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Cashmio - Confiscation of Winnings

Ruling

Found for the Casino - Rather than one complaint this player has found a significant number of reasons that they feel that despite breaching the max bet term for the bonus they accepted, that the max bet term should not be considered legitimate in this case. Having reviewed these claims we don't see majority in the vast majority of them. The one that may have bearing to the case relates to the position of the terms and conditions link in relation to the banner advertising the promotion. This is a technicality that falls under the remit of the Advertising Standards Agency in the UK. As such we've directed the player to the ASA to review this particular aspect of their complaint.

Read our Cashmio Casino Review.

Player's Complaint

I write to request you look into a dispute between myself and Cashmio (www.cashmio.com) where they have confiscated £2652.51 of winnings due to "bets being made in excess of £5.00".

The main points in my argument against the confiscation of funds are:

1. The only Terms and Conditions I were presented with and accepted were the ones at sign up, their "Terms and Conditions" and at no point was I presented with any "Bonus Terms and Conditions" which is what they have based the confiscation of funds on.

2. Term 8.6 within the Terms and Conditions states that a players "deposited funds" are always used before bonus funds. Since my balance never dropped into the bonus funds then all associated winnings were won with my deposited funds.

Cashmio have stated that in signing up to their "Terms and Conditions" I signed up to clause 1.1.4 (see page 23 of email chain) which states that I also signed up to "any terms and conditions of promotions, bonuses and special offers which may be found on the website from time to time" and this is why they have confiscated funds. Stating that by accepting the "Terms and Conditions" at sign up I have automatically accepted the "Bonus Terms and Conditions" (again a completely separate set of terms and conditions which you are not made aware of at sign up or deposit).

My argument is that under the Consumer Rights Act 2015 (attached) these "Bonus Terms and Conditions" would be considered hidden terms and conditions (see below) making clause 1.1.4 unfair and therefore making confiscation of funds based on these terms unfair. Stating that there may be additional terms and conditions "on the website from time to time" is not enough.

(10) A term which has the object or effect of irrevocably binding the consumer to terms with which the consumer has had no real opportunity of becoming acquainted before the conclusion of the contract

3. Notwithstanding the above, throughout the Bonus Terms and Conditions, any bonus funds are mentioned with regards to "wagering requirements". Only clause 15 which they have based the confiscation of funds on refer to "play through requirements". This term is mentioned nowhere else in either the Terms and Conditions or Bonus Terms and Conditions. Nor is their a definitions list to identify what "play through requirements means".

4. By their own admission, in the email of 23/01/17 at 12.20, their own staff struggle to understand the terms and have to have management explain them.

5. They have failed to provide me with email copies of their Terms and Conditions and Bonus Terms and Conditions.

6. They have failed to provide me with full company details so I can take the matter further should I need to do so.

In my attachment (complaint text) I will now go on to explain the position fully and outline evidence supporting my case.

Should you require any further information then please do not hesitate to contact me.

Read the casino review

7 Responses

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ThePOGG
January 30, 2017

Hi annwoz82 - welcome back!

As a UK citizen and as we are the officially appointed Alternative Dispute Resolution service for Cashmio Casino there is certain information we have to provide you now.

You can find all the relevant information about this service here – http://thepogg.com/terms-of-use/

To summarise.

– Use of this service does not preclude your seeking redress through court proceedings .

– This service is free to use for both the complainant and operator.

– At any point during the procedure the submitting party retains the right to withdraw their complaint. This does not preclude our right to continue the discussion with the involved operator of general issues related to the complaint (i.e. insufficiently clear terms and conditions).

– You are not obliged to obtain independent or legal advice or representation, though you may choose to do so.

The above is somewhat clunky but a necessary part of the process for any complaint that comes in under ADR procedures.

If you have any questions about the above, let me know.

Moving on to your complaint specifically - unfortunately there is not going to be anything we can do to help you.

I have read through your complaint and the attached documentation you sent through with your initial email and unfortunately I cannot agree with the claims you are making.

I will go through these numerically for the sake of clarity.

1. This issue relates to the terms you agreed to at the point of sign-up. These are the general terms that relate to your use of the operator's service. As with any service contract you enter into in any consumer field, if you subsequently choose to take additional services there will be further contractual obligations not detailed in the original contract. While the general terms and conditions do not layout the terms for bonuses, at the point of registration you have not taken a bonus and as such are not subject to bonus terms. You are simply agreeing to agree to the terms of any bonus you accept.

Further to this the general terms and conditions do make clear via term 1.1.4 that if you do take a bonus there are further terms and conditions associated with any bonus you accept.

In summary, the bonus terms and conditions did not need to be presented to you at the point of your registration.

