How to Ensure Your Waiver is Enforceable

Featuring Attorney Anthony J. Ellrod and WaiverSign CEO, Brandon Lake

Will your liability waiver truly protect you and your business?

Ever wonder if your liability waiver will really protect you and your business? Is it worded properly? What should you be prepared for if you end up getting sued? Have you accounted for all the relevant laws in your state or country?

These are just some of the topics that attorney Anthony Ellrod will be covering in this much-anticipated webinar. Join us and find easy and affordable ways to protect your business and your assets with a properly prepared waiver and release of liability.

During this webinar, you’ll learn the following:

  • "Must-have" language your waiver needs to make it enforceable
  • 8 common claims plaintiffs make and how to defeat them
  • How waivers vary by state and what you need to know
  • What not to do if you have multiple agreements to be signed

Webinar Resources from Tony Ellrod

Our presenters

Anthony Ellrod

Anthony J. Ellrod

Anthony J. Ellrod, a founding partner of Manning & Kass, Ellrod, Ramirez, Trester, holds an AV Preeminent® rating from Martindale-Hubbell, and is a member of the American Board of Trial Advocates (ABOTA). He was named a 2012-2019 Top Business Litigation Attorney by Pasadena Magazine. In 2005–2010, and 2016-2021 he was selected as a "Super Lawyer" by Law & Politics, an organization that honors the top 5% of the California Bar based on a detailed peer-review survey, followed by a blue ribbon panel review. In 2009, 2010, and 2011 he was further honored by being included as a "Super Lawyer" in the Corporate Counsel Edition, and in 2009 and 2010 by inclusion as a "Super Lawyer" in the Business Edition.

Mr. Ellrod presently heads the firm's Sports, Recreation, and Attractions Law Teams. He developed expertise in sports, recreation, and attractions law early in his career, and is nationally regarded as one of the leading experts in sports and recreation law. He has conducted numerous successful jury trials, in both state and federal court, and has argued numerous times before the California Court of Appeal, and has obtained published opinions favorable to the sports and recreation industry. He represents many of the largest health club chains and attractions in the country, as well as various self-insureds and governmental entities. He also represents some of the nation’s largest sports and recreation industry trade groups.

Mr. Ellrod serves as pro bono general counsel for the Malibu Special Education Foundation, which is dedicated to supporting students, families, and educators in the Malibu Special Education community. He also serves pro bono as a board member and general counsel for the Aurelia Foundation, whose mission is to create state-of-the-art day programs for adults with disabilities. Mr. Ellrod is a 7th-degree black belt in Yoshukai karate and presently acts as assistant West Coast director of the World Yoshukai Karate Kobudo Organization.


Brandon Lake

Brandon is the CEO of Resmark & WaiverSign and also co-owns and operates Western River Expeditions and Moab Adventure Center. Helping grow these successful businesses over the past 20 years has given Brandon unique insight as to what truly generates results. He is passionate about sharing those insights and helping other businesses succeed. Outside of the office, Brandon enjoys exploring the world by raft, bike, and foot with his wife and children.

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Brandon Lake:
I'm Brandon Lake. I'm the CEO of WaiverSign. I am super excited to have with us today Anthony Ellrod, or as we like to call him, Tony.

Tony is a founding partner of his law firm where he heads the firm's sports, recreation and attractions law teams. He was named a top business litigation attorney by Pasadena Magazine and selected as a Super Lawyer by Law and Politics. Tony is nationally regarded as one of the leading experts in sports and recreation law. He is conducted numerous successful jury trials both in state and federal court. He represents many of the largest health club chains and attractions in the country, as well as some of the nation's largest sports and recreation trade groups.

And Tony also does some generous pro bono work for the Malibu Special Education Foundation and the Aurelia Foundation that works to create programs for adults with disabilities. And to top it all off, Tony is a seventh degree black belt in Yoshukai karate, I don't know if I'm saying that right, Tony. And he's presently the assistant West Coast director of the World Yoshukai Karate Kobudo Organization. So needless to say, I am quite excited to have Tony with us today. He's going to go over perhaps one of the most important topics we could be discussing, which is how to ensure our waivers are enforceable.

