Q: Our agency has a website that describes our services and contains our address, phone number and a contact form for prospective customers to fill in. Many clients find us through our website. You have offered free sample disclaimers at www.pestronk.com/free.html, so if I post the one called "Disclaimer for Invoice/Itinerary or for Online Terms & Conditions" on our website, will our agency be covered for sales where the client finds us through our website and calls or emails us?
A: No, you won't be covered because merely posting a disclaimer on your website cannot legally bind a potential, non-online client. You have to take the further steps of getting the client to agree to the disclaimer and maintaining evidence of that agreement.
In non-online sales such as yours, there are at least five ways to get evidence of that agreement. In order of likelihood of prevailing against a client who denies agreeing to the online disclaimer, they are as follows:
• Get the client to sign a form stating that he or he agrees to the disclaimer and display a link to the disclaimer above the signature line. This is what many tour operators do when they put a signature line at the bottom of a reservation form.
The signature can be a manual one on a piece of paper that is scanned and emailed or faxed back to the seller, or it can be a DocuSign-type online signature. Both of these methods are acceptable.
• Place an "I Agree" button under the disclaimer and direct the prospective client (by phone or email) to go online to click the button after typing his or her signature.
The trouble with this approach is that it might deter some clients from doing business with you because they didn't want to make an online purchase in the first place.
• Send an email (with the link to your online disclaimer) asking the client to agree by sending you a return email stating that he or she agrees. This approach may be less successful because emails get lost or deleted all the time, and you might well have purged the email before the statute of limitations runs out.
• Do what some corporate agencies do: Add a manual or typed signature at the end of a traveler profile. The problem here is that many agencies do not use profiles for one-time or even returning clients, especially leisure clients, and you should have a consistent system for all clients.
• You can add a note to your emailed confirmation stating something like this: "By accepting these travel arrangements, you agree to our terms and conditions at ..." and provide a link to the disclaimer without requiring a response. This is what many suppliers do, and this approach often holds up in court, but you are taking a chance that a judge might find that there was no agreement.
By the way, you don't need to go through any of these steps for repeat clients after you have done one of them once.