Is there a precedence of electronic signatures on liability waivers being upheld in court?
Electronic signatures, also known as e-signatures or eSign, have arrived and are here to stay. Laws in the United States and many other countries make e-signatures as valid as paper and ink signatures. These laws include the following:
- The E-Sign Act: In 2000, the Electronic Signatures in Global and International Commerce Act (known as the "E-Sign Act") came into force. In order to advance e-commerce, the E-Sign Act made e-signatures as valid handwritten signatures and provides guidelines for their use in commercial transactions. The E-Sign Act controls in the absence of state law or where a state has made changes to the UETA (see below) that conflict with E-Sign.
- The Uniform Electronic Transactions Act (UETA): In 1999, the National Conference of Commissioners on Uniform State Laws adopted the Uniform Electronic Transactions Act to bring consistency to state laws on electronic signatures by providing a model legal framework for states to follow. Like E-Sign, the UETA makes electronic signatures as valid as handwritten signatures. Forty-seven states, the District of Columbia, the U.S. Virgin Islands and Puerto Rico have adopted the UETA into their laws. While Illinois, New York and Washington, have not adopted the model law, they have their own laws pertaining to electronic signatures.
- International: Many countries, including Canada and those in the EU, have also enacted laws on electronic signatures. For instance, the European Union has a community framework for electronic signatures (directive 1999/93/EC of the European Parliament and of the Council of 13 December 1999 on a Community framework for electronic signatures) that various member states have adopted. Canada has passed federal and provincial laws that recognize the legality of electronic signatures, including the Electronic Commerce Act 2000.
Since the E-Sign Act and Uniform Electronic Transactions Act (UETA) in 1999 and 2000, electronic signatures or “e-signatures” have been upheld in numerous court cases. There is no reason to believe that electronic signatures are any less valid on liability waivers than other types of contracts.
Do participants read a digital waiver as closely as they would a paper waiver?
Although people often breeze through various online terms and conditions, WaiverSign has created a process that ensures the entire liability waiver or agreement has been viewed prior to applying an electronic signature. In addition, WaiverSign emails the digital waiver to each participant immediately following a reservation or sale, thereby giving the participant(s) more time to review the liability waiver. In contrast, paper liability waivers are often presented immediately prior to participation, giving the participant very little time to fully review the agreement (an argument many participants often make in court). Also, participants who sign paper waivers do not generally receive a copy of their signed paper waiver, whereas WaiverSign automatically emails an electronic copy of the signed liability waiver to participants, allowing ample time (if participants signed in advance) to review the liability waiver again.
Are insurance companies happy with the digital liability waiver process?
It is our understanding that electronic liability waivers forms are generally accepted by insurance carriers. We recommend, however, that you confirm with your own insurance carrier that they accept electronic liability waiver forms with electronic signatures.
How can we be sure that each participant individually signed a waiver?
As with paper liability waivers, there is no guarantee that each individual signed their own waiver, however, the WaiverSign process provides many features not available with paper waivers. WaiverSign records the signer’s IP address and a timestamp as to when the liability waiver was signed. This information is a feature of the document’s audit trail. WaiverSign also requests information from each participant who submits a signature, including name, address, date of birth, email address and, in some instances, driver’s license number. This information is validated if the format is correct as entered. With paper waivers, participants can simply have a spouse, friend or other person sign on their behalf. The steps taken by WaiverSign are more robust than when someone simply turns in a paper waiver form that could have been signed by someone else.
How can we make sure all required fields have been filled out by each participant?
The esign process of WaiverSign ensures that each participant fills in information for every required field. Formats for phone numbers, email addresses, dates of birth and others are validated to ensure proper formatting and completeness. A digital liability waiver or agreement cannot be submitted until these required fields are properly filled in.
How will we know that each participant has filled out a waiver prior to participation?
WaiverSign makes it easy to lookup participants by name or an entire group at once by using a group ID number to ensure signed liability waivers have been submitted. WaiverSign also provides integration for third party systems such as the Resmark Reservation System, which allows you to easily see the esign status of all participants. If any participants are missing, WaiverSign can be used to collect the signed waivers for these individuals.
Is my participant information secure online?
WaiverSign takes the privacy and security of its customers’ information seriously. WaiverSign adheres to national and international security standards that are designed to protect customer data, including SSL, OAuth 2.0, and Google Cloud Storage. In the event of any data breach, WaiverSign will promptly respond and notify customers.
How do I get all the participant data into my primary system?
WaiverSign provides integration capabilities for third party systems that allow the participant data to automatically sync. If this type of integration is not available with your system, you can simply use WaiverSign as the primary storage location for participant data and even generate email lists and other reports directly from WaiverSign.
Are electronic signatures stored separately from the agreement?
The signed agreement is stored as a single PDF document. The participant's signature is part of the PDF itself and is not stored as a separate file. The PDF is stored on secured servers with access controls and audit logs in place to ensure that the document has not changed since the time that it was created.
What is the cost of using software over a paper system?
The WaiverSign system is less expensive than a paper system because it saves your company the cost of paper, printer-related items, storage space, filing cabinets, and time. Companies that rely on waivers are increasingly demanding and moving towards an electronic waiver system. They recognize the many benefits of an online waiver system over paper: the cost savings, a better audit trail, reduced burden on personnel including those in the field, greater ability to track and access waivers efficiently and more.