Liability waiver templates are plentiful online but there are many potential legal issues in using a downloaded liability waiver template.
Release of Liability
Release of Liability Form: Common Questions
Please Note: The information on this website is intended for informational purposes only. These are common questions that we are asked and our responses are general information. The information and materials on this website, including the questions and answers, are not intended to be, nor should they be interpreted as, legal advice or opinion.
A release of liability (sometimes called a “liability waiver”) is a legal agreement that educates a signer about the risks inherent in a given activity, then gives them an opportunity to assume those risks, waive their right to sue, and release the applicable person or organization from liability. In simpler terms, signing a release of liability means you’re saying “I know the risks, I accept them, and I won’t hold you responsible for any mishap.”
What a Release of Liability Can Protect Against
These agreements can be used to defend businesses, organizations, and individuals from a number of legal arguments, including (in layman’s terms):
- “I didn’t know the risks”
- “I knew I might get injured, but I didn’t think it would really happen”
- “I never said I wouldn’t hold you responsible if something went wrong”
Is it good idea to use a template for my liability waiver?
Why do I need a release of liability form?
It is critical to get a release of liability form (also called a waiver) from your customers for several reasons. One is to protect your company and your employees from liability. The form is called a release because participants who sign it are releasing your company from liability for injury and damage they may encounter during the covered activities. A well-crafted and signed release of liability form can help protect your company against a negligence claim from one of your customers. (Negligence is the failure to use reasonable care that results in injury or damage to a person to whom you owe a duty of care.) If you are ever sued or threatened with a suit by a customer who signed a liability waiver, you can use the waiver to assert a contractual defense to liability – in other words, the customer has entered into a contract with you not to hold you liable for any claimed negligence. A well-drafted release of liability form may also help you demonstrate that your customer knew about and assumed the risks inherent in the activity. That offers your company another layer of protection against liability.
Does a liability release protect my customers?
Yes, in fact, another reason for a release of liability form is to protect your customers. A well-drafted release educates potential participants about what risks they might face as part of the covered activities, and if applicable, what kind of skills they need to participate safely. The participants can use that information to decide whether the activities are right for them. Many will decide to go forward, knowing what is involved; a few might not.
Who should sign the waiver?
Each adult participant should sign his or her own waiver. Courts are more likely to enforce a waiver that was signed by the adult participant, rather than another on the participant's behalf (such as a group leader).
How well does a liability waiver protect a company in a lawsuit?
Waiver law is based on state law, which can vary greatly. So can the way state courts interpret waivers. Courts are more likely to uphold liability waivers that are well-drafted to meet certain requirements. Courts look at things such as whether the waiver was clear, unambiguous and explicit (good); whether the injury resulted from risks identified in the waiver (good); whether the waiver was signed voluntarily (good); and whether the waiver violates public policy or state laws (bad). Other characteristics of a good release of liability form are: it is a standalone document (instead of language crammed into a larger contract); it has large and prominent print; and it was signed by the participant rather than by someone else on the participant's behalf (such as a group leader). It is important to remember that liability waivers release only negligent acts and omissions – they do not release your company from liability for deliberate wrong-doing or gross (really bad) negligence. Note that a few states do not allow liability for negligent acts to be waived.
Where can I find legal counsel to help with my release of liability form?
WaiverSign strongly recommends that you consult with an attorney familiar with your state laws, business type and the drafting of liability waivers. The attorneys listed in our getting help with your liability waiver section handle liability waivers. You can also check with your local bar association.
What a Release of Liability Doesn’t Cover
Releases are designed to protect businesses, but they’re not foolproof. Here are a few of the things that can undermine the veracity of your release of liability in court:
- Failing to give the signer enough time to read (“signing under duress”)
- Administering a release that’s not relevant to the activity
- Instances of “gross negligence”
- Instances of intentional harm
- Causing the signer to sign “under duress”
Should I have my release of liability form signed online or on paper?
Changing from having your release of liability signed on paper to an online version is no small change. It may require some significant modifications in processes. That said, there are some important benefits to consider when signing online and a few that might hold you back.
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.
Read more about electronic signatures on waivers and laws that make this possible.
What is the cost of using an online release of liability form vs a paper liability release form?
This is an important question to understand as you consider switching from paper to online. There are many factors that vary from business to business. The quantity of releases signed, the way in which they are presented to participants, how the releases are then collected and organized, and the method of storage all affect the actual cost of using paper liability release forms. In our research, we generally find that using an online release of liability form vs a paper version will save you money, and in many cases, online release forms are substantially less expensive.
Do participants read an electronic 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. WaiverSign also sends an email of the signed waiver to each participant email address so that they are given the opportunity to read it again.
What forms of electronic signatures are considered legally binding?
Federal Statutes passed in 2000 defined the use of and legality of electronic contacts and “electronic signatures.” The E-SIGN statute, in effect, legalized the use of electronic and online waivers. The statute stated that a “. . . signature, contract, or other record relating to such transaction may not be denied legal effect, validity, or enforceability solely because it is in electronic form; and a contract relating to such transaction may not be denied legal effect, validity, or enforceability solely because an electronic signature or electronic record was used in its formation. 15 U.S.C. § 7001 (a) (1) & (2)
The use of an “electronic signature” is defined as “an electronic sound, symbol, or process, attached to or logically associated with a contract or other record and executed or adopted by a person with the intent to sign the record” was also addressed. 15 U.S.C. § 7006 (5)
So, whether a client is actually signing a digital input screen with a finger or a mouse, or simply asked to click on a box with an “X” in order to agree to accept the terms of the waiver, the client is, in effect, signing a binding contract. It’s kind of like swatting away a fly from around the top of your head when you’re at an auction. With that little shoo-fly-don’t bother me hand gesture, you just bought yourself a clay vase from the Ming Dynasty.