Before I turn this over to Tony, I want to note that we are going to take live questions at the end. So be sure to send any questions you have during the presentation through the little questions tab down in the lower right hand corner of your screen. You should see a little tab there that says questions. You can click on that and start plugging those in. We'll likely hold most of those questions until the end and then we'll be able to answer those live.

And just to give you a sense, Tony, of who we have on our call today, we actually have companies from all over the world ranging from Japan to Jamaica, The Bahamas, the United Kingdom, and several in the United States. So we do actually have a lot of WaiverSign clients joining us and others and the industries range from tours, activities, sports, fitness, resorts, amusement parks, and so many others. So hopefully that gives you an idea of who we're speaking to. Again, we're super excited to have you. I'm going to go ahead and turn it over to you and let you get started and walking us through this important topic.

Tony Ellrod:
Great. If you can pull up my presentation screens, that would be good. Hello everyone and thanks, Brandon. I appreciate the introduction. Again, my name's Tony Ellrod. I'm with Manning & Kass. We've got offices throughout California, New York, Texas and Arizona. And I run a team of attorneys that specializes in sports, recreation and attractions. We represent everything from health club chains to cycling, diving, whitewater rafting, horseback riding, anything that typically involves a release of liability or an assumption risk. And we've handled literally thousands of cases where our clients are being sued and we're asserting a release of liability as a defense to that action. Brandon, can you pull up the presentation?

Brandon Lake:
Yeah, let me go ahead and get that up here. I thought I had that already.

Tony Ellrod:
There we go. You can go to the next screen, if you would. So in order to understand the application of release and express assumptions of risk, you kind of have to understand what negligence is. And in a nutshell, negligence is a duty owed to the plaintiff, conduct falls below the standard of care and therefore breaches that duty of care, and resulting damages that are actually caused by that breach of the duty. So on the issue of duty, now duty is a question of law and what that means is that whether or not a defendant owes a duty to a plaintiff and that duty is to not engage in conduct that causes injury, that's decided by a judge, not a jury. And that's an important distinction later on. So that's the difference there.

And duty, typically it can be, for example, if there's an injury in a parking lot, well does the owner of a store that's in that strip mall have a duty to that plaintiff to make sure that the parking lot is safe? Or duty is often an issue, for example, if there is a situation where there's a criminal act. Let's say there's an attack on a patron or something, and the question is whether the owner of that business has a duty to protect its patrons from the criminal acts of third party. So then that's a pretty complex analysis, but that's the first burden that the plaintiff has to show.

The second is whether that duty was breached, and that's typically the focus of most litigation, whether or not whatever the defendant did fell below the conduct that's reasonable and therefore was a breach of the duty of care that was owed. The next issue is whether there were resulting damages and that's typically fairly straightforward. And then whether the damages were caused by the breach of the duty. And that often is also an issue that's litigated. For example, if you have somebody that slips and falls in a store, or let's say they slip and fall and there's a puddle next to them, but there's no track marks in the puddle of water. The plaintiff doesn't know whether the puddle is what caused them to slip. It could be that there was a breach of the duty because a puddle of water was allowed to exist, but there's no evidence of causation that puddle of water actually caused the accident. The causation is frequently an issue as well.

If you go to the next slide, Brandon. So looking at exculpatory agreements, as I referred to, which is release and express assumptions of risk, they are based in contract. It's a contract between the plaintiff and the defendant where, in the case of release, the plaintiff agrees to release the defendant from any liability for injuries to the plaintiff resulting from negligence of the defendant. The express assumption of risk is a bit of a different thing. The express assumption of risk is actually the plaintiff saying before the activity, I'm going to relieve you of any duty to me. And therefore if there's no duty...

Brandon, can you go to the prior screen again? So on that first prong there, the duty to the plaintiff. If there's no duty before the activity, and let's say it's a whitewater rafting trip or whatever the case may be, horseback riding, the plaintiff says, "I'm going to release you of any duty to me to act with reasonable care." Then there being no duty, there can be no negligence because that's the first prong of the negligence analysis. You can go to the next screen again, Brandon, if you would.

