. Not doing so exposes you to the risk of being perceived as negligent in your approach to health & safety. If you can’t even be bothered to think through the risks and put a plan in place to mitigate them, how can you claim to be taking your duty of care seriously?
• Get your participants to acknowledge the intrinsic risks in your race. An intrinsic risk is one that cannot be mitigated, for example, the risk of injury in harsh terrain or heat stroke in a desert marathon. By getting your participants to acknowledge what they’re getting themselves into (through a suitably worded clause in your T&C document), it makes it harder for them to complain about the obvious at a later stage.
• Protect your participants from themselves. Do you need to be asking for a medical certificate? Are you letting people into your race that shouldn’t be there or may be unable to cope? You should be taking reasonable steps to keep people out of your race that may be putting themselves in danger through carelessness or misplaced ambition!

You should understand that there is no way to magically get yourself off the hook in the event of someone getting hurt during your event. But, you can greatly mitigate the risks through sound preparation.

Dotting i’s and crossing t’s

After you’re done writing your Terms & Conditions document, you need to make sure you follow the necessary legal process in getting your participants to agree to it. This may sound simple - and in most cases it is - but you should nonetheless make sure you don’t fall over at the last hurdle.

"Agreeing" to a contract and "signing" it may mean different things in different jurisdictions. If you intend to provide your T&Cs to participants during your registrations process, you need to be particularly careful of what you ask them to do. Make sure it is clear that they are agreeing to having read and understood the T&Cs before registering. Add some language to that effect followed by a tick box or other affirmative action that gets them to explicitly provide consent.

In some jurisdictions, the law is less than clear about the enforceability of contracts entered to online. If unsure about this point, ask your participants to print out the T&Cs and bring them along signed to their race package pickup or other occasion before definitively accepting them into the race.

Always confer with a qualified and experienced lawyer before presenting your T&Cs or other legally binding documents to participants and other race stakeholders.