Q: I know that travelers who use the airlines' own websites to make reservations have to give up all of their consumer rights, by virtue of the one-sided terms and conditions found on those sites. Similarly, when travelers rent cars using the rental company's website, they have to agree to all kinds of one-sided rules and regulations. What about hotels? Now that the major chains are trying to lure customers away from the major online agencies, will customers encounter similarly onerous terms and conditions on the chains' own websites? What if they book using a full-service agency's online booking tool?
A: Travelers who use the proprietary websites of hotel chains often suffer the same fate as airline passengers who book on the airlines' sites: They surrender all of their legal rights that they normally enjoy as consumers in the U.S.
I recently studied a hotel's online terms and conditions in connection with a major group contract that I was helping to negotiate on behalf of an agency. The contract stated that each group participant would be subject to the hotel's online terms and conditions, so I decided to peruse a few of them that were clickable from the home page.
My first impression was that the terms and conditions apply only to use of the website itself, not to the hotel stay. However, on closer reading, I saw that the disclaimers, waivers, releases and the like covered the hotel stay, too.
For example, at Hilton.com it states: "Under no circumstances, including, but not limited to, negligence, shall we be liable for any ... damages that result from the use of, or the inability to use, the site or the services or functions of the site ... or arising out of ... or failure to provide services."
Similarly, at Starwood.com, you find this: "In no event shall Starwood ... be liable to you ... for any loss or injury ... resulting from or in any way connected to ... the performance or nonperformance by Starwood ... of ... services related to this site ... regardless of whether the claim asserted is based on contract, negligence or any other theory of recovery."
In other words, if a traveler books online, he or she gives up the right to sue for any injury suffered at the property and any failure of Starwood to honor its contracts. In other sections of the Starwood terms and conditions, you give up your right to bring any suit after just one year, and you agree not to take part in any class actions.
InterContinental Hotels Group (IHG) warns: "In no event shall IHG be liable for ... any damages whatsoever ... arising out of ... the performance or nonperformance by IHG or any third-party providers of services related to this site." The reference to third parties would include franchised hotels.
Not all chains or major nonchain properties have terms and conditions that apply to the hotel stay or that you can read without going through the reservations process, but most probably have them somewhere on their websites. As you probably know, courts routinely uphold these one-sided sets of boilerplate.
On the other hand, if a traveler books using an agency's online booking tool such as Concur (formerly Cliqbook), these terms will not apply. Is this a reason to urge clients not to use suppliers' websites? The answer is obvious.
Mark Pestronk is a Washington-based lawyer specializing in travel law. To submit a question for Legal Briefs, email him at [email protected].