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TRAVEL LAWLegal Representation

of Travel Agents

Laurence D. Gore , Esq.

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Sections 1- THE LAWYER AND THE TRAVEL

INDUSTRY.

2-ERRORS AND OMMISSIONS –GENERAL LIABILITY

3-STATE SELLER OF TRAVEL REGULATIONS 4. TERMS AND CONDITIONS STATEMENTS

5-SELLING TRAVEL ON THE INTERNET: WHAT SHOULD THE SELLER KNOW TO PROTECT THEIR BUSINESS AND SELF

6- DISCLAIMERS

7-CONTRACTING/INDEPENDENT CONTRACTORS—WHAT TO LOOK FOR IN A HOST AGENCY.

Section 1- The Lawyer and the Travel Industry

A- Travel Law

1. 1.) 3rd large industry in the world

2. 2.) Florida’s largest industry

B.- Travel Law

1.) Origins in middle ages

2.) Recognized speciality in most of the world

3) Numerous courses throughout the world’s law schools

4.) Travel Law Organizations

a.) IFTTA (International Forum of Travel and Tourism Advocates

b.) International Bar Assoc. Travel Law Section

c.) Florida Bar – Travel Law Committee of the International Law Section

C. Clients

1.) Travel Agencies

2.) Tour Companies

3.) Travel Agents

4.) Aggrieved Travelers

1.

3

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Section 2 -ERRORS AND OMMISSIONS –GENERAL LIABILITY

I. E&O SHOULD BE MANDATORY II. E&O SHOULD BE REQUIRED BY A

HOST AGENCY

A.   Sample Clause: “The contractor is to provide for own errors and

admissions insurance in the amount of $1,000,000.00 and must submit proof of said insurance upon signing of this agreement. Contractor may, at its option, purchase liability insurance through the Agency and/or may have the costs of said insurance deducted from initial commissions.”

 

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III . E&O DOES NOT COVER MANY POTENTIAL LIABILITIES

a.   Intentional negligence b.   Injuries and sickness c. May not cover defaults of

suppliers

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IV.  RISK

PROTECTION ISSUES FOR AGENIES AND AGENTS.

a- Form of Business -corporate   b- Asset Protection Planning-putting

assets out of creditors reach :

1.)  Form high risk corp. if involved in high risk or adventure travel or in the planning of same.

i.e. No or very limited assets-lease when possible 

2.)Form low risk corp. which owns any assets l.e.Property,computers,etc )    

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c.  PERSONAL INJURIES AND ACCIDENTS

1.)   MANAGING THE RISK AFTER ACCIDENT

2.)     APOLOGIES BUT NOT ADMISSION OF GUILT

3.)     SEND FLOWERS BUT NEVER REFUNDS OR CASH

4.)     ALWAYS ATTEMPT TO SELL TRAVEL INSURANCE OR AT LEAST OBTAIN WAIVER

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Section 3. STATE SELLER OF TRAVEL REGULATIONS

I. STATES WHICH REGULATE and REQUIRE REGISTRATION : CALIFORNIA, FLORIDA, HAWAII, IOWA, NEVADA, RHODE ISLAND, WASHINGTON.

  II. STATES WHICH REGULATE SALES WITHOUT

REGISTRATION BY REQUIRING CERTAIN DISCLOSURES AND REFUND OBLIGATIONS- ILLINOIS, MASSACHUSETTS, NEW YORK

 

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III.INDEPENDENT AGENT V TRAVEL AGENCY

