Q: In last week's column, you explained that, before our online terms and conditions (T&C) can bind a client, we need to provide the client with notice of the T&C plus an opportunity for the client to read them before becoming bound (or after becoming bound as long as the client cancels without penalty soon after signing up). You also noted that we should collect proof of when we gave the notice. So if we post our T&C on our website, how exactly do we satisfy these requirements in an offline sale? What if a client has no Internet access? Do we need actual signatures? If there are several members of a traveling party, do we need to collect proof that all of them have received notice of our T&C?
A: It goes without saying that you want to avoid having to force all clients to sign your T&C or disclaimer if possible. Such a requirement would certainly deter sales.
Fortunately, for most sales, you can satisfy these legal requirements without a signature. You can put a statement in an email calling the client's attention to your T&C and stating that, by proceeding with the sale, the client is agreeing to the T&C at the Web page where you post them.
Such a statement might read, "By using our services, you hereby agree to the terms and conditions at www.abctravel.com/agreement.html, on behalf of yourself and all members of your traveling party."
If you retain copies of the emails showing the dates that you sent them, you can prove (simply by the sequence of events) that you gave the required notice and opportunity to read the T&C before the sale became final.
You do not need to give the notice to all members of the traveling party, if just one traveler pays for all. The client who pays you has implied authority to bind the entire party to your T&C.
Of course, if the client has no email or Internet access, you need to put your T&C on a piece of paper and provide your dated notice on paper, too. However, you do not need to obtain a signature merely because the client needs a hard copy.
There are four exceptions to my general rule that no signatures are required and that one person can bind his entire party:
• First, if you operate tours, either as a full-time tour operator or as a retail agency that operates a tour every so often, every tour participant should sign, as you need to call participants' attention to specific clauses such as your own cancellation penalties and other rules that will require them to act by fixed deadlines.
• Second, if you sell very expensive, customized travel (whether as agent or operator), destination weddings or honeymoons, you should get everyone's signature, given the higher-than-normal chance that there will be disputes about the quality of suppliers' services.
• Third, if the client is going to be bound right away with no ability to cancel without penalty, such as with a last-minute sale, you need to obtain a signature because the client cannot cancel after reviewing the T&C.
• Finally, for corporate travel, an authorized representative of the corporation should sign an agreement or profile that incorporates your T&C and binds all the company's travelers.
Mark Pestronk is a Washington-based lawyer specializing in travel law. To submit a question for Legal Briefs, email him at [email protected].