Mark Pestronk
Q: Our agency is organizing a tour for next year. We want to have participants agree to a set of terms and conditions that will help us deter claims, lawsuits and chargebacks to the maximum extent possible. Can you give us some tips to maximize such deterrence?
A: What follows is the best advice I can give you based on my 50 years' experience representing travel agencies and tour operators. My advice will probably seem cynical and even harsh to consumers, but my role is to protect my industry clients to the maximum extent possible. This approach frees you to provide the best possible service without fear of being sued.
• First, be sure to specify that your terms and conditions are a contract, not just some information that participants should know. So, label the document "Your Agreement with ABC Travel" not just "terms and conditions" or any other title that might lead a participant to conclude that the document is just informational.
• Don't incorporate the details of the tour into the agreement, so a participant cannot claim that you breached your contract if, for some reason, you do not provide every service listed in the tour description. If a prospective participant points out this omission, you can make an exception for him by amending your agreement to state what is included in the tour, but you do not need to do so for every participant.
• Require that all claims against you be brought to your attention in writing within 30 days after return of the trip. By the time disgruntled participants get around to retaining an attorney, it may already be too late to sue.
• Make it hard to sue you by requiring that all suits by brought only in the city or county where your office (or home, if you are home-based) is located. If the participant who lives 2,500 miles away sues you in his home state, you can almost certainly get the case thrown out.
• Do not provide for mediation or arbitration of disputes as a prerequisite or substitute for court litigation. In my experience, mandating mediation or arbitration gives participants the hope that they can get money from you without the expense of an attorney, so they are more likely to tie you up with frivolous claims than they are if they have to go to court.
• Be sure that your cancellation and refund condition are crystal clear and leave no room for ambiguity, as a court will construe any unclear terms in favor of the consumer. For example, don't say, "All refund requests must be made at least 60 days before the trip." Instead, say, "We must receive your written refund request at least 60 days before the trip."
• If you are the credit card merchant, then right above the client's signature or online location where he clicks "I agree," insert, "I hereby agree to the foregoing Agreement with ABC Travel, including the cancellation and refund terms." These magic words will help you win chargeback attempts.