“INDEPENDENT AGENT” MEANS A PERSON WHO REPRESENTS A SELLER OF TRAVEL BY SOLICITING PERSONS ON ITS BEHALF, WHO HAS A WRITTEN CONTRACT WITH A SELLER OF TRAVEL THAT IS OPERATING IN COMPLIANCE WITH THIS PART AND ANY RULES PROMULGATED THEREUNDER, WHO DOES NOT RECEIVE A FEE, COMMISSION, OR OTHER VALUABLE CONSIDERATION DIRECTLY FROM THE PURCHASER FOR THE SALE OF TRAVEL, WHO DOES NOT AT ANY TIME HAVE ANY UNISSUED TICKET STOCK OR TRAVEL DOCUMENTS IN HIS OR HER POSSESSION, AND WHO DOES NOT HAVE THE ABILITY TO ISSUE TICKETS, VACATION CERTIFICATES, OR ANY OTHER TRAVEL DOCUMENTS” F.S. 559.927

a- WRITTEN CONTRACT b- DOES NOT RECEIVE A FEE COMMISSION OR OTHER

VALUABLE CONSIDERATION DIRECTLY FROM THE PURCHASER.

C- NOTE: OTHER METHODS OF INDIRECT SALES, INTERNET, OUTSIDE SALES ASSOCIATES

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IV.   SECURITY REQUIREMENTS a.USUALLY BOND OR LETTER OF CREDIT UP TO

$25,000 TYPICAL AND/OR b.MAINTANES CLIENT MONEYS IN A TRUST ACCOUNT

OR PARTICIPATES IN A CONSUMER RESTITUTION FUND

V. TRANSACTING BUSINESS IN OTHER

STATES a.“DIRECTLY OFFER OR SELL TRAVEL SERVICES OR

TRAVEL-RELATED BENEFITS TO WASHINGTON CONSUMERS, INCLUDING THE PLACEMENT OF ADVERTISING IN MEDIA BASED IN THE STATE OF WASHINGTON OR THAT IS PRIMARILY DIRECTED TO WASHINGTON RESIDENTS. ADVERTISING PLACED IN NATIONAL PRINT OR ELECTRONIC MEDIA ALONE DOES NOT CONSTITUTE “TRANSACTING BUSINESS WITH WASHINGTON CONSUMERS.” THOSE ENTITIES WHO ONLY WHOLESALE TRAVEL SERVICES ARE NOT “TRANSACTING BUSINESS WITH WASHINGTON CONSUMERS” FOR THE PURPOSES OF THIS CHAPTER”

RCW 19.138 CHAPTER

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Section 4. TERMS AND CONDITIONS STATEMENTS

   I- JURISDICTIONAL CLAUSES a-ESSENTIAL TO ANY CONTRACT OR AGREEMENT BUT ESPECIALLY RELEVENT WHEN YOU HAVE INDEPENDENT CONTRACTORS OR RUN OVERSEAS PROGRAMS, OR ADVERTISE OUTSIDE OF YOUR STATE.

 

b-“THIS AGREEMENT SHALL BE GOVERNED BY AND CONSTRUED ACCORDING TO THE LAWS OF THE STATE OF ___________”

  II-ALTERNATIVE DISPUTE RESOLUTIONa.“If a dispute, controversy or claim arising out of or relates to this contract, or the breach thereof, the parties agree that said dispute shall be submitted to mediation administered by the World Travel Dispute Center, Inc. Both parties agree to share equally in the costs of said mediation. If mediation is unsuccessful then said dispute shall be submitted to arbitration only if the amount in controversy exceeds $6,500.00 dollars, otherwise said dispute shall be settled in the county court of ___________, Florida. Shall the dispute be submitted to binding arbitration it shall be in accordance with the Rules of the American Arbitration Association and judgment upon the award rendered by the arbitrator may be entered in any court having jurisdiction thereof.”

 

III.          

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   SPECIFIC RESPONSIBILITIES CLAUSES a-DEFINES RESPONSIBILITIES, DUTIES THAT THE AGENT AND/

OR AGENCY ARE REQUIRED TO PERFORM.  b-DEFINES RESPONSIBILITIES, DUTIES THAT THE CONTRACTING

AGENCY OR TOUR COMPANY ARE TO PERFORM  c-ESSENTIAL WHEN DEALING WITH AN ORGANIZATIONS,

CHARTER, GROUP TRAVEL  d-EXAMPLES: CHURCH GROUPS, CHARTERED BUS

COMPANIES, HOTELS, MEETING OR ASSISTANCE PLANNERS  

IV. BOOKING AND DEPOSIT CONFIRMATION a-ESSENTIAL TO PROVIDE SOME FORM OF WRITING ASAP AFTER

RESERVATION TAKEN b-IN CASES OF TELEPHONE AND ONLINE BOOKINGS THE

OPERATOR MUST MAKE IT CLEAR THAT THE BOOKING IS SUBJECT TO CONFIRMATION AND THAT CONFIRMATION WILL ONLY BE EFFECTIVE AND THE CONTRACT BINDING ONCE THE CLIENT HAS RECEIVED, SIGNED AND RETURNED A COPY OF THE TERMS AND CONDITIONS.

c-IN SEVERAL CASES COURTS HAVE HELD THAT THE CLIENT IS NOT OBLIGATED TO THE BOOKING TERMS AND CONDITIONS UNLESS PRESENTED AND AGREED TO.

 d-ESPECIALLY RELEVENT TO CANCELLATION PROVISIONS.

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Section 5SELLING TRAVEL ON THE INTERNET: WHAT SHOULD THE SELLER KNOW TO PROTECT THEIR BUSINESS AND SELF

I. TYPES OF SITE a.    PASSIVE-INFORMATION ONLY DISPLAY b.    PARTIALLY ACTIVE-ENABLES VIEW OF INVENTORY CURRENTLY

AVAILABLE c.    FULLY ACTIVE-ENABLES VIEWER TO BOOK ONLINE

 II. STATUS OF LEGAL INTERPRETATIONS a.    PASSIVE AND PARTIALLY ACTIVE SITES ARE NOT DEFINED AS

DOING BUSINESS IN ANOTHER STATE  b.    ACTIVE SITES HAVE BEEN INTERPRETED AS DOING BUSINESS IN

THE JURISDICTION OF THE CLIENT BOOKING ON THE SITE  

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III.      JURISDICTION INTERNET CLAUSE ESPECIALLY RELEVENT ON ACTIVE SITE.

    EXAMPLE: “The customer agrees that the use of this website for the booking of any travel shall limit the jurisdiction of the filing of any lawsuit or legal action whatsoever by customer to the courts of _______County, ______. The applicable law shall be that of the State of ________, County of ________, or applicable Federal Law of the United States of America.”

  IV.      REFUND AND CANCELLATION CLAUSES AND

POLICY NEED TO BE INCORPORATED INTO THE WEBSITE.  V. LEGAL NOTICE OF NONRELIANCE ON INFORMATION

OR SUPPLIERS REFERENCED IN WEBSITE  VI. CONSUMER DISCLOSURE NOTICES NECESSARY TO WEBSITE.  

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VIII.      CREDIT CARD AUTHORIZATION FORM AND TERMS INCLUDING “THE CANCELLATION OF ANY RESERVATION BY THE CUSTOMER SHALL NOT BE EFFECTIVE UNLESS AND UNTIL THE CUSTOMER IS IN RECEIPT OF THE STANDARD CANCELLATION NOTICE FORM OF ___________TRAVEL AGENCY”

IX.      MODIFICATION OF TERMS AND CONDITIONS FORM

 

X“____________TRAVEL RESERVES THE RIGHT TO CHANGE THE TERMS, CONDITIONS, AND ANY OTHER NOTICES UNDER WHICH THIS WEBSITE IS OFFERED AND YOU AGREE TO ACCEPT AND BE BOUND BY THOSE TERMS, CONDITIONS, AND NOTICES THAT ARE IN EFFECT AT THE TIME OF YOUR USE OF THIS WEBSITE AND ASSOCIATED FACILITIES.

