Stephen Barth is an attorney, the founder of HospitalityLawyer.com, the annual Hospitality Law Conference series, and the Global Congress on Travel Risk Management. He is author of Hospitality Law and coauthor of Restaurant Law Basics. As a professor at the Conrad N. Hilton College of Hotel and Restaurant Management at the University of Houston, he teaches courses in hospitality law and leadership. He has more than 20 years of experience in hospitality operations, including line positions, management and ownership. Stephen is a founding member of the Hospitality Industry Bar Association and member of the State Bar of Texas. He is also a mediator and a strong proponent for alternative dispute resolution.
Many hoteliers have likely had the experience of receiving a proposed meeting/event contract that is so one-sided they want to throw it in the trash. Then they are faced with having to spend hours negotiating the same clauses that have been negotiated for decades by parties involved in similar agreements. Ultimately, we spend far too much time and effort getting back to square one: mutual, fair contract clauses.
Today, we will not do business with a company that tries to seek an advantage via contract. Like Mr. Isadore Sharp of Four Seasons fame, we believe in doing business with people whom we trust, and if someone tries to negotiate a contract that gives them leverage or couches us as adversaries, that does not bode well for our future relationship. Contracts should center on allocating obligations and risks fairly among the parties involved, and be structured in such a way that both parties are fairly incentivized to fulfill their obligations under the contract.
At HospitalityLawyer.com, we’ve worked hard to develop mutual meeting contract clauses so hosts and planners can spend less time renegotiating the same clauses and more time executing meetings, conferences and events. Here are three clauses that illustrate our effort to make meeting contracts more mutual:
This clause shifts the risk of loss from one party to another, placing the risk on the party that causes the loss via their negligence. We often review contracts with one-sided indemnification clauses, but we believe in that old adage: If it’s good for the goose, it’s good for the gander! If one party asks the other party to indemnify it; then it’s only fair that the asking party be prepared to indemnify as well. Beware a party that won’t reciprocate the same things it requests of you.
Each party agrees to indemnify and hold harmless the other party and its employees, members, landlord, successors and assigns, from any claims, liabilities, losses, damages and expenses (including, without limitation, reasonable attorney’s fees) asserted against the other party and arising out of the indemnifying party’s negligence, willful misconduct and negligent performance of, or negligent failure to perform, any of its duties or obligations under this Agreement. The provisions of this indemnification are solely for the benefit of the parties hereto and not intended to create or grant any rights, contractual or otherwise, to any other person or entity.
A word of caution about indemnification clauses: They’re only as good as the money behind them, so ensure the indemnitor has sufficient financial assets and/or insurance in place to support the indemnification obligation.
This clause is very complex, which makes it difficult to achieve true mutuality here. It excuses performance by the parties involved when that performance cannot occur due to no fault of the parties. The clause below likely favors the planner, but we believe it is fairer and more comprehensive than other clauses that place the advantage with the host. I advise hospitality clients to review this clause regularly, as unforeseen issues that interfere with performance can arise. Terrorist attacks, cyber warfare and pandemics are just a few examples of how this clause has evolved.
Neither party shall be considered in default in performance of its obligations should its performance thereof be delayed or prevented by force majeure. Force majeure shall include hostilities, civil commotion or riots; strike or lockout; epidemic, pandemic, norovirus, accident, fire, flood, earthquake, windstorm or explosion; lack of or failure of transportation facilities; lack of or failure of power facilities, electronic viruses and/or worms, failure of website hosting servers; regulation, ordinance, or requirement by any government or governmental agency having or claiming to have jurisdiction over the subject matter of this Agreement or over the parties; or any act of God or of Government; or any cause, existing or future, which is beyond the reasonable control and without the fault or negligence of the parties.
This clause needs to be included so each party understands its respective obligations under this law. Once included, this clause becomes a simple matter of execution. Too often, however, parties fail to include this clause in a contract, and one or both parties violate the law while assuming the other party will handle compliance.
1. Hotel’s Responsibilities: The Hotel shall be fully responsible for compliance with the Americans with Disabilities Act of 1990, as it may be amended, and all the rules and regulations promulgated under it (the “ADA”) with respect to:
a. the Hotel’s policies, practices, procedures and eligibility requirements;
b. the provision of auxiliary aids and services in the Hotel, except; architectural, communications and transportation barriers in the Hotel, except barriers created by or within the control of the Group; and architectural, communications and transportation barriers in the Hotel, except barriers created by or within the control of the Group; and
i. in areas designated for the exclusive use or within the control of the Group or other third parties exclusively using areas of the Hotel including, without limitation, tenants, licensees and other groups (collectively “Third Party Users”); and
ii. aids and services required for the specific activities of the Group or other Third Party Users;
c. architectural, communications and transportation barriers in the Hotel, except barriers created by or within the control of the Group; and
d. the availability of wheelchair seating spaces in assembly areas, except to the extent that the Group exercises control or direction over the arrangement of seating in an assembly area.
2. Group’s Responsibilities: The Group shall be fully responsible for compliance with the ADA with respect to:
a. the policies, practices, procedures and eligibility criteria employed by:
i. the Group; and
ii. any person(s) other than the Hotel providing goods or services in connection with the Group’s use of or activities at the Hotel;
b. the provision of auxiliary aids and services: architectural, communication and transportation barriers created by or within the control of the Group; and architectural, communication and transportation barriers created by or within the control of the Group; and
i. in areas designated for the exclusive use or within the control of the Group; and
ii. required for the specific activities of the Group (as distinct from the activities of non-Group guests of the Hotel);
c. architectural, communication and transportation barriers created by or within the control of the Group; and
d. any wheelchair seating requirements, to the extent that the Group exercises control or direction over the arrangement of seating in an assembly area.
In today’s uncertain legal climate, clear mutual clauses that fairly allocate risk will go a long way towards avoiding litigation in the future. This will, in turn, create an environment that fosters a long-term relationship between the parties involved. C&IT