Transcription
Hello everybody, welcome back to the first Master Advisor for TMR for 2025. I'm Dan McCarthy. I'm really so happy to be back with you to kick off the series for the new year. Um, happy to have you all on our new platform. I know there's a different look and feel to Master Advisor with this, but one thing that hasn't changed is we're going to be here every couple of weeks. Um, the chat is going to be open. I see a ton of comments already in there, so any questions or comments, go ahead and drop them in there, and we'll pull them on screen. We'll get them answered as we go along today and as we go along with all our other episodes this year.
Um, again, so happy to have you all here. We're going to get right to our guests pretty soon, but I just want to say thank you for joining us. Thank you for jumping over here with us. We're really excited to have you. We have a great guest today. We're going to be talking terms and conditions, but I have a few announcements I just want to run us through first, and then we'll go ahead and get into it.
The first thing is that our next episode will be on February 20th. We're going to be talking about how to market to affluent clients. I'm really excited for that one. Again, we know the luxury market is growing for so many travel advisors, so we love to talk about sort of getting into that market. Um, we'll get the link to register out to all attendees sometime over the next few days, but if you are, or Tom McCarthy dropped it in the chat right now. Um, if you are around February 20th, we'd love to see you here. And, uh, yeah, you can register right there with Tom McCarthy's link in the in the chat.
I also wanted to drop the link to our YouTube out there in the chat as well, just because, again, we're on a new platform, doesn't mean that our content host will change. Um, this video, just like all of our videos in 2024 and prior to that as well, will be uploaded to that YouTube page later today. I know there's going to be a lot of requests to rewatch this episode, and you'll be able to do so over there either later tonight or tomorrow morning. So if you have a second to go head over there, sub to the channel, like the video, subscribe. That helps us a whole lot. Um, it'll also be the place where you can rewatch this video, which I know we're going to get a ton of requests to do so. So YouTube link is in there. The link to the next, uh, for the next section is in the chat. Um, and outside of that, I want to go ahead and get started for today.
Um, I'm really happy to welcome Tom Carpenter to the program. Tom is an attorney in private practice, represents clients in the arts, entertainment, media, and travel industry. He has over 30 years of experience. He serves on The Advisory Board of Uniglobe. He works with The Travel Institute as well, and he participates in the International Forum for Travel and Tourism Advocacy. Uh, he is also the founder of Huckleberry Travel. And, uh, we're Tom's here to talk to us a little bit about terms of conditions and what we need to know about that. But first, Tom, I just want to say thank you so much for jumping on here. This is really a hotly requested topic, and we're so happy to have you with us.
Yeah, well, it's, it's been a little while since, um, uh, since we talked, uh, the last time, but, uh, I'm very grateful for the work that, uh, TMR does to, um, support, uh, travel agencies. You know, you're really the only publication that's really geared toward, um, toward protecting travel advisors and travel agencies and giving them the information. There's a lot of other industry trade publications out there, but, um, you guys are for us, so that's fantastic.
Yeah, I really appreciate that. And I already see some comments, uh, in the chat, which Tiffany, I promise we'll get to yours, um, in a second, but in a second. But Tom, I know you have a disclaimer you want to share with us before we get started, and I just wanted to give you the opportunity to do so.
Yeah, so, um, so actually, to Tiffany's question, uh, I'm, uh, I'm not able to give specific legal advice on this webinar. This could be viewed as attorney advertising, but I, I'm here to talk generally about, uh, about issues and not to provide legal advice. By participating in this webinar, we're not creating an attorney-client relationship between you, uh, your business, and my, and my law practice. Um, I do consultations for, for people, uh, complimentary consultations. So, um, we'll later on in the webinar, we'll put information about how you can contact me if you want to ask a specific question or set up a consultation call. But, um, and lastly, just to say, uh, if I say, you know, this is what a court has held, just because a court holds, held something one time doesn't mean that the next time they look at the issue, they're going to decide it the same way. So prior outcomes don't always guarantee future results. So, all right.
All right, cool. All right, so there's four main questions we want to get you today, and I know there's going to be a lot of sub-questions, a lot of comments, and Tom, I might pull some in from the chat. And again, if, if they fall into the category like Tiffany's, you can just say so. Yeah. Um, but yeah, but the first one I want to mention is, or I want to ask is, basically, those the starting point for all these discussions, the starting point for so many agency owners or advisors thinking about this is, why as a travel agency owner or a travel advisor, why do I need terms and conditions?