 

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SECTION 6 : DISCLAIMERS I.    WAIVERS a.    RELIEVES COMPANY OF ACTS THAT COULD BE CONSIDERED NEGLIGENT ASSUMPTION OF

RISK.   b.    NOT EFFECTIVE IN AREAS OF GROSS NEGLIGENCE (i.e. DRUNK RIVER GUIDE, KNOWN FAULTY

EQUIPMENT)

c.    CERTAIN STATES WILL NOT ALLOW WAIVERS IN AREAS SUCH AS HOSPITALS AND ESSENTIAL PUBLIC SERVICES

d.    WAIVER HAS TO BE VOLUNTARY (i.e. INDIVIDUAL CAN CHOSE FREELY –NOT AFTER BEING DROPPED OFF AT RIVER AND LEFT)

 e.     WAIVER MUST BE CLEAR AND UNAMBIGUOUS, NOT SEVERAL PAGES IN LENGTH, ONE OR TWO PAGES THAT CLEARLY DESCRIBE THE RISK

 

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II DUTY TO WARM a.    ONLY OF AREAS OF WHICH YOU ARE OR SHOULD BE KNOWLEDGABLE AS A TRAVEL

PROFESSIONAL\

b.    MEDICAL CONDITIONS AND HEALTH—ADVISE CLIENT TO OBTAIN CDC INFORMATION ONLINE AND SEE HIS/HER DOCTOR.

 C.    POLITICAL UNREST—ADVISE ONLINE INFO AT U.S. STATE DEPARTMENT  D.    FINANCIAL CONDITION OF SUPPLIERS—YES,IF KNOWN GENERALLY IN THE TRAVEL INDUSTRY

III. AREAS AND TYPES OF DISCLAIMERS A.    MEDICAL INSURANCE B.    TRIP CANCELLATION C.    CONSUMER DISCLOSURE NOTICE --AGENT FOR SUPPLIER ONLY D.    RELEASE AND ASSUMPTION OF RISK-ESP. ADVENTURE/HIGH RISK TOURS AND TRAVEL E.     FINANCIAL SOLVENCY OF SUPPLIER    

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SECTION 7 : CONTRACTING / INDEPENDENT CONTRACTORS: WHAT TO LOOK FOR IN A HOST AGENCY.

I.  INDEPENDENT CONTRACTOR AGREEMENT

A- TERMS 1.  RESPONSIBILITIES 2.  COMMISSIONS –AMOUNTS, WHEN AND HOW PAID 3.  E&O INSURANCE CARRIED BY HOST/AVAILABILITY TO INDEPENDENT CONTRACTOR 4.  RESTRICTIONS UPON CANCELLATION OF AGREEMENT-NONCOMPETITION 5.  OWNERSHIP OF CLIENT LIST 6.  SUPPLY OR RENT MATERIALS AND DESK SPACE 7.  NO SPECIFIED HOURS IN AGENCY 8.  ACCESS TO NAME 9.  ABILITY TO CONTRACT 10.  CONFIDENTIALITY AGREEMENTS  

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II. EMAIL AND WEB USE POLICIES III. MEMBER OF FRANCHISE, CO-OP,

CONSORTIUM IV.  PREFERRED SUPPLIERS—

RESTRICTIONS V. IATAN CARD

VI. FAM AVAILABILITY VII.AGENCY ASSISTANCE AND SUPPORT

—YOUR CLIENTS REMAIN YOUR CLIENTS VIII.TOUR CONDUCTOR POLICIES

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LAURENCE DOUGLAS GORE, ESQ.LAURENCE DOUGLAS GORE, ESQ.

Laurence D. Gore & Associates, PA

Address

www.laurencegore.comwww.laurencegore.com

Fort Lauderdale, Tampa Bay, Southeastern Pennsylvania,US- London,UK, -Buenos Aires, Argentina

E mailGorel @ msn.com

International @ laurencegore.comPresident @ laurencegore.com

Inform @ laurencegore.com

Phones: 954-493-7400- 954-551-8199

Phones: 954-493-7400- 954-551-8199

Fax954-493-7770954-356-0424

Fax954-493-7770954-356-0424

Web

101 NE 3RD AVE, SUITE 1500FORT LAUDERDALE, FL 33301