At the point where you familiarised yourself with the general terms and conditions, you familiarised yourself with the fact that there were additional terms associated with accepting bonuses. This had been explicitly referenced in term 1.1.4.

2. You then went on to make a deposit and at that point received a bonus. Being familiar with the general terms and conditions you would be aware that a bonus will come with its own terms and conditions. At this point it is your responsibility to ensure you are familiar with the terms of that bonus before you accept it (start to play with it).

As you correctly point out, the bonus terms and conditions are available within the footer of the site. However I can't agree that this is in any way inaccessible. This link is in full size text and is available on every page:

The location of the bonus terms does not fall under any reasonable definition of denying the consumer "real opportunity of becoming acquainted" with them. They are freely available on every page, in a font and colour that can be reasonably considered apparent, you are informed of additional terms within the general terms you agree to at point of registration and there are 2 different support facilities if you were unsure of the location or any aspect of the bonus contract.

Carrying on point 2 - whether or not deposited or bonus funds generated the win the bonus contract is still in force from the point where you accept a bonus until the point where the wagering requirement has been completed. You are right that deposited funds are wagered first, however there is no exclusion made to apply the restrictions only to bets made with bonus funds. The restrictions are applicable from the point you receive the bonus to the point where you have met the bonus requirements.

3. The distinction between "wagering requirement" and "play through requirement" - both of these terms are self-evident within the context of the service being provided by simple examination of the meaning of the words.

The word wager is defined as "more formal term for bet". Bet means "an act of betting a sum of money". Therefore "wagering requirement" would logically mean the wagers you are required to place.

Similarly for "play through requirement" - within the context of a casino to "play" is to place a bet. The definition of "through" is "continuing in time towards completion of (a process or period)". Therefore the term "play through requirement" logically means bet towards completion of the requirement.

The above are not terms that require explicit definition within the terms of a contract as they are all commonly used words within the English vernacular being used in a manner that is consistent with their common usage. The combination of the words has a self-evident meaning.

However, if a consumer were to find themselves unsure of the meaning of such a term they could contact support to either decline the bonus or receive clarification.

4. That each individual member of support staff is not familiar with the intricacies of your communication and refers to a coordinating member of management who has reviewed your communications in detail does not in itself indicate that the terms are unreasonably difficult to understand. Your conversations with the operator have been extensive and having each point of contact complete the same review of the information would be inefficient both in terms of cost and speed of resolution.

5. You already have the terms and conditions, both general and bonus terms. If you're still unsure regarding where to find them you can refer to the image included above where you'll find both the general and bonus terms and conditions as they are provided to all consumers on the Cashmio website. You have made reference to both documents at various junctures through your communications with the operator and complaint submission so it is not unreasonable that the operator has assumed that you already have access to this information, making your request a redundancy.

6. You can find full company details for any UKGC licensed operator by simply clicking on the Gambling Commission logo or link. The url for this page can be found here - https://secure.gamblingcommission.gov.uk/PublicRegister/Search/Detail/39575.

The summary of your complaint would be that where you accept a bonus at any online gambling operator you are going to be subject to bonus terms and conditions and need to ensure you familiarise yourself with those terms before you commence play. I would emphasise that "accept" is a passive term - by starting to play while a bonus is part of your balance you have "accepted" the bonus.

As stated at the top of this response, this ruling does not impact your right to pursue your claim via the legal system so you are free to pursue that course of action at this juncture if you still feel you have a claim.

Sorry we could not be of more help,

ThePOGG

User icon
ThePOGG
January 30, 2017

Hi annwoz82,

Thank you for your email.

The lack of definition of the consequences of breach of terms does not make the current situation unfair. Where you've broken the terms of the bonus that you accepted the contract is simply considered void. As such conditions have to be returned to their pre-contract conditions.

That being the case your deposit should have been returned while the bonus and any winnings associated with the bonus would be considered void. If that has not happened let me know and I'll contact the operator about this.

Thanks,

ThePOGG

User icon
ThePOGG
January 31, 2017

Hi annwoz82, I've already reviewed the Consumer Rights Act in detail over this and other cases. I don't believe that the terms in question are either misleading, confusing or unnecessarily inaccessible. I appreciate you are unhappy with the ruling given, but this not something that's likely to change. By all means feel free to invest your time as you see fit and I will review, but the position of this body is that there were freely available terms and conditions, these terms and conditions were easily understood, where there was any confusion on the part of the consumer it was a) not an symptomatic of poorly constructed terms, b) not due to the terms being unreasonably difficult to find and c) there was readily available assistance to allow the consumer to clarify any point they were not sure of and finally the terms do not place the consumer at an unreasonable disadvantage by their nature or construction. If you disagree with that interpretation of the CRA you're going to have to challenge it in the courts I'm afraid. Sorry that we can't be of more help, ThePOGG

User icon
ThePOGG
January 31, 2017

Hi annwoz82,

In response to your email:

- At the point or registration you have not received any bonus or been bound by any bonus terms and conditions. You have simply agreed to the general terms and conditions required before you are allowed to register an account.

