1. Termination and Excuse of Performance
Sample Clause: “The parties’ performance under this agreement, in whole or in part, is subject to acts of God, war, government regulation, terrorism, disaster, strikes, civil disorder, curtailment of transportation facilities, or similar emergency beyond the parties’ control, making it impossible, illegal, or commercially inadvisable, or which materially affects a party’s ability to perform its obligations under this agreement in whole or in part. Either party may terminate this agreement without liability for any one or more of such or similar reasons upon written notice to the other party within ten (10) days of such occurrence or receipt of notice of any of the above occurrences.”
Tyra Hilliard: “One of the most disputed clauses in our industry, the Termination & Excuse of Performance—or—clause is intended to shield a party from risk arising from a situation beyond that party’s control.”
Sample Clause: “ “Each party agrees to indemnify and hold harmless the other party and its employees, members, land-lord, successors, and assigns, from any claims, liabilities, losses, damages, and expenses asserted against the other party and arising out of the indemnifying party’s negligence, willful misconduct, and negligent performance of, or 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 another person or entity.”
Stephen Barth: “This clause is very important as it shifts the risk of loss from one party to another; however, the shift is seen as a fair one as it usually is placing the risk on the party that causes the loss via their negligence.
“Often, I receiveto review that have one-sided indemnification clauses, but I believe in that old adage: ‘If it’s good for the goose, it’s good for the gander!’
“If one party is asking the other party to indemnify it, then it is only fair that the asking party be prepared to indemnify as well. Be wary of a party that will not agree to do what they are asking you to do.
“Also remember that this clause is only as good as the money behind it, so be sure the indemnitor is well-heeled financially or has insurance in place to support the indemnification obligation, should it come to fruition.”
Sample Clause: “ “The Hotel and Group both agree to carry Commercial General Liability insurance, or be self-insured, in the amount of $x per occurrence and $x in the aggregate for protection against any claims arising from activities conducted at the Hotel during the meeting. In addition, both parties agree to carry [type of] insurance in $x amounts and to provide current certificates of insurance.”
Tyra Hilliard: “This clause may be overly simplistic and ideally should include the amounts of insurance each party needs to carry, but the concept is valid. Insurance is one of the essential risk-mitigation tools. In simplified terms, it requires a shift of the risk of paying for damage or loss to the insurance company.”
4. Americans With Disabilities Act
Sample Clause: “ “Hotel’s Responsibilities:
1. 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: 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 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: i. 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.
Stephen Barth: “This clause needs to be included so that each party understands what their obligations are under this law. Once that is accomplished, it is just a matter of execution. All too often, this allocation of obligation is not included in contracts and the law gets unintentionally violated because one party presumes that the other party is going to take the steps needed to comply.”
Stephen Barth, founder of HospitalityLawyer.com, is an attorney and professor of law and leadership at the Conrad N. Hilton College of Hotel and Restaurant Management at the University of Houston. He can be reached at firstname.lastname@example.org. Tyra W. Hilliard, Esq., PhD, CMP, is an attorney, speaker, and multipreneur with Hilliard Associates LLC. She can be reached at email@example.com.
Editor's Note: This article was originally published in April 2010.
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