Are You Waiving Your Legal Rights When You Buy Travel Online?

When you go online to arrange a hotel room or any travel service other than an airline ticket, before the website lets you buy, you have to check a box that acknowledges that you accept the fine print. Chances are, you just check that “terms of use” or similarly titled box without much thought and get on to the next screen. But if you really read the complete fine print, you’d find one of the industry’s dirty little secrets: By accepting those terms, you’re waiving almost any right you have to legal recourse should anything go wrong with the transaction or your trip. Here’s a sample, from Expedia, verbatim:

“In no event shall the Expedia Companies, the Expedia Affiliates and/or their respective suppliers be liable for any direct, indirect, punitive, incidental, special or consequential damages arising out of, or in any way connected with, your access to, display of, or use of this Website or with the delay or inability to access, display or use this Website (including, but not limited to, your reliance upon opinions appearing on this Website; any computer viruses, information, software, linked sites, products and services obtaining through this Website; or otherwise arising out of the access to, display of or use of this Website) whether based on a theory of negligence, contract, tort, strict liability, consumer protection statutes, or otherwise, and even if the Expedia Companies, the Expedia Affiliates and/or their respective suppliers have been advised of the possibility of such damages.

“If, despite the limitation above, the Expedia Companies, the Expedia Affiliates or their respective suppliers are found liable for any loss or damage which arises out of or in any way connected with any of the occurrences described above, then the liability of the Expedia Companies, the Expedia Affiliates and/or their respective suppliers will in no event exceed, in the aggregate, the greater of (a) the service fees you paid to Expedia, Inc. in connection with such transaction(s) on this Website, or (b) One-Hundred Dollars (US $100.00) or the equivalent in local currency.

“The limitation of liability reflects the allocation of risk between the parties. The limitations specified in this section will survive and apply even if any limited remedy specified in these Terms of Use is found to have failed of its essential purpose. The limitations of liability provided in these Terms of Use inure to the benefit of the Expedia Companies, the Expedia Affiliates, and/or their respective suppliers.” Wow! Talk about a completely one-sided set of terms. Note, especially, these onerous conditions:

• The various exclusions apply not only to Expedia, itself, but also to its suppliers. That means when you arrange, say, a hotel room through Expedia, your agreement lets the hotel off the legal hook as well as Expedia.

• The second paragraph says, in effect, that even if Expedia partially loses in court, you can’t claim more than you paid Expedia for the hotel room.

Whether called “terms of use,” “user agreement,” or “terms and conditions,” every other online agency I’ve checked says essentially the same thing. Expedia’s last paragraph surely tells it like it is: The terms really do inure to the benefit of Expedia and its suppliers—totally.

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You can’t avoid such waivers by buying directly, either. Hotel chains and other supplier websites typically require that you accept similar fine print as a condition of purchase. Only airlines can’t do the same, because their terms are governed by federal requirements, but they can and do exclude liability for consequent damages in all cases.

One-sided, non-negotiated agreements of this sort are called “contracts of adhesion” and may not always be fully enforceable. But published legal opinions say that courts often uphold them, anyhow, and fighting them is an uphill battle.

I wish I could come up with some suggestions for how you can avoid putting yourself in this sort of legal hole whenever you make travel arrangements online, but I can’t. Sorry. Be warned.

Ed Perkins on Travel is copyright (c) 2014 Tribune Media Services, Inc.

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