Yeah, so, um, terms and conditions documents are really not optional anymore. Um, you really need one in order to run any, any travel business. The terms and conditions document, um, is really the baseline for all of the trips that you book for your clients. Um, whether it's an FIT trip, whether it's a, um, a cruise, uh, if it's a group trip, um, the terms and conditions document is something that's contractual in nature between you and your client, and it governs the terms and the conditions under which you are booking travel for your clients. So it's an agreement that's contractual in nature because it's contractual in nature, you actually need your clients to, um, sign on to it. But there are a lot of things that go into, um, a terms and conditions document, everything from, um, mandatory disclosures. So like when you sell an airline ticket, the DOT has all these things that you're supposed to tell your clients, um, so that you can comply with those regulations. Um, uh, advisories that courts have, um, uh, have told you you need to make. So there's, so a terms and conditions document is really designed to protect you, um, in case there's any kind of dispute that you have with your client. Um, you've got a document that they've agreed to, which, you know, if you need to, hopefully you need to, but that you could go into court and show a judge and explain what the issue is, and the court would enforce your terms as though it was a legally binding agreement. So, yeah.
And I guess the other, like, that's the bottom line, or the other side of things is, without, without terms and conditions, advisors just, there's, there's an enormous amount of risk placed on advisors and placed on their businesses without these legal protections, without these terms and conditions in place.
Yeah, and I think a lot of times when people get into the industry, they don't realize the travel really is a high-risk industry. You know, there are all sorts of things that can go sideways when you're planning trips for people. Um, you know, you could have, uh, I mean, just, I mean, if you've been doing this for any length of time, I'm sure you've encountered some of these things, but it could be anything from, you know, your client shows up at the airport and they don't have a passport, and then they blame you because you didn't tell them that they needed a passport. Well, you know, they should have known that, or maybe they show up with the passport card instead of the passport book. You know, um, if you've made those advisories to your clients and your terms and conditions document, that's going to protect you. But the other big reason that people need a terms and conditions document is for, um, credit card disputes. So, um, credit card companies are now requiring that in order for you to win a chargeback dispute, you have to have a credit card authorization that, you know, I think a lot of times when people try to reverse a credit card charge, they think they're getting their money back from the credit card company. They don't realize that what they're actually doing is they're reporting it as a fraudulent charge. So if you use somebody else's credit card to make a payment with a cruise line or a tour operator or a hotel, it's sort of like the client's accusing you of credit card fraud if they tried to dispute that charge. So, um, so the credit card companies are now requiring that you have to have them agree to your terms and conditions as part of that credit card authorization, and you have to use specific language, um, when, when you have them agree to that. So if you don't have a terms and conditions document, no way you're going to win a chargeback dispute. But, um, that's just one, one of the many reasons that you're going to need one because it's, um, it's intended to protect you across the board when you're working with your clients.
Yeah, and I, and I know COVID sort of promoted, not promoted, but COVID produced a lot of these issues with the credit card chargebacks. It seems like consumers got used to using credit card chargebacks when they had issues with their travel, and it, it has become sort of a huge issue for so many advisors and so many agency owners, and I don't think a lot of them realize that this can.
And yeah, also, also suppliers, you know, I mean, I think, um, during the pandemic, so many suppliers had very generous and flexible cancellation and refund policies, and, and coming out of the pandemic, people were just like, oh, well, I don't, if I cancel or change my plans, I don't have to pay for that. Um, and so, um, you know, file that under, you know, no good deed goes unpunished, right? The industry created this, um, very flexible system during the pandemic, and then coming out of that, it's really hard for consumers to understand that, oh, I can't just change my mind at the last minute and not have to pay for it. Um, so, um, but again, you know, your terms and conditions document, um, is probably going to need, well, it is going to need a provision in there that advises the client that, um, they may not be entitled to a refund if they want to cancel or change their plans, and if they do want to change their plans at last minute, you'll do your best to help them, but you're not making any promises. So, um, so that's, um, you know, that's really important.
Yeah, I see a ton of questions in the chat. Um, I, I want to move on to the next, our next set of questions because I think it'll, your, your response, Tom, will answer a lot of these questions in the chat. And if anyone, again, I'm, I'm going to do my best to sort of sort through these and grab which ones we can grab along the way. But the bottom line for that one is, terms and conditions will protect you. It'll protect you from your consumer, it'll protect you from credit card chargebacks, it'll protect you from liability going forward, and that's why it's so important.
Um, I guess the next one I want to go on to is, what sort of things go into terms and conditions? What are the key components that advisors should have in mind when either they're building them themselves or they're working with a professional to build, to build a set for their agency?
Yeah, so, um, the first is legally required disclosures. So I kind of mentioned this earlier. Um, the Department of Transportation, um, you know, the hazardous materials and insecticide notice disclosures that you're supposed to make to clients whenever you sell an airline ticket. You know, the airlines always do that for you, but technically the DOT regulations say that the agency has to do that as well. So if you are selling air travel or if you're selling travel that has an air component and you're not making those disclosures, you are in violation of the DOT regulations, and the DOT has gone after agencies for that. So putting it into your terms and conditions document is a simple and easy way for you to check that box, make those notifications, you don't have to worry about it. Seller of travel registrations, if you're a hosted advisor, disclosing, uh, the seller of travel numbers, you can put that in your terms and conditions. So those legally required disclosures, I think that's one category of things.
