Q: Our agency offers one of the online booking systems for corporate accounts [examples include GetThere, ResX, Cliqbook and Rearden Personal Assistant]. We now have quite a few corporate clients using the system. The vendor recently asked whether we have contracts with each of these accounts, which I found to be an odd question. In many if not most cases, if we told a prospective corporate client that it must sign a contract before its employees could use the system, the account would refuse, and we would lose the business. Are we required to have a written contract with each corporation that uses the system? If so, what could the vendor do if we don't get them?
A: I have reviewed the standard contracts that vendors of five of the most popular online booking systems require travel agencies to sign. In each such contract I found a section not only requiring that you have a written agreement with each corporate account that uses the system but also spelling out what that agreement must contain.
For example, one standard contract states that the vendor "grants [the travel agency] a ... license to use the [system] ... for clients ... pursuant to a client agreement." It then goes on to detail the extensive minimum requirements for such agreements, including clauses that:
• "Disclaim, to the extent permitted by applicable law, [the vendor's] liability for any damages."
• Require the client to acknowledge that the vendor "does not include any guarantee regarding the quality or performance of the services (e.g., travel, hotel, car rental, package, ship) that may be procured through the system or the sufficiency of the providers of such services in meeting the requirements of the client."
• Make the client responsible for "payment of any and all products or services (and associated service fees) ordered or purchased through the [system] including, but not limited to, agent-assisted booking services, any purchases made using client's centralized or group credit card including, but not limited to, purchases by its employees or agents (former or current)."
Another, GDS-affiliated vendor's contract allows the vendor to cut off service to a client "if a travel supplier provides any documented evidence of activities contrary to the supplier's applicable terms and conditions of sale, including without limitation, speculative, false or fraudulent reservations or any reservation in anticipation of demand, or ... unauthorized use or misuse of the services."
You really do need to try to make your corporate clients sign agreements with the clauses required by your vendor. If you don't, then your vendor can terminate your agency's agreement due to your breach, and if a corporate client sues the vendor, the latter will certainly look to you for reimbursement of any losses it suffers.
It is important to realize that these clauses are written to protect the vendor, not your agency, from your clients' claims. In fact, the existence of those protections makes it more likely that the client will sue your agency if the client suffers a major loss due to a system malfunction, since the vendor is protected but you are not. Therefore, you need to be sure to include your agency as an additionally protected party in all these disclaimers and protections.
Mark Pestronk is a Washington-based lawyer specializing in travel law. To submit a question for Legal Briefs, email him at [email protected].