Reviewing Your Terms and Conditions to Meet New Visitor Expectations

In May 2021 Deborah Heather, CEO of Quality in Tourism  (QiT) ran a presentation followed by a Q&A session for Tourism Businesses providing a valuable opportunity for tourism businesses on the Isle of Man to consider the best practice for their Booking Terms and Conditions in line with new visitor expectations following the pandemic. Below is a summary of the presentation along with the collated questions and answers.

The article contains a summary of the notes and Q&A’s from Deborah’s presentation to industry stakeholders. The information is guidance only and not to be taken as legal advice. If ever in any doubt please always consult your own advocate.

Key points from Deborah

“Before COVID-19 Terms and Conditions (T&Cs) were rarely challenged and often written to favour the business. T&Cs during the pandemic in 2020 were often challenged and ultimately had little relevance. Customers now are much savvier and T&Cs are under a lot more scrutiny. Now is the time to review what you have, consult a solicitor if required, but take a good look at your T&Cs.

Your Terms and Conditions must be fair.

• You cannot discharge responsibility for death or injury through your negligent.
• Just because they are your T&Cs it does not mean they will hold up to scrutiny in court.
• Beware of any “unfair clause”.

We recommend you look at your T&Cs from every angle, from the customers’ viewpoint as well as your operation. It is very important you ensure there are no “unfair” clauses, everything has to be reasonable.

You must be transparent.

• Make sure you have proof that a customer has seen your T&Cs before they pay you any money. Keep your email trails, create a tick box on your website to accept, take screen shots, whatever you can to ensure that you can prove they had them.
• Advise them to take out insurance, and keep advising all the way through their booking process, again take screen shots, keep emails anything that can prove you gave them the advice to buy insurance. Unlike in 2020, COVID-19 is now a known entity so insurers must include it.

The above will help when challenging chargebacks (refunds to credit cards). A customer can cite four reasons for requesting a chargeback:

• Credit not processed (when you have agreed to refund but haven’t done it)
• Services not rendered (when they haven’t turned up, or you were closed etc.)
• Not as described (you can protect against this by ensuring all your marketing is transparent and honest)
• Payment not recognised (this usually resolved, but can be used in fraudulent cases)

Challenging a chargeback is a stressful and protracted process, you will need all the evidence you can gather. The process is weighted towards the customer because of the leaning of the credit card companies and Consumer Protection Laws. However it is doable with the right evidence, but it is a painful process.

You may wish to consider adding additional COVID-19 specific T&Cs to the top of your existing points. A holiday park in Padstow, Mother Ivey's Bay, has an excellent example which you are very welcome to adopt.”

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Mother Iveys Bay: Our ‘No Quibble’ Covid Guarantee

Our ‘no quibble’ Covid guarantee covers all 2021 holiday bookings, including 2021 bookings made prior to publication of this guarantee as well as all fresh bookings for 2021.

Please be reassured that the park will either fully refund or rearrange your 2021 holiday booking (that choice is yours):

1. Where your 2021 holiday booking cannot proceed as a result of either National or Tier Lockdown restrictions, including government rules that are guidance as well as rules that are law.

2. Where you or a member of the party listed on your booking has a positive Covid test, although please note we will need proof of the positive Covid test AND you must have notified the park as soon as reasonably possible.

Additionally, we appreciate that anxiety around Covid is a massive issue too, and therefore, if you decide to cancel your 2021 holiday booking because you wish to take your own extra precautions around Covid, regardless of whether or not your holiday can lawfully proceed as booked, then please email info@motheriveysbay.com urgently, because we will happily cancel your booking and release ‘your’ dates for re-booking, with the park promising to refund to you any payments we receive when ‘your’ re-booked 2021 holiday has been enjoyed by another guest.

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Q&As

Q1.The example “no quibble” clause, is this legal?

“Yes, it’s perfectly legal. He is giving the money back if it’s definitely related to C-19 (which given that is known entity now in insurance terms, just like breaking your leg), it actually goes above and beyond the necessary.”

Q2. Example Ts&Cs to copy?

“Please see Mother Ivey's Bay example above”

Q3. Is travel insurance including COVID?

“Yes, it is now a known entity.”

Q4. Can I insist on travel insurance?

“No you can only recommend it.”

Q5. How do I manage having different Ts&Cs to an OTA?

“The OTA’s are being truculent here, you either advertise on them or you don’t, if you do then you have to accept their T&C’s. They have you over a barrel in reality. I would reward people for coming direct, include something extra, and upgrade whatever you can.”

Q6. What happens if either the ill or healthy guest needs to be displaced?

Please refer to https://covid19.gov.im/  for the latest information and contact the COVID 111 team for guidance (+44 1624 822111 from a UK mobile).

Q7. Can I charge admin fee for moving a booking?

“Yes just make sure it’s fair – we suggest calculating your time involved and come up with a charge.”

Q8. Can I increase charges for inflation etc. for moved bookings?

“Yes but put a clause in your T&Cs and make sure you send new ones out to the guests and that they have signed.”

Q9. Can I charge a cleaning surcharge if someone tests positive in my property?

“Yes, again as long as it’s fair.”

Q10.  Can I insist on a negative test?

Businesses may set their own policy requirements for a negative COVID-19 test if they so wish.  It would be the responsibility of the business to set the policy and specify what evidence customers are required to submit to meet a ‘negative test’ requirement.  If a business wished to include any on-Island testing, it would be the responsibility of the business to arrange this themselves.

Q11. What are the entry requirements for getting on the island? 

Please see the latest guidance here: https://covid19.gov.im/travel-borders/

Q12. If the borders are still closed what are the deposit terms?

“If borders close you cannot deliver a service and will have to refund if requested, but you could move dates if the customer wants to do that.”

Q13. What happens if a guest gets covid whilst on the island?  Do they stay at the property and how long for?

Please refer to https://covid19.gov.im/  for the latest information and contact the COVID 111 team for guidance (+44 1624 822111 from a UK mobile).

Q14. Post 28th June (assuming unrestricted travel) do you recommend a clause making Guests clearly responsible for the costs of any additional nights in the accommodation they have rented, should they either exhibit COVID-19 symptoms or test positive and are required to isolate?

“Yes I think it is a good idea, and why you should keep recommending they get insured.”

Q14. I sell tours through Web Ticket Manager so the T&Cs are theirs rather than mine - should I be talking to them about changing their T&Cs?

“They are unlikely to change their T&Cs they will work very much the same as the OTA’s it’s a one size fits all approach and is heavily customer biased, but this the price of working with online sites, they have a broader reach than any individual operator could get.”

Q15. There has been an increase in people booking multiple holidays in different jurisdictions for the same period with the intention of cancelling the holidays at the last minute should the jurisdiction not be on the UK’s green list.  Recent reports in the UK, highlighted this practice and people were very blatant that they were booking a foreign holiday and a staycation and would be cancelling the staycation if their foreign holiday was permitted.

“My information is that the scale of this has been widely exaggerated. And where it has happened, properties have been able to resell their space. I suspect at the point they need to pay a deposit rather than last minute. Please see the example T&Cs above for a way of protecting against this.”

Q16. Currently we are encouraged to return funds or roll over if a client cancels, but, in the circumstances where both our border is open and there are no local lockdowns in the area they are coming from, why should we not treat the booking the same as pre Covid, i.e. non- refundable deposit and non-refundable full payment if cancelled within one month of travel?

“You are perfectly able to do this, Covid-19 is a now known entity. However you should consider two things, can you re-sell the space (note the Mother Ivey clause above), and customers are looking for flexible T&C’s. Secondly the social media storm could be hugely damaging to you and your business. Reputation is key going forward.”

Q17. What happens if someone tests positive whilst in the self-catering establishment and is instructed to stay where they are until a negative test. Who pays for the additional length of stay and whose responsibility is it to find alternative accommodation to the incoming guests who were due to stay for the same period?  And who pays the price difference?

“The customer that tests positive will be responsible for the costs, which is why you should recommend insurance. Displacement I would imagine will be on a case by case basis; every scenario will be different and will probably involve consideration around the risk to other people and other guests.”

Q18. Is it reasonable to add a surcharge for a deep clean and decontamination following a positive guest’s departure?

“Yes it is but dry cleaning curtains would not necessarily be necessary. Ventilation, fogging and steam cleaning will work equally as well. Costs will need to be fair and reasonable.”

Q19. Is it reasonable to add a surcharge to the price for roll forward guests? We have bookings taken in 2019 that have been rolled and rebooked for 2022 but there is a big difference in overheads.

“Yes, as long as you have a clause in your T&Cs and that you have communicated it properly.”

Q20. If one member of a large coach group tests positive, what happens to them and to the rest of the group?

Please refer to https://covid19.gov.im/  for the latest information and contact the COVID 111 team for guidance (+44 1624 822111 from a UK mobile).

“It is worth noting that you are likely to have a double vaccinated group, so this is highly unlikely.”