Um, the other types of disclosures that you should make are, I consider these to be kind of advisories, which are all over the place. So I mentioned the passport thing. Um, you know, you wouldn't think that you have to tell somebody you need a passport to go to France. It's probably not something that you say to each and every client that's going to France, but you know, if you don't say it and then there's a problem, you haven't made that advisory. And there are court cases out there that say you have to disclose those things. Um, one of the advisories that I, uh, that I put in terms and conditions now, um, when I draft them, uh, an advisory that people can't transport, possess, or use illegal drugs when they're traveling because now that cannabis is legal in so many places, lots of people think, oh, I'm going to take it with me on vacation, but, um, if they try to board a cruise ship or try to board a, uh, an airplane, they're going to have a problem. They'll be denied boarding, and you don't want them to say, well, my travel advisor never told me I was going to have an issue, and why didn't they tell me that? And then there's a dispute, and then if they are getting their money back and they're out a lot of money, they're probably going to sue everybody and anybody, and you may get attached to that. So those types of advisories are really important. You can put all of those in your terms and conditions document. When your client agrees to those terms and conditions, they're agreeing that they've been notified of those things. And, um, and so that, that's a lot of the boilerplate that goes into, goes into documents.
Um, I, you know, the cornerstone, I think, and this is why I'm putting this in kind of in the middle of all the stuff, provisions that relate to your role as a travel advisor versus your role as a travel agent. Because, you know, a lot of times people say, oh, I'm not a travel agent, I'm a travel advisor. Well, actually, you're both. So as a travel agent, you are the booking agent for the suppliers. You have a fiduciary obligation to those suppliers. You're not supposed to undercut their pricing strategy unless you're Costco, in which case you do it all the time. Um, you're not supposed to, um, misrepresent their product. So, um, but at the same time, as the travel advisor, you owe a duty of care to your clients to give them your best, um, professional advice. So being in that place where you have obligations that flow in two different directions is a little bit of a complicated place to be legally. And so you can put in your terms and conditions that the client understands that your role is as the booking agent for the supplier, and that you are not the source or the provider of the, um, things that you're selling.
Right. And, and that gets into the next category, which is limitations on liability, um, and liability waivers. So, um, uh, one of the most important parts of a terms and conditions document is something where your clients are agreeing that because you are the booking agent and not the supplier, that you are not responsible for anything the supplier does or fails to do that leads to damages, injury, or loss. So that could be anything from, you know, the helicopter crashes onto the glacier, your client gets horribly injured, um, when they're visiting Alaska on their excursion. Well, you don't own the helicopter company. That pilot of the helicopter is not your employee. You're not responsible for maintenance on that equipment. Um, and so, um, your clients can agree in your terms and conditions document that they cannot and will not be able to come after you for that because that's a supplier issue, and they understand that you're the booking agent. It could be something more simple than that, like, you know, you book your clients at a resort, they were supposed to have an ocean view room, they got put in the back by the dumpsters because the hotel was oversold. They blame you because you put them at that resort. So there's just a wide range of things. Um, supplier policies, you're not responsible for that. Supplier bankruptcies, if a supplier goes under and leaves you holding an empty bag, your clients can agree that you're not responsible for those supplier bankruptcies. So that's a big category.
Um, and then, uh, force majeure, extreme weather events are happening more and more frequently these days. And, um, force majeure, some people call that the act of God language. That's also important. So like a big storm rips through your community, it knocks out your power, you don't have an internet connection, and you missed a bunch of payments. The force majeure language says you're not responsible because it was out of your control and you couldn't do it. So those are all, like, I mean, that, I feel like I'm been yammering on about this, but like, uh, those are all important things that can go into your terms and conditions document. And that's why, um, but I also, I will, I will also say, I do, and this goes to the question about having something that's custom for your business. If you have any kind of special specialization or a niche, or you're marketing yourself out as an expert on something, I might put something different in your terms than I would in somebody who's just a generalist doing things generally. So, so you know, if you do a lot of, like, I have a client, um, who does a lot of travel for, um, she's a specialist in gluten-free vacations. And so for her business, we've got a provision in there that says that if there's a restaurant or a cruise line that doesn't adhere to the dietary restrictions, that the agency is not responsible for that. Now, you know, the general language is going to be fine for most people, but if you're telling the world I specialize in this type of food or this type of food tour, you're going to want to have something in there that makes it clear that you don't have specialized knowledge about what happens in that kitchen because you're still the booking agent. So, um, having something that is custom is, in my view, much better protection than something that you just got from a subscription service or something that was drafted that you pulled down off the internet and thought, oh, this looks good. So, yeah.
And I imagine, like, the pool of dangers or the pool of liabilities you might have as someone selling corporate travel versus someone selling adventure travel versus someone selling something else entirely. Um, we interviewed an advisor who put together sober trips, like you mentioned the gluten-free things. I imagine a lot of the liabilities are sort of along the same lines. They, they're different pools of, of worries, I guess.