Typically these things are argued hand in hand that release and express assumption of risk. Both are a a complete bar to any claim liability. The distinction becomes important in certain types of cases. For example, in a wrongful death case. In wrongful death case, it's not the deceased that's necessarily suing, it's the heirs of the deceased and the deceased doesn't have the ability to waive the rights of the deceased's heirs. A release of liability would be ineffective because the decedent can't release the rights of the heirs. However, if the decedent, before the activity, relieves the defendant of any duty of care, then there's no negligence in the first place and if there's no negligence, then there can be no claim either by the decedent or the heirs because there's simply no negligence. There's a few circumstances where that distinction becomes important.

If you can go to the next slide. So in order for a release or an express assumption of risk to be effective, there are several prongs. I practice primarily in California, so a lot of the discussion that I'm going to address is as to California law. However, the vast majority of states have very similar laws and most of them, in order to enforce a release of liability, the release has to be conspicuous, meaning that it has to draw the attention of the reader of the agreement to the release. And this is an objective standard. This is a standard where the court will look at the release itself, the contract in which the release is embedded and determine as a matter of law, whether it's sufficiently conspicuous. This is the type of thing where you want to have the release language, assuming that it's not a standalone release and that it's embedded in either a membership agreement or some sort of participant agreement, that type of thing. You want to make sure that the reader's attention is called to the release language.

So you want to have maybe big bold letters right by the signature line saying, "Warning, this agreement includes a release of liability where you're waiving your right to sue." Look at paragraph five or whatever the case may be. The release language itself should be at least as large as the rest of the print in the agreement, perhaps larger. It should be capitalized, it should be bolded. So that's oftentimes an argument that will be used to defeat a release. But you have to make sure that a reasonable person is going to be looking at this document is going to notice this release of liability.

In fact, there are judges that will do whatever they can not to enforce releases of liability. They're few and far between and oftentimes that will be corrected by a court of appeal in the appropriate circumstances, but they will search for any reason not to enforce a release. I had a case where the judge wouldn't enforce a release that was very clear and very conspicuous. In the judge's order he said, "It appears that the form and language of the instant agreements were devised in order to create the appearance of being conspicuous, in compliance with the law, but to avoid clearly calling the release provisions to the signer's attention, perhaps to the potential detriment of business." That just illustrates how certain judges are so philosophically against the release of liability for negligence that they will do whatever they can not to enforce the agreement. Here, the judge was saying that this document gave the appearance of being conspicuous. How can you give an appearance of being conspicuous? Either it's conspicuous or it's not. But in any event, typically those types of decisions are overturned by the court of appeal.

The next issue is that the release must be clear and unambiguous. And again, it goes to kind of a reasonable person's standard. If a person reading this release of liability would believe that it encompasses the activity where the injury occurred, then it should be enforced. A lot of times you'll see releases that don't include the word negligence. In most states, you don't need to include the word negligence. In other words, if you say, "You agree to release me from any and all claims of liability," most states, that will be deemed to include claims of liability for negligence in fact. But for negligence, you don't even need a release. So most states and courts in those states will read the word "negligence" into the language of the release. However, the best practice obviously is to include the word release in your language so that it's clear that anybody reading this agreement knows that they're releasing claims for injuries arising out of the negligence of the person putting on the activity.

The next thing is that it must be clear that it encompasses the activity involved in the circumstances that led to the plaintiff's injury. And this is an interesting issue for people like us to actually write releases because you'll see releases that say, "You release us from any liability for our negligence, including negligent inspection of the premises, personal training, your use of the sauna, the steam room." And you'll see this laundry list of potential areas where we could be negligent. The problem with listing all of those things is that you get an argument that if this particular activity that caused the injury isn't one of the items on that list and it wasn't intended to be released. And on the other hand, if you have very general language saying, "You release system liability for any negligent act," you get an argument that, "Well, no one would've anticipated that this particular unusual negligent act would've been encompassed in that release."

So you're always faced with too much or too little. Do you go into too great a detail or not enough detail when you're writing up the piece? And again, it typically would be just what a reasonable person would believe is encompassed by the release. The other issue is you need to address time in a release. There was a parachuting case where someone had signed a release before doing skydiving and then years later was involved in a separate skydiving activity, not at this particular field, but by the same organization. And it was a night dive over water and the person ended up dying. But the release said, "You release us from this day forward into the infinite future for any claims." And the court said, "Look, the fact that this particular release was signed years later in an activity at a different location does not prevent the application of this release." And they found that the claim was barred because the language of the release was clearly intended to encompass this future activity.

