Q: Some of our leisure clients view special offers on our website and then call or email us for further information. When our agents make the sale, we then tell the clients to refer to the terms and conditions on our website. Those terms and conditions contain a comprehensive disclaimer like the samples that you have posted at www.pestronk.com/free.html. Are these clients bound by our website's terms and conditions? If not, how are the big online agencies such as Expedia able to bind customers to those sellers' terms? What exactly do we need to do to ensure that the clients will be bound?
A: These are extremely good questions, and as far as I can tell, there are no relevant statutes, regulations, legal precedents or scholarly articles. Nevertheless, I will try to provide some guidance on this important subject.
You have identified an increasingly common method of sales that falls between typical e-commerce on the one hand and traditional, offline sales on the other hand. Let us call these sales online-offline transactions, and let us reason from both online and offline precedents.
To bind a client to your online terms and conditions, you need to give the client actual notice of the terms and conditions, and you need to give the client opportunity to read the terms and conditions before the client is bound.
The actual notice requirement is satisfied when your agents tell the client to refer to the online terms and conditions. This can be done orally or in an email.
You can also obviously satisfy the notice requirement by publishing the terms and conditions offline in a paper copy or by adding it to an emailed quotation or itinerary.
The requirement of an opportunity to read the terms and conditions before being bound can be satisfied in one of two ways: Either you can refer the client to the terms and conditions before you close the sale, which is a cumbersome method for anoffline sale, or you can close the sale first and give the client the opportunity to read the terms and conditions later, as long as the client can cancel the sale and get a full refund if he will not consent to the terms and conditions.
I realize that some travel suppliers, especially cruise lines, require you to make a nonrefundable deposit or even nonrefundable final payment before you ever see a copy of the terms and conditions (or passenger ticket contract, as the lines call it). In my view, such a course of dealing opens up the cruise line to claims that the passenger is not bound by the line's terms and conditions, and there is an excellent precedent to support this view.
In addition to binding the client, you need to do one more thing: obtain proof that you have given the actual notice and opportunity for the client to read the terms and conditions before becoming bound. Otherwise, the client may well deny that he was given notice.
The online agencies obtain proof because, during the sales process, you have to click on an "I Agree" button in order to move forward with your purchase. The agencies then record your personal information and your computer's IP address to prove that it was you who clicked "I Agree."
In my next column, I will cover best practices for obtaining proof offline in online-offline sales.
Mark Pestronk is a Washington-based lawyer specializing in travel law. To submit a question for Legal Briefs, email him at [email protected].