Yeah, or think about wellness travel, right? Like if you, if you're sending somebody to a spa and they're receiving treatments, like what if those treatments, what if, what if they don't get well? Like what if those treatments actually aggravate their condition and they come to you and say, well, you're an expert on on wellness travel, you should have known that I was going to be traumatized by that spa treatment that was supposed to be rejuvenating and instead I wound up in the hospital, right? Yeah, so like for somebody who specializes in wellness, I'm going to put something different in there and their document.
Um, I see a ton of questions. I start, I put aside a few of them. I want to get to in a second, but I guess just working off the customization, Tom, what about in the US here? What about the different states? Does that impact the need to customize? And also the different agency, host agency, consortia? Does that impact the same thing, the need for customization?
Yeah, so, um, so not so much the, the host and the consortia. I think, you know, you're going to want to dis, if you're using your host agency's seller of travel information, you're going to want to have that in there. There are some host agencies that require you to display it using very specific language, which is fine. Um, I have a lot of clients who are hosted by KHM, for example, and they've got a very specific blur that they want to be used. Um, but, um, states are somewhat important because there are some states where waivers are not enforceable. Lawyers call them exculpatory waivers, but, um, if you live in a state where waivers aren't enforceable, I would put in your terms that the laws of a neighboring state apply. So let's just take, um, Virginia, for example. Virginia is one of those states. So, uh, exculpatory waivers aren't enforceable in Virginia. They are enforceable in, in Maryland. So I might put in your terms that if the client is going to come after you, they have to do it in your local Virginia courthouse, but that Virginia court has to apply Maryland law. So those, those types of things, um, are things that you're not going to find, you know, if, if you're just downloading something off of the internet, um, or if you're subscribing to a service that's giving something out of the box, you're not going to have somebody giving you legal advice to, you know, put those things in there like that.
Okay. All right. So let me tackle some of these questions. Um, a few of them came up, including this one from Kathy, basically, how long are these terms and conditions typically? I know you, I know you just explained to us what makes up a terms and conditions. I think a lot of people imagine a very long document.
Yeah, and a lot of, you know, and people really want to, um, I understand why people want to keep it short, and, you know, as an agency owner myself, I don't want to be rubbing my client's nose in 11 pages of legal stuff, right? Unfortunately, you kind of need all 11 pages in there to actually protect yourself. So what I suggest doing is, um, rather than sending your clients 11 pages of terms and conditions each and every time they book a trip with you, because nobody does that. Like when you buy stuff on the internet, you're agreeing to their terms and conditions. You probably never saw it, you didn't even realize you were doing that. So take your terms and conditions document, the longer document, upload it to your website, tuck it away someplace, and then use a client agreement or better yet, a credit card authorization to get your clients to agree to your terms and conditions each and every time they make a payment, every time they book a trip with you. They can just check a box, I agree to your terms and conditions, which you're located at www.wherever you've posted it. Whether they go to your website and read all 11 pages is up to them, but checking that box, you don't have to print it out, get them to sign it with ink on paper, um, you don't even have to attach the full thing as long as they can find it and it's conspicuous, um, if they check a box on a form and agree to it that way, um, that's the easy way to do it. And so I, I get why people want it to be short, but trust me, you don't want it to be short, you want it to be comprehensive.
So, um, so we have a question from, from Sheryl Ratcliffe, who wants to know about updating, uh, terms and conditions or signed or have signed with every updated invoice, each time they make a payment. So I imagine if a single client is making several different payments for one trip, do they need to be checking terms of conditions or signing terms of conditions with each payment?
Yeah, so during the pandemic, the, during the pandemic, the credit card companies changed the standard for how their, um, how their resolving chargeback disputes, and they now require that you need an authorization for each and every charge. It has to say how much they were authorizing, what the payment was for, uh, the date that it was authorized, and you have to use very specific language, um, in there. They have to agree to your terms and conditions, and you have to call their attention to the cancellation and refund policies at the time the client authorizes the charge. And if you don't do all of those things, um, in the right way, then the credit card company is going to deny that, uh, it's going to uphold the chargeback, and you're going to wind up having to pay for it out of your own pocket. So, um, so the language of the authorization and getting one each and every, I'll give you an example, and this is like a horror story. Um, I had a client who was, uh, uh, selling an airline ticket, a business class ticket, and she had a, and the client texted her and said, how much is it if we go business class? And the client said, uh, that ticket's $6,000. The client texted her back, great, go ahead and book it. You got my card. The client, or the, um, travel agent booked four tickets, business class, at $6,000 each, because that's what a business class ticket to Europe costs, right? So like, putting aside what universe can get four business tickets for $6,000, but the client didn't authorize that. And when they saw that they had $24,000 of airline charges on their card, calls, calls back the, uh, agent that says, why are there four charges on my card? I was charged four times as much as I should have been. The agent said, well, there are four of you traveling. For I told you $6,000 for a business class ticket. Yeah. And the client said, well, I didn't know it was per ticket. You told me $6,000 and I said, that's great, book it. And so now there's a dispute. And so if the credit card, uh, hold, if the cardholder calls her bank and says, that charge was not authorized, I did not authorize $24,000 of charges on my card, the agent's going to, there's going to be a debit memo, or even if you're not on a, um, on a GDS, you're going to have to pay for that. The agent's going to have to pay for that. And so, you know, maybe you can work it out with your client to, to, you know, cover part of that, maybe you can file an E&O claim, but if it's a misquote, you might not even be covered by your E&O. So, so really, you know, I get it that people are like, my clients are not going to want to authorize each and every charge. They, they, that's inconvenient for them. But, you know, a technology tool is going to be your friend. If you're using something like TravelJoy or Thorn or Travi or one of the other CRM functions, you can take a credit card number securely, you can line up the automated payments so that they get an email saying, hey, your final payment's due in 10 days. They click through, click, click, click, it's secure, it's encrypted, and you've got the magic language to protect yourself that's in there. So there's no way if a client has has authorized it and agreed to your terms and conditions and you're using the magic language that the credit card companies have, you're not going to have to pay $24,000 because you're going to be able to defend yourself against that dispute. So I mean, that's an extreme example, but I, I hate to tell you that like every week I have somebody coming to me saying, I've got a problem because my client didn't agree to my terms and conditions, or I didn't get an authorization, and, uh, and there's not a whole lot you can do if you don't have an authorization to, to provide to the supplier or the, um, or the credit card company.
Yeah, um, and I, and I think people need to, people some people don't realize that the CRMs, like you mentioned TravelJoy, Thorn, and things like that, they do provide a helping hand in this, because I know a big, a big part of this task is not only creating the terms and conditions, but like you mentioned, Tom, it's getting them signed, getting them clear and concise, or clear in front of your client, and keeping track of that seems like just as important of a task as actually designing terms and conditions.
Yep, exactly, exactly. All right.
Yeah, and, and the, you know, I'll just say this, like, I, I know the people at Travi, I think they're, they are great people. The developers of Thorn actually are clients of mine, so they're using my magic language for credit card authorizations. Um, in my business, I use, uh, TravelJoy for a lot of things. I think TravelJoy is a great tool. Um, and there are others, Vacation Creation, Vacation CRM, uh, there are lots of different tools out there that, uh, like people, and people often ask me, what's the best one? And I say, the best one is the one that you're going to use. So, you know, most of them offer free trials. Check them out. If they frustrate you, move on to the next one. But, um, you don't want something that is going to frustrate you. You want something that you're actually going to use and that's going to be a good help to protect you.
Okay. Um, so I'm going to try to grab as many questions as we can for the next, I think, 15 minutes before we wrap up. We think we've been through the four main points, which is why do I need terms of conditions? What goes into the terms of conditions? Do terms and conditions need to be custom? And then how do clients, how do you get your clients to agree to the terms and conditions? But I see there's a lot of, there's still a lot of questions remaining. One, one question I thought would be a good one to ask is, um, how often are we updating our terms and conditions? Is that something you do on an annual basis, or is it, it gets more complicated than that, is more things arise during the year? Um, we know, like, the environment is constantly changing when it comes to travel. I'm just curious, like, what?
Yeah, yeah, there, there are, um, there are always things that can come up. I mean, I have a strong view that you want your terms and conditions to be stable and consistent. You don't want them to be constantly changing. Um, uh, last year in April, I sent around language to my clients, uh, because of the new DOT airline refund rule. Um, you can't really get out from under that, but there was some clarifying language that I sent around to people. Um, if I become aware of something, I just send that out to my clients automatically. I don't send invoices with those with those updates. Um, but, uh, you know, if I say, if something changes in your business, you develop, you know, like, I don't know, somebody calls you up and says, we want to book a bunch of skydiving trips, and you're like, holy smoke, am I covered for that? Well, you might want to look at your terms and conditions to see if you've got language to cover you for those things. Um, but, uh, I would say, you know, maybe look at it, maybe look at it once a year. But, um, you know, if you, if you have a relationship with an attorney, um, you know, you, you should be able to call your attorney. I mean, I'll just say how I work with people. If somebody has a question about whether they're covered, they can call me. If it's a simple question, I can answer with an email. I don't turn on my clock for stuff like that. Um, if, if I've done your terms and conditions for you, and it's a minor tweak, I don't send invoices with that. If it's a, a change in the regulation, I don't send invoices with that. If you need me to blow up your terms and do the whole thing over from scratch, I would send you a bill for that.