In the other end of that spectrum, there was a case where a prominent attorney actually died diving at Catalina Island and the release that he had signed was limited to "boat dives for multiple day rentals" and he had participated in a single day rental. And the court said no because you specifically said it only applies to boat dives for multiple day rentals and this was not a boat dive and it was a single day rental, the release didn't apply. So that was a situation where they tried to incorporate too much detail and it came back to bite them. But in any event, what's crucial is that a lot of thought be given to the language of these releases so that you make sure that a reasonable person who's going to read this release is going to know that it encompasses the activity where you're exposed.

If you can go to the next slide. The next important thing to understand is the types of defenses that you will typically get to the application of a release. So a plaintiff files a lawsuit, you respond to that lawsuit and you say, "Look, this claim is barred because the plaintiff's sign of release and express assumption of risk and therefore the claim is barred in the action should be dismissed." The typical arguments that you see is that, first of all, "I didn't read this release so I can't be bound by it." Typically, most state laws will say, "If you sign an agreement that is clearly an agreement or a contract, you're bound by the terms of that contract whether you read them or not." In fact, there are cases in California where non-English speaking people signed an agreement that included a release and said, "Well, I couldn't have read this release because I don't even read English."

And the court said, "No, no, no. If you're signing an agreement that's clearly a contract and it has a release and you can't read it, then you find someone that you trust to read it to you. But we're not going to let you out this contract simply because you signed it and couldn't read it." But again, this goes back to the conspicuous of the release. If the release language is buried in a bunch of boiler plate in a five page agreement, then a court might say, "Well, it's not unreasonable that you didn't read this particular language because this is all this huge long contract and this is just buried in the middle of it." So again, the conspicuous issue comes into play. You want to make sure that your release is going to draw the attention of the reader to it above and beyond the other language of the agreement.

The next defense that we see in application of the release fairly typically is that the plaintiff didn't sign the release. And this happens a lot of times if someone gets a health club membership agreement for him and his spouse or his spouse and his kids or somebody arranges an event on a boat and they sign a release on behalf of the whole party. And the best practices, again, are to have every single individual who's going to participate in an activity sign their own release. But that doesn't necessarily mean that a release signed by someone else is not enforceable. And there's two real theories behind that. One is an agency theory is that the person who signed this release was signing it on behalf of and as the agent for the individual who was injured. Once the individual accepted the benefit by participating in the activity, they ratified this agent's actions in signing the release. And that's typically a fairly good way to enforce the release.

The other is a third party beneficiary theory, which is a contract theory that says that if a contract is entered into between two people for the benefit of a third party, that third party is bound by the terms of that contract, whether or not they read the contract. As long as they accepted the benefits, they also accept the burdens. So if I buy my wife a membership agreement at a health club and she goes and gets injured at that health club, she is still bound by the release and the agreement that I signed because she was a third party beneficiary to that agreement. And by accepting the benefits i.e. using the health club, she also accepted the burden, which is the release of liability.

Another issue that's frequently addressed is whether or not the release will bar claim by a minor. I have a document that I've written that analyzes the releases and the application releases on a state by state basis. And Brandon, I don't know if I've given that to you, but I can. And if you'd like, you can distribute it to anybody that wants it or anybody who's on this presentation. But this does vary quite a bit state to state. For example, in California, the issue, to back up, is that in the vast majority, if not all states, an unemancipated minor cannot be bound to a contract. They can bind others. But if you contract with a minor, you contract at your peril. In other words, while the minor can enforce the contract against you, you cannot enforce the contract against a minor. That would be including a release that's signed by the minor.

In many states, including California, if a parent or guardian signs a release on behalf of a minor, then that release can be enforced. My estimate would be it's probably 50/50 in the states with other states saying, no, a minor's claims can never be released. So that's something that you need to look at in your specific jurisdiction and venue. But in any event, if you're going to attempt to get a release from a minor, make sure that you get a release from a parent or guardian. And again, as you might imagine, the application of that can be quite difficult if you've got people signing up online or you don't know whether the person is actually the parent. But anyway, you should use your best efforts to make that happen.

