My Jan. 6 column on "open booking" generated lots of controversy in online forums and lots of questions from Travel Weekly readers. Here are the most common questions and my answers.
Q: Don't travel management companies (TMCs) have online booking systems that make travelers waive their rights to sue the TMC and suppliers for any loss or injury, just like the public websites do?
A: No, they don't. I advise dozens of TMCs, and none of them has online terms and conditions remotely similar to those that I quoted from Expedia: "In no event shall the Expedia Companies or ... their respective suppliers be liable for any ... damages arising out of, or in any way connected with, your ... use of this website ... whether based on a theory of negligence, contract, tort, strict liability, consumer protection statutes or otherwise, and even if the Expedia Companies ... have been advised of the possibility of such damages." As I noted, corporations do not allow their vendors to have such waivers in normal procurement contracts.
Q: If travelers use a TMC's online booking tool, such as Concur Travel or GetThere, don't the travelers have to agree to the vendor's terms and conditions?
A: There are no terms and conditions for travelers and travel arrangers using those tools, as the relevant terms are in a negotiated contract between the corporation and the TMC, or in some cases, the corporation and the online vendor itself.
Q: If a traveler uses a Concur Travel or a GetThere and makes a direct-connection reservation, is the traveler and his corporation agreeing to the directly connected supplier's online terms and conditions?
A: As far as I know, the direct-connection bookings through those online bookings systems don't require agreement to any waivers or the like.
Q: You quoted from the terms and conditions of Expedia and Hilton, but do the other public websites that travelers use have such onerous terms, as well? What about the airlines?
A: Yes, they all do. The airlines are a special case, as federal agencies and treaties regulate liability limits and waivers for airline service. However, the waivers that relate to use of the website are nearly as onerous as those of any supplier.
Q: Wouldn't a corporation's attorneys insist that the public, online agency have a negotiated contract that supersedes the website terms and conditions?
A: Since the concept of open booking or Managed Travel 2.0 is that the traveler can book anywhere, it follows that the corporation can't possibly negotiate contracts with every travel website provider. Most businesses do not have the negotiating power to get the sites to alter their terms anyway.
Q: Aren't these sites' terms and conditions just standard language that you can find everywhere these days?
A: For consumer websites, they are standard and ubiquitous, but this does not make them any less objectionable.
Mark Pestronk is a Washington-based lawyer specializing in travel law. To submit a question for Legal Briefs, email him at [email protected].