While all casino advertise a sign-up bonus, as the Cashmio bonus requires a deposit before it is awarded to you and subsequently binds you by terms, it is at the point of deposit that you are engaging the bonus contract not the point where you observe an advertisement.

The general terms and conditions, which you ticked to acknowledge you had read at the point of registration, clearly informed you that bonuses were subject to terms and conditions as posted on the site.

To make a basic point here - across our top rated operators we see around 50% of the users that sign-up go on to deposit. Those users that have signed-up but never go on to deposit have only agreed to the general terms and conditions and would only become subject to bonus terms and conditions at the point where they receive a bonus. In the case of deposit based bonuses this would be at the point that they choose to deposit.

The terms and condition for bonuses were adequately apparent on site and it was your responsibility to review them - as agreed in the general terms and conditions - before you claimed any bonuses.

- Regarding having to click "61 times" to find the bonus terms and conditions - an obvious and apparent alternative is clicking a single time and holding while the scroll bar moves down the page. Or clicking a single time on the scroll bar cursor and moving the bar down. You were on the page, you only needed to click one link to find the bonus terms. With regard to consumer law, where they discuss terms having to be within a specific number of clicks, this means the number of page loads you have to engage, not repeatedly moving the scroll bar down by small increments. As such, within this definition, you were always within a single click of the bonus terms and conditions.

The statement that the bonus terms can be "found on the Website" is not unrepresentative in any way. A link to the Bonus Terms and Conditions is readily apparent on every page before loading a game.

- With regard to changes to terms and conditions - unless you have specific and clear evidence to demonstrate that there has been a change to the relevant terms since you signed up this is simply an unsubstantiated claim that cannot be considered for the purposes of this complaint.

As it happens, the general terms and conditions do include this statement:

"Version 2.6 last updated 5th of December 2016"

Further to this, with regard to the bonus terms and conditions and the specific term restricting bet sizes, our review of Cashmio was published on the 22nd of September 2016. It was update towards the end of October 2016 to detail any new complaints found at other sites. There was a secondary minor update during November to include the latest customer service response times. At neither of these points would the bonus section have been updated.

I will include a screenshot of the Google Cache of our review page dated the 29th - the day before you contacted us regarding your complaint:

You can view a full size version of this image at the following address - http://thepogg.com/wp-content/uploads/2016/10/cashmio-review-google-cache.jpg

You will be able to see within our review clear statement within the bonus section as follows:

"Maximum Bet Restriction (-1) - You are not allowed to wager more than €5 on any single round of play while you have a bonus."

In short, our team has previously reviewed the Cashmio bonus terms and conditions and specifically chose to highlight the term restricting bets sizes within our review. This happened long before your play. The information has not been updated recently and is consistent with the rule being enforced in this case and the information that was present on our site before the point where you contacted us regarding your complaint.

At this juncture I will reiterate my previous statement - I am sorry we cannot provide you with the ruling that you want, but we cannot support your claim and as long as the operator has returned your deposit we view the actions taken as correct and fair.

ThePOGG

User icon
ThePOGG
January 31, 2017

Hi annwoz82,

In response to your email:

- At no point did I suggest or imply that you had read our review prior to accepting the Cashmio bonus. Nor did I suggest or imply that our review would be legally binding.

The point that was clearly made is that you have presented no evidence what-so-ever to support an accusation which would be of a criminal nature (fraud). Significantly, alongside no supporting evidence for your claim we have strong justification, in the form of our independent review of the Cashmio terms significantly before your play, to justify the conclusion that the term was in place at the time of your play.

- With regard to our review listing the term in € - as you're accessing from the UK you would be shown the UK version of the terms with the currencies in GBP. Our reviewer clearly accessed from an EU IP address and as such received the terms that relate to €. There is no conflict here. To view this for yourself simply access the Cashimo site and click any one of the flags in the footer. The settings for the Canadian and Australian versions of the site display in $ and for all other non-UK locations, including the international site, display in €. Barring the currency symbol the figures are the same,

However, even if a conversion rate was applied given that your bet of £10 would have breached the maximum bet term regardless of the currency applied using the any of the currency conversion rates provided by any major financial institution over the duration in question, this point is moot.

- Your opinion relating to the location of the bonus terms and conditions is not in line with ours, current consumer law requirements or that of standard practice within this and other industries. Please feel free to review websites within any sector and you will find that terms and conditions and other legal information are consistently provided within the footer of the site. To provide 3 significant examples that I can locate within a few moments, please look to the following sites, all of which have their terms and legal information at the bottom of the webpage and are less prominent in terms of location, text size and colour than the Cashmio terms:

https://www.microsoft.com/en-gb/

https://www.google.co.uk/

http://www.ebay.co.uk/

I'm sorry, but objective review does not suggest that the location of the Cashmio bonus terms would present an issue to the average consumer. I appreciate you may not have gone looking for these terms, but the footer of the website is the accepted standard location for all businesses to post said information.

- With regard to requiring Cashmio to 'prove' that the term was in place - you acknowledge you did not review the bonus terms before play. As such you have no grounds to assert that the term was not in place. Further to this, given that we independently reviewed the terms prior to this issue and actively highlighted the term in question within our review we have sound basis to assert that it was in place without requiring the operator to provide evidence. Unless you can provide reasonable justification for making such a claim no further investigation is required with regard to this issue.

- The other points within your email have already been addressed above.

We have given your our ruling - and extensive justification for the position we have taken - multiple times. I'm sorry you are not willing to accept that, but there is nothing further we can do to help you.

ThePOGG

User icon
ThePOGG
January 31, 2017

Hi annwoz82,

1. The lack of date on the terms does not constitute evidence that the terms have been changed. As I've been clear about, our team can confirm that this term was in place long before your play, so while there may have been (and I'm not making any assertion that there has been) other changes, unless you can demonstrate that terms specifically related to your complaint changed in a manner that would directly impact on your case then the changes would have no bearing on the ruling.

2. All gambling operator have to be able to alter the terms and conditions to adjust to what is a rapidly evolving market. There's nothing unfair in this term. It's simply advising you that they retain the right to change the terms of use and that you can find the current terms of use on their website at any point in time. In short, that you should ensure to review the terms before each transaction.

3. By accepting the presence of a bonus within your account you are accepting the bonus terms. When you agreed to the general terms you agreed to the terms and conditions of any bonus you were subsequently to accept. That meant you had to review the bonus terms before accepting any bonus. You agreed to the general terms, then claimed a bonus. That you did not at any point look to locate or familiarise yourself with the bonus terms is where this issue has actually occurred. These terms were freely available on every page, in a location that is standard across the entire internet, in a font, text size and colour that were easily noticed. And I'd again point out that there were multiple channels of support where you could ask about any terms associated with the bonus if you had any concerns.

4. You have claimed that you've seen changes to the bonus terms but a) stated that prior to play you did not review the bonus terms b) have failed to provide any evidence to support these claims and c) as I've already been clear about our team reviewed the terms and conditions at Cashimo long before your play and we can confirm the presence of the max bet term. While there may have been changes to other terms, only changes to the terms that are actually relevant to your case have any bearing on your complaint. I stress again, our team can confirm that the max bet term was in place before your play and they were using the same figure that is currently present within the terms at the time our review took place. We have no reasonable grounds to suggest that this term has been changed in any manner that would impact upon this case.

Point 5 and 6 extended your arguments beyond the terms that are directly relevant to your complaint and are now complaining about broader issues. Neither the privacy policy, changes to terms other than those relevant to your complaint, nor a lack of notification of changes to terms not directly relevant to your complaint have bearing on the complaint that your bonus winnings have been voided due to breach of the maximum bet rule. We can confirm that term was in place prior to your play and none of these issues relate to your ability to access the bonus terms and conditions.

If you are looking to make a complaint regarding these broader issue we could discuss then with the operator. However, if these claims were found to be true and it could be established that this has in any way disadvantaged you (this would mean outside of the issues related to your bonus play), the resultant ruling would invalidate all agreements in relation to your account and look to return both parties to the position they were in before the registration of the account (rather than before the bonus play). Given that this issue relates to your first deposit bonus, returning you to pre-bonus conditions or pre-registration conditions has the same basic consequence - return of your deposits - which I believe has already happened.

I'm sorry you are not happy with the conclusion of your complaint but there is nothing further to add at this end. If you want to take this further you will have to pursue the operator through the legal system. I feel we've now given more than ample consideration to the arguments you've presented and our conclusion remains the same.

ThePOGG

User icon
ThePOGG
January 31, 2017

Hi annwoz82,

Based on your submission we can conclude that you have in fact violated term 15 - that being the term related to the maximum allowed wager while you have a bonus. We did not need to contact the operator to conclude this as your own testimony makes this issue clear.

As such we can confirm that in our opinion the operator is justified in revoking the bonus you received and reverting your account to pre-bonus conditions based on term 15. We cannot confirm that no other term violations have occurred.

ThePOGG

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annwoz82 consented for ThePOGG to act on their behalf and share the personal information that they provide to ThePOGG with the following agencies for the purposes of resolving their complaint:

January 30, 2017

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