Another issue which will defeat the application of release, which is not uncommon, is statutory flaws in the general contract. And again, this is primarily what I see. A lot of sports recreation activities are highly regulated. There are laws that impact how they must be run, what kind of records must be kept and what type of information must be included in an agreement. California has what's called the Dance and Health Studio Act, which specifically dictates what has to be in a health club membership agreement or a dance club membership agreement. And there's certain language that specifically needs to be... The exact wording has to be the same. It has to be placed in a certain spot in the agreement. For example, it has to be in a certain point type in California. For health club agreements, you have to have the term of the agreement in 14 point type immediately above the signature line. If you don't have the term of the agreement in 14 point type immediately above the signature line, the contract does not comply.

And as a result, failure to comply with that voids the contract. It's not voidable. It's deemed void. So for example, if I have a health club and I have a membership agreement that's signed and it has a huge release in it, but the term of the contract isn't in 14 point type immediately above the signature line, my contract's void as is my release of liability and I have no protection at all. So it's crucial that you need to have an attorney investigate the laws that govern your activity and make sure that whatever documents that you're using comply with any applicable laws or you risk your release not being enforced. So that's another area where we run into problems.

Now, to be quite honest, very-

Tony Ellrod:
... run into problems. Now, to be quite honest, very few plaintiff attorneys, at least in California and the health club industry world, they don't even know about these laws that govern contracts. And often they wouldn't even know to assert that the contract doesn't comply. But savvy attorneys do. And I've had cases where I've lost summary judgment on a release because the address to which you need to send cancellation, which has to be on the first page of the agreement, was on the second page. And lo and behold, that voids the whole contract.

The other argument that you see quite frequently is when the release is included in the contract it implicates the public interest. What that means in a nutshell is, for example, at least in California, a hospital cannot require you to give release of liability before they provide services. Residential housing, if you're leasing an apartment, they can't make you sign a release of liability, because the legislature believes that these contracts are too important to the base needs of society, that we're not going to allow someone to force a release of liability before providing those services.

And there's a half a dozen industries where it's deemed to be too important to allow releases.

Luckily, there's a lot of cases that typically say that this "implicating the public interest" issue does not arise in a sports recreation attraction scenario. If you want to join a health club, or you want to go horseback riding, or you want to join the swim team, those are not crucial activities to everyday life. And we are going to permit the companies running those activities to require release.

And in fact, if we don't, many of those activities would be entirely unavailable, because liability exposure would be so great that no one's going to get into that business. And finally, a number of things that typically cannot be released, and again, this varies a bit from state to state, but gross negligence, which is a difficult standard to prove, cannot be released. Gross negligence is typically the exercise of less care than a careless person would exercise.

It's the lack of any care whatsoever really, or throwing caution aside, even though it could result in significant injury. As you can imagine, what rises to the level of gross negligence is hotly litigated. That is often the focus of litigation, and often the place where a judge that does not like the application of releases of liability will punt. They'll say, "Well, I'm not going to grant this motion because it's a question of fact for the jury whether the actions of the defendant actually rise to the level of gross negligence." And it's an easy out for the judge.

I have, however, had courts of appeal reverse a judge making that finding, saying, "No, no, no, while it's often a question of fact for a jury, the fact of this case, there's just no reasonable jury could find that it rose to the level of gross negligence, so you need to reverse and grant this motion for summary judgment."

Product liability typically also cannot be released. And the reason for that is that strict product liability, which many states have, which means that a manufacturer, designer of a product is liable without having been negligent for damages caused by its product.

And the theory behind that is that the manufacturer of a product, if it's held liable for the sale for a product that it sells, it will simply increase the price of that product to properly be able to secure insurance to cover any liability, so that economics will adjust so that the cost of liability arising out of products will be spread among the consuming public.

So that's kind of the theory. And with that theory in mind, most legislatures and courts have said, "We're not going to allow for a release of that liability. We have already put in place mechanisms to spread that liability among the community."

Intentional acts, again, typically you can't get a release from someone committing a battery, or some other intentional act, that particