STATUS OF INDEMNITIES AND DISCLAIMERS
– PART 3 –
What you have to do about:
- Your Current and
- Future Documentation.
The first thing to bear in mind is that making your indemnities, waivers and terms and conditions CPA compliant is not the be all and end all of the CPA. It goes much wider and you have to vet all your promotional material, contracts, documentation (pertaining to your Critical Transactional Path – ‘CTP’), signage, instructions and your physical transactional path and contracts with all suppliers and marketers of your products and services.
Change as soon as possible as you run a risk if you, for example, try and use up your current documentation. Assuming you will ultimately do all the above but want to start with your disclaimers and and indemnities then do the following:
- Deal with gross negligence – delete;
- Ensure the wording is plain, comprehensive and understandable;
- All signage must, over and above the aforesaid, be conspicuous and rather be over than under used;
- Train your staff to have a good understanding of the CPA and to have a consistent approach to clients;
- Comply with sections 48 and 49 i.e. don’t try and ‘sweep the indemnity/disclaimer under the carpet’ otherwise it will haunt you if there is ever complaint – bring it to the attention of the client as required and if in addition there are risks that you have to explain, do so;
- Discuss the above with your insurance broker, especially the consequences if an indemnity or waiver is found to be non-applicable, or that despite such a document, liability arises in terms of section 61 i.e. ‘irrespective of negligence’.
Finally it is imperative that you train all your staff: it is not necessary that they are able to quote the CPA ‘chapter and verse’ but it is imperative that they:
- Know about the CPA;
- Know what to do and what not to do;
- Know why that is the case;
- Can explain it to the customer;
- Are subjected to a disciplinary procedure for non-compliance.
Disclaimer: This article is intended to provide a brief overview of legal matters pertaining to the travel and tourism industry and is not intended as legal advice. © Adv Louis Nel, BENCHMARK, April 2013.