Are insurance companies happy with the digital liability waiver process?
From banking to real estate transactions, more and more industries rely on, and indeed prefer, the electronic approach to serving up documents, and receiving signatures. That said, we recommend 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, a driver’s license or other unique document identification number. Much of this information is checked for accuracy and completeness when it’s entered in the online form. 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. That said, we also recommend that you discuss with your lawyer your current process for administering waivers and ensuring all participants have signed prior to their participation in any of your services. There are many other steps that you can work into your business processes that will help act as a defense if necessary.
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 Amazon Web Storage. In the event of any data breach, WaiverSign will respond quickly and promptly notify customers.
Are online waivers valid in my state or province?
Each state or province may have different laws regarding the use and process for using online waivers. This is another important question you should discuss with your lawyer as you are reviewing your conversion from paper waivers to online.
Should waivers be filled out in advance?
Legal opinions on this may vary, so you should check with your own legal counsel about your particular service, but often the thought is that providing the link in advance gives your participants ample time to understand the risks prior to any time they may invest in traveling to your location or the possibility that they may be rushed in filling out your waiver due to a late arrival.
WavierSign Can Help
Our team here at WaiverSign isn’t really qualified to write releases of liability, but our digital document tool can make your releases a lot easier to use. WaiverSign can enable you to:
- Allow your customers to sign from anywhere
- Give your releases to your guests well in advance
- Escape the tyranny of physical storage
- Make signed releases retrievable in just a few clicks
- Save money on paper copies
- Ensure every release is legible
- And more
How do I put my digital release form or waiver on my website?
It is so important for your customers to be able to find a link to your waiver on your website. The steps are fairly simple. In a nutshell, you’re going to build a page on your website, introduce your online waiver on the page, and add a button that links to your online waiver. You’ll find the link creator under WaiverSign > Edit Documents > Create Link to Documents. If that sounds complicated, WaiverSign’s web team will be happy to help you set it up.
How can I add a link to my online waiver in an email?
Just visit WaiverSign > Get Signing Link. You’ll simply copy the link and paste it into the body of the email that you’re sending.
How do I set up a kiosk for my online liability waiver?
Setting up a kiosk does require some additional hardware like an iPad (or other tablet) and a kiosk enclosure for the tablet. Once you have that, you’re ready to install the kiosk application and set the “homepage” of the kiosk to your waiver signing process. WaiverSign has a special “kiosk mode” that you can select when grabbing the link to your document(s) at WaiverSign > Edit Documents > Create Link to Documents. This kiosk mode will actually cause a countdown to appear on the screen when there hasn’t been any activity for a while. If the countdown runs out and the user does not request more time, the kiosk will reset to the start screen so that the next person who approaches the kiosk is not confused as to where to start.
Can my participants sign multiple liability forms at once in WaiverSign?
Yes! WaiverSign makes it incredibly easy for your participants to only fill out their information once and then sign as many documents as needed, using that same participant information. Many businesses will present more than one document such as a liability waiver, followed by a photographic consent form, followed by a rental agreement. This division of documents allows the critical liability waiver to not get diluted with the wording of the other documents that also require online signatures.
Can I collect custom information on my liability waiver?
In addition to 16 optional standard fields, WaiverSign also provides the ability to add an unlimited number of custom fields. You can select from a general text field or text area, a drop down list with single selection, or a checkbox list with multiple selection.
Do I own my waiver once I build it in WaiverSign?
Yes. Whatever you enter in WaiverSign is your content and you are ultimately responsible for any updates or edits to that content.
Can I market to my contacts who fill out waivers?
WaiverSign does provide a checkbox for your participants to specify whether they wish to receive or not receive communication by email from your business. Each person who signs an online release of liability or similar document will appear under “contacts” inside the application. These contacts can be exported and used for marketing or other purposes. However, you must not send marketing emails to those who have opted NOT to receive emails from you. If you do, you run the risk of being flagged as spam which will make it harder for you to deliver emails to those who actually want to receive emails from you.
Can I export my lists?
WaiverSign allows you to export lists for all your contacts as well as those who have signed during a specific date range or for participants who have signed for a specific event.
What do I do if someone wants to sign on paper?
Legally, you need offer the ability to sign on paper even though you offer a service to sign online. Make sure the wording in your paper waiver is kept up to date with the wording in your online waiver. Keep several paper waivers on hand and a PDF copy of your paper waiver as well in case you need to send it to someone by email.
How do I get all the participant data from signed waivers 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.
Can I organize my waivers into groups or all they all lumped together?
In WaiverSign, you can create groups of signed waivers by creating an event. An event can be as simple as a name or it can contain an event name and a date and time. Perhaps you manage race events and each race takes place in a different location on a specific date. You want to view signed waivers for each individual race and perhaps have a coordinator or manager over each race who has access to see who has signed for each event. You can easily set up these individual events inside WaiverSign and then create a link to sign your waiver that also associates the specific event to that signature. Alternatively, you can let your participants select the event in which they are participating when they sign your online waiver.
Can I present a document in the language of my participant?
WaiverSign currently offers english and spanish versions of the signing process. If you need to present your liability waiver in another language, let us know and we can build an additional language bundle to support that language. You will be responsible for the actual translation of your liability waiver or other document into any languages.
How can I make sure all required fields have been filled out by each participant?
The electronic signature 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 liability waiver or agreement cannot be submitted until these required fields are properly filled in.
How will I 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 Resmark Reservation & Marketing 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.