Ask the Attorney: Future Agreement

Problem clauses to consider fixing or downright excluding

Sometimes, in an attempt to cover all of our bases by including every conceivable contract clause, we trap ourselves in the outfield with confusing and unenforceable language that leads only to lawsuits and court cases. We asked Phoenix-based attorney Lisa Sommer what clauses she sees as most problematic after practicing hospitality law for the past 25 for large hotel groups, including Hilton and Marriott. Then we asked her how to fix them.

Data Policy

Everyone has to follow the laws around data privacy and all hotels have their own policies. Don’t layer yours on top because the hotel will just default to their own. The hotel hosts hundreds of events annually and can’t adhere to every customer’s potentially different policy. Plus, personally identifiable information is covered by civil liability laws and guest expectations beyond statutory law.

To Do: You will need to get permission from attendees to share information with the hotel so the hotel can compare rooming lists for room block verification. Many hotels will no longer allow customers to participate in audits for privacy reasons.

Confidentiality

Whether the group in the ballroom is talking about potato chips or nuclear launch codes, the hotel provides the same services. It doesn’t want or need your group’s confidential information to provide that service and can’t accept responsibility for anything that could possibly leak.

To Do: Instead of a general, sweeping clause, negotiate what steps will be taken to keep information secure, such as locking the door, hiring security guards, keeping attendants out of the meeting, providing shredders for documentation and education of attendees about how they treat the information shared.

Political

Putting into a contract that if a state passes a law the group doesn’t agree with, they can cancel, puts the burden of your politics on the hotel.

Read More: Weaponization of Travel: Navigating Cultural Obstacle Courses

To Do: Have conversations with the hotel and attendees to talk about what you can and can’t do and how to mitigate.

Lowest Rate

Every contract is a futures agreement. You are making a deal based on an entire package, including concessions. If you throw in a “lowest rate available at the time” clause for rooms a year in advance, that could change the equation on the rest of the agreement. Most planners wouldn’t agree to a “highest rate available at the time” clause in case prices go up and it is not reasonable to ask for the opposite.

To Do: Ask for all of your required elements at the beginning of a negotiation so all parties can come to a mutually beneficial agreement.

Thou Shalt Not

This could apply to stipulating that the hotel can’t “walk” guests, change the space or cancel. If there is a fire, the hotel may have to do some or all of those things regardless of what the contract says.

To Do: Negotiate a walk clause so you are involved in deciding who is moved to another hotel and what the concession will be.

Guarantee of Service 

This is difficult to define and enforce and inserting language that says your guests will receive “adequate” or four-star service can lead to accusations with no clear baseline.

To Do: Have a conversation about what is important. Is it having rooms ready when guests arrive? Daily housekeeping? Late hours in the lobby bar? Knowing what services are important to your group will help the hotel prioritize resources.

Force Majeure

This still applies only to circumstances that make the meeting illegal, impossible or commercially impracticable. It has to be a “can’t” vs. “I don’t want to.”

To Do: Talk to the hotel about managing attrition, if possible, and come to an agreement.