Gamestation and the ‘all souls’ clause

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Gamestation, the UK games retailer, pulled an interesting April Fools’ Day joke this year: it changed its terms and conditions to state that anyone buying goods from Gamestation online on 1st April this year and not clicking on a link contained within them would forfeit their soul.  7,500 people duly signed their souls over to Gamestation – and not person brought this to light – until Gamestation publicised what they had done!
The full clause read as follows:
By placing an order via this web site on the first day of the fourth month of the year 2010 Anno Domini, you agree to grant Us a non transferable option to claim, for now and for ever more, your immortal soul”.
“Should We wish to exercise this option, you agree to surrender your immortal soul, and any claim you may have on it, within 5 (five) working days of receiving written notification from gamesation.co.uk or one of its duly authorised minions. We reserve the right to serve such notice in 6 (six) foot high letters of fire, however we can accept no liability for any loss or damage caused by such an act…If you a) do not believe you have an immortal soul, b) have already given it to another party, or c) do not wish to grant Us such a license, please click the link below to nullify this sub-clause and proceed with your transaction.”
The link then led to a page explaining this was all a joke and offering a £5 voucher.  Presumably Gamestation are holding to a lot of those £5 vouchers in a warehouse somewhere now, since no one picked up on this at the time.  This experiment just goes to show, obviously, very few people actually read the terms and conditions they sign up to.  But why are consumers meant to read them in the first place?  Read on for more…
Games contracts and consumers
Games companies’ relationships with players are established under legal frameworks: the End User Licence Agreements, Terms of Use and so forth.  These are all standard form contracts, i.e. they are effectively imposed by the games company on the consumer as a condition of playing the game and generally cannot be negotiated – for the primary reason that this would be impossible, given the sheer number of people who want to play the games.  However, this lack of negotiability is said to put consumers at a commercial and legal disadvantage, because they either have to say ‘yes’ and then play the game or ‘no’ and then they can’t play the game.  As a result, UK/EU law has a range of legal measures in place intended to level the playing field.
One of the most important of these legal measures is the notice requirement: if you want to enforce your standard form contract against a consumer you need to be able to show (among other things) that the consumer has been given notice of the terms of the contract and has actually accepted them.  This has arisen after long series of case law in which courts either have struck down attempts by companies to impose unfair terms and conditions on consumers without really telling them in advance, or the courts have upheld terms and conditions that a consumer had simply not bothered to read.
This DOESN’T mean though that companies have to ensure that a player reads every single clause of a contract in order for that contract to be enforceable.  Rather, most common law jurisdictions require you to take only reasonable steps to bring the terms to the attention of the consumer and to verify his/her consent to them.  This can be done in different ways, but for games it is most popularly done through a notice on the front of the game’s exterior packaging and/or the requirement to click through a EULA etc before the game can be played.
Of course, as we said above, what the Gamestation prank shows is that in reality most consumers don’t read these T and Cs.  That’s fine for this kind of jokey ‘all souls clause’, but it may not be quite so funny if there was a quite material term in the T and Cs which had a real impact on the consumer – such a clause limiting the company’s financial liability or requiring any dispute to be litigated under foreign law (though it’s worth bearing in mind that other consumer protection laws might well help the consumer in those situations).
On the other side of the coin, reading the contracts into which you enter with online service and goods providers can be very useful, because they set out your legal rights in relation to those services or goods.  You might be surprised at what you can do, particularly if the provider has voluntarily granted you rights (e.g. an extended warranty period or refund system) which goes beyond its statutory obligations.
The moral of the story?  These pieces of electronic paper are there for a reason: they govern your relationship with the people you buy stuff from.  So don’t sign your soul away, read them!
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