But I saw one, somebody was asking, what's the, what's the cost? Um, yeah, that question comes up all the time. I try to make terms and conditions documents affordable for people. I don't, I know that people don't have unlimited resources to throw at these things. I do them on a flat rate. Um, I include counseling on how to implement the documents, put it into your workflow. Um, you know, I try to keep the cost around the, around what the commission would be on one good solid premium, like upper mid-range booking. Um, but it, my rates also vary. I have, um, I, uh, I have discount, I'm part of the ASTA attorney referral program. I have discounted rates for ASTA members. Um, there are a couple of host agencies that I have, um, arrangements with where I, um, have discounted rates for them. But, um, but, uh, you know, it's, it is a cost of doing business. And, and I think, you know, it's unrealistic to think you're going to start a travel business in a high-risk industry and not have to invest in that, in that business. So, um, you know, the, the thing that really concerns me on that is I see, you know, there's some host agencies that are papering social media with, you know, join our host agency and you can travel the world for free and make money in your sleep. And, and you don't have to spend a lot of money. And I just think that that is not good for the industry. But, anyway.
Um, Tom, you mentioned the ASTA attorney referral program, and I, I assume that's as simple as what it sounds like, but it's ASTA provides a resource where if agency owners or advisors want to find a lawyer who can do this, who can help them with this, that's a program that provides vetted lawyers, vetted names where advisors can reach out to, right?
Yeah, absolutely. And there are some other attorneys, um, you know, if I rub you the wrong way and you want to hire somebody else, that's, um, but yeah, there, there aren't very many attorneys in the travel and tourism industry who represent small businesses. We all know each other. We're all on the same page with, you know, how things work. So, um, you don't, you don't have a bad choice with any of us, to be honest.
Okay. Um, all right. So we went over how often they should be reviewed. We have another, um, so Cindy has a question, and this, I'm not sure if this is something you could answer, but if she wants to know if I'm affiliated with an agency, should I consider adding a separate section for my own terms and conditions? I assume she's using, um, an agency's own terms and conditions.
As I, yeah, so if you're an IC of an agency, if you are selling under their brand, under their name plate, so, uh, so if you're with, um, you know, Destination Dreams Travel, I'm just making that up, right? Um, and you're Cindy Prince, an independent contractor of Destination Dreams Travel, you don't have your own website, you don't have business cards that are separately branded, then you should be using your agency's terms and conditions. Because, um, if I were an agency owner, I would not want my independent contractors who are selling under Huckleberry Travel to be using something, because I'm going to be the one that gets sued if one of my ICs messes something up. I want them to be using my terms and conditions. If, on the other hand, you are an independent contractor and you have your own branding, your own name plate, if you are Cindy Prince Travel, um, but you're selling using somebody else's IATA, but you're not using their branding, you've got your own website, you've got your own business cards, you're going to need your own terms and conditions because your business is the one that's going to get sued if something goes wrong. So, um, hope that distinction makes sense.
Um, all right. So we have one from Teresa, and this goes back to what we mentioned about you might need specific things in terms and conditions and specific, a custom terms and conditions if you do a specific niche, but she says she does corporate, she has one corporate client, but most she does leisure. How should she approach terms and conditions from that side of things?
Hi Teresa, great to hear from you. Um, so yeah, for for corporate clients, uh, you, you may have a contract with your corporate client that, uh, governs how things work, but probably you're going to have a system set up for how they, um, how they send requests to you, how you, how things get approved. And, uh, and so, um, I think, you know, it wouldn't be a bad idea if you do have a contract with that corporate client to have a provision in there that says all bookings are subject to the agency's terms and conditions of booking, which are, in that case, you might want to print it out and attach it as exhibit A to your contract. Um, there are, I know there are some people who don't have contracts with their corporate clients and they just have a rate sheet, like if you're on a GDS and you're, you know, you're like, it's a, it's $50 for, uh, an after-hours request, and it's this and that, like for those things, you might also want to just put on your rate sheet that all bookings are covered by your terms and conditions.
Okay. Um, all right. So I guess this goes back to the ASTA referral program. And Tom, we'll, we'll, we'll put your email in the chat, I think, a little later once we, when we're about to wrap up. But I, Linda, I guess is asking about finding, finding a lawyer to do this. And do you need to be legally able to practice in the state we live in in order to?
Yeah, I mean, I, I can't go into state court for you, um, in states where I'm not licensed. But I also, my firm is not set up to do litigation, so that's not really a concern. Um, actually, truthfully, I could go into state court, I would just have to file a petition and jump through a bunch of hoops. But, um, but for purposes of drafting documents and policies, I have clients in all 50 states. I think there might be one state where I don't have a client, but I've got clients in all 50 states that I've drafted documents and policies for them.
All right. All right, awesome. Um, here's a question about dealing with supplier terms and conditions and if there might be an overlap. She, hi Tom, I occasionally work with suppliers that have their own payment links with their own terms and conditions. Should I be setting my own terms and conditions as a backup for that same payment?
