Mark Pestronk
Q: At my agency, we organize independent tours, operate several group tours per year and sell lots of other tour operators' products. We try to have everyone sign our standard disclaimer, but sometimes it isn't practical, such as when we think that the client might back out if we insist on a signature or when someone pays in full at the last minute. I am really unclear about whether and when we really need the client's signature anyway. What's your advice?
A: According to court precedents, you need to show that the client had reasonable notice of your disclaimer and a reasonable opportunity to review it before becoming bound. If you cannot prove this notice and this opportunity, then a court will probably not enforce your disclaimer.
How do you prove notice and opportunity?
I have devised a hierarchy of steps that you can take, going from the legally safest scenario to the riskiest. The closer you can get to the top of the hierarchy, the more likely it is that a court will enforce your disclaimer.
At the top of my hierarchy is getting the signature of every traveler 18 years or older and getting it before the sale is final. If you wait until the client has paid a deposit, you run the risk of having a court declare that your disclaimer agreement is not binding on the client.
Second best would be getting an email or other written communication from the client expressly stating that he agrees to the terms and conditions that you sent.
This is not quite as good as a signed disclaimer, as you might have difficulty proving which document the client agreed to, unless the text of your disclaimer were itself in an email that the client was required to acknowledge, such as an invoice.
Third best would be getting the client to click "I agree" at the end of the disclaimer posted on your website. Although an electronic assent is theoretically as good as one in ink, you could have a hard time proving that the associated IP address was truly one that belonged to the client, unless you brought an IT expert to court to explain the link to the judge.
Fourth best, and bordering on risky, would be merely posting your disclaimer on your website, reminding clients of its existence, urging them to read it and then referring to it when needed, such as when a client incurs cancellation charges. The client will deny having ever received any notice at all, and your proof would consist only of testimony of what your usual business practices are. In that case, a judge might have a hard time believing you.
Last, if you merely post your disclaimer on your website and never refer to it during the sales process, it would be nearly impossible to prove that a given client had notice of its terms and the opportunity to read it before becoming bound.
The airlines get away with this practice because the federal pre-emption provision of the Airline Deregulation Act of 1978 prohibits courts from imposing their own rules on what constitutes a valid contract between the carrier and the passenger.
Agencies and tour operators, however, have no such legal protection.