Q: Our agency is putting together a tour group that will use a small ground operator's unique services at the tour's destination, including potentially dangerous activities. I know that we need to have participants sign a disclaimer (aka "terms and conditions" or "participant agreement") such as those at www.pestronk.com/free.html, but do we also need a contract with the ground operator covering any liability for mishaps? What if the operator has no contract and always operates on a handshake? If we have an agreement with the operator, do we even need the disclaimer, since the ground operator would be agreeing to cover us? If we need both agreements, which one is more important?
A: Ideally, to protect you, the agreement with the operator should cover at least these points:
• A list of the operator's duties. The list should be more than simple nouns like "logistics"; use entire clauses or sentences that describe what the operator actually does.
• The price and the number of participants expected, including exactly what happens to the price if there are fewer or more participants. Avoid clauses like "the price will be adjusted by mutual agreement," which means nothing.
• A clear statement of whether the price is per person, per room based on double occupancy, per cabin, or per group for the entire group. This may seem obvious, but you would be surprised how often agents and operators misunderstand these basics.
• How reservations are made, how and when deposits and other payments are due, whether there is a booking cutoff date, what happens after that date, whether and when you may reduce the group size, and exactly what happens if you cancel or the operator cancels.
• The operator's deadlines for responding to complaints from you or the participants when the tour is in progress or after its return.
• The operator's duties to obtain and maintain liability insurance and to indemnify your agency against all costs and expenses, including your attorney's fees, related to participant claims arising from or related to anything that happens during the tour.
• Permission to use text and images from the operator's website, and the operator's duty to indemnify you against third-party claims that you have stolen someone else's copyrighted photos.
• Requirement that all suits take place in your nearest state or federal courts or that you arbitrate all claims locally.
In general, the smaller the local operator, the less likely it is to have its own agreement. If the operator has always operated on a handshake, I strongly recommend that you or your attorney draft the agreement for the operator to sign.
Just because you have an agreement with the operator, it does not follow that you can dispense with a disclaimer. The main purpose of the disclaimer is to deter participant claims against you: As soon as you call the client's attention to the disclaimer, the rational client (or his rational attorney) should realize that he has no valid claim. In such cases, the vendor agreement is less important.
Mark Pestronk is a Washington-based lawyer specializing in travel law. To submit a question for Legal Briefs, email him at [email protected].