Hi Cindy, Cindy's actually a client of mine, so nice to, nice to see you. Um, so, uh, so, so if you, so actually, this payment link is a new thing. I know, I think Apple Leisure Group, like through VAX, you can send payment links. I know G Adventures wants you to, you have to send the link to your client, so your client pays them directly. That's actually a little bit better for you because then if there is a chargeback dispute, you're out of it. Like if they, if your, you know, if your supplier was not using, um, the approved magic language, they can't very well hold you responsible for it, because the supplier is taking that responsibility. I've heard that some suppliers are still coming back to advisors even when they send a payment link, but I don't see how they can do that. And, you know, I think that's a fight worth having if, if that happens to you. So I, I actually think the sending the links is actually a pretty good thing.
All right. Um, so I think just a few more, and then we're going to look towards wrapping up. But we have some more, I think that are pretty unique situations or specific questions. And again, we'll just, I'll just nod back to that disclaimer in the front of the conversation. But Jason wants to know about the line between travel agent, tour operator, and how terms and conditions are different. For example, if you're organizing your own group cruises.
So before I answer this, I just have to say that Jason Coleman is one of my favorite people in the travel industry, and he taught me almost everything I know about being a travel advisor. So I feel somewhat weird, like giving, giving one of my mentors advice on something like this. But, um, but it's a really good question, and I hope other people find, uh, find use this. Um, so, uh, the, there are, there's a big gray area between travel agent and tour operator. Um, and like on the, the lower end of the spectrum, if you host and escort groups, that's probably the least tour operator-y kind of thing you can do. Um, and, and like if you just find group space, you take out the group space, you market the heck out of it, and you try to get as many people to come with you, that is maybe one toe into the tour operator lane, but it's not really going to be a problem. If you start taking that rates and marking it up, if you start to handle client payment funds, uh, if the client is paying you and that money is going into your account, and then you're paying your supplier out of that account, those things put you more into the tour operator lane. But the number one thing that's going to be, so what, what the courts will say is that if you, you don't disclose who the supplier is, then a court will hold you to be responsible just as the supplier would be. So if you're white labeling trips, if you're not telling people who the supplier is, um, you know, for cruises, this isn't a real issue because everybody knows what ship they're getting on to. You know, if you're getting onto a Royal Caribbean ship, everybody knows that Royal Caribbean's the supplier, that's fine. But, um, but if you're using a DMC that might not sell to the public, and, uh, and you're white labeling that trip and you're selling it to people, uh, if they think they're buying the trip from you and you haven't told them, oh, I'm actually using IC Bellagio, or I'm using Abercrombie & Kent, or I'm using Funjet, um, if you're not disclosing who the supplier is, a court will find that it is reasonable for the traveler to assume that you are the supplier, and then you are on the hook for all of that stuff. So, so, um, most travel agencies are not going to want to be tour operators because there's just a ton of extra risk that attaches to that. One other, the thing to say about that, Berkshire Hathaway lately, um, which is one of the leading E&O providers, they have been telling a lot of people that they are tour operators if they do a lot of FIT travel or if they travel with their groups or, um, a few other things. But Berkshire Hathaway's definition of what constitutes a tour operator is not the same as the legal definition. So if you are insured by Berkshire Hathaway and they tell you you need a tour operator policy, um, frankly, I think it's just a way for them to sell a more expensive policy to you. But, um, just because Berkshire Hathaway tells you you're a tour operator doesn't mean that you're meeting the legal definition of what a tour operator is. Um, but if that's what they tell you you need and you're insured with them, don't argue with them about it because they're the ones who decide whether your claims get paid. So if they tell you you need that kind of policy, that's the policy you should get, or you can get a quote from somebody else if you think, you know, it's not working for you.
Okay. Yeah, that is interesting. I did not hear that. I didn't, wouldn't even consider that would be a thing, the Berkshire Hathaway sort of move requirement.
Telling you you are a tour operator, but I guess it does make sense if it's a corporation like this who is doing a lot of different kinds of insurance and are making their own decisions, I guess. Yeah. But also, one thing, and this is another part of Jason's question here, um, you know, for example, organizing group cruises. If you are doing those 'come with me' trips where, um, you're taking out space on, uh, on Windstar and you're building your own group and telling people to come with you and book that cruise, um, there are different—I would put different things in your terms and conditions document than I would put in somebody who doesn't host or escort trips. So again, customization is important. Okay.
All right, so we had two questions, and I think I know the answer to this, but Colleen wants to know about drafting terms of conditions for Canadians. I think we had another question about working with Canadians. That's not something you would do, and I assume that's not something most lawyers in the US would do. No, I mean, I don't draft for Canadian agencies. There's a firm, the Hitz Croser Law Firm. Uh, Tim Law is one of the partners there, so it's a law firm, and Tim Law's name is in it. They're in Toronto. They are terrific attorneys. So, Hitz Croser and Law. Okay.
All right, and then we had two questions about the DOT regulations that you mentioned earlier, including this one from Chris C. And I guess it's just finding the DOT regulations to include in your TNC, or to make sure that whoever you're working with includes them in your TNC. Um, so, the airlines always make those disclosures for you. So, um, I think if you've, if you've booked an airline ticket directly with, you know, Delta or United, there's probably some pop-up where they tell you, they make those disclosures to you. Um, that's probably the easiest way to find it. Um, you could do some legal research and like Google it, I guess. [Music] Um, but, uh, you know, I, I have that language on a—like I cut and paste that into every document that I do. So, yeah, I, I've, I've looked at the DOT regulations, and they are, they are available on the website. It's not the easiest to navigate, but if you do have the time and patience, I guess, to hunt them down, they are, I know they are up there. Yeah. And, and there are a lot of things like that. I mean, you, there are, um, you know, there are courses on legal compliance that are part of the Travel Institute. Um, ASTA has, um, you know, if you go through the VTA certification, um, with ASTA, or even the 'New to the Industry,' they have, um, modules on legal compliance. If you're interested in knowing like what are the things that I should be disclosing, um, you could either consult with a lawyer or maybe, you know, through some of those courses, you might get some of that information. All right.
So, I have one more question from Britt who just came into the chat that I'll throw up. But Tom, where can people reach you if they are interested in having a conversation with you or asking you any questions? Yep. So, um, right now my law, uh, right now my website is www.carpentertaylor.com. Here, I'm going to type it into the chat here. And, um, there's a form on my website if people want to reach out to schedule a complimentary consultation. I'm happy to do that. Um, my calendar can get kind of backed up. I have an associate, Brandon Taylor, who is, um, uh, who also does, uh, intake calls. Um, he, he sometimes has better availability than I do. I have two other attorneys on my team who are of counsel, who, um, do review calls with people, so we can turn things around pretty quickly if people want to work with us. But, um, also, I should say, carpentertaylor.com is going to be going away at some point, and it's going to be replaced by www.carpenterlawgroup.com because, um, uh, because that domain name just became available, and so we're, we're going to move over to, so, um, but things will redirect for a while. So, this is being recorded, it's going to live on the web. Um, you know, by the time you watch this, uh, it could be carpenterlawgroup.com. Yeah, the wonderful world of web domains. I definitely understand. Yeah. Um.
So, last question from Britt. I think this is a good one to wrap up with. Aside from terms of conditions, Tom, what would you say is the top legal issue advisors encounter with clients, or any legal issues that you think are going to start becoming the top legal issue, like anything trending, anything advisors should keep an eye out or an ear out for? Yeah. I mean, right now, chargebacks are the, are the big one. I mean, it comes and goes, right? Um, the, the incoming administration, um, is putting out a bunch of different regulations, um, many of which affect the, the travel industry, so we're still looking at those things. Um, there's, uh, there's a, a regulation about, uh, about, uh, gender markers on passports. Um, the Trump administration is now going to be requiring people to have their gender marker, um, that they were assigned at birth, rather than, rather than their gender identity. So, if you have clients who are transgender, gender non-conforming, non-binary, uh, there may be some things you might want to be paying attention to on that front. Uh, immigration status, um, like I'm trying to figure out how those new things are going to come into play. Um, so, so there's, there are always developments that we're looking at. We'll, we'll see what the next issue is. Um, obviously, the, you know, when, when we were dealing with the pandemic, that was a whole different raft of issues. Um, and, uh, you know, there's, there's an ebb and flow to it. Um, you know, the, um, I, I didn't, I didn't make an update to my terms and conditions, but a few months ago, there were people who were, um, crossing the border and had ammunition in their bags and were detained. Um, and so, you know, that was something where I was considering putting something into my terms and conditions, decided ultimately not to do that because it's covered by other provisions already. So, um, you know, we, I, I keep an eye on all, all of that. It's hard to, hard to predict what the next is, but like, knock on wood, it's not going to be like—I mean, I hate even saying this, but like, you know, the pandemic was, yeah, like there's always something new, and you never know what the next one's going to be. So, yeah, there is always something new. Um.
I'm going to have, so we, I'm going to have, uh, Tom McCarthy, our producer, drop again your link back in the chat so people have it, uh, on the, at the bottom there. And then we're also going to drop the YouTube. I see a few more questions about if this being recorded. Yes, it, it's being recorded, and if you subscribe to the YouTube, we'll have it up there later today or early tomorrow morning. Um, Tom, I just want to say, we do a lot of these. I know this particular topic is a really big lift for you, so I just want to say I really appreciate your time. Uh, really nice talking to you. I know this was really informative. I think it was an important way to kick off the year, so we really... I am, I am grateful for the, uh, for the reporting that Travel Market Report does and for your support of the advisor community. And, uh, it's a pleasure to be, to be part of this. So, thanks so much. All right, thanks, Tom. Thanks, everyone, for coming out. Uh, hopefully, we'll see you here next month. But until then, you can check out, again, check out the recording on YouTube. And everyone, hopefully everyone stays safe and, uh, stays healthy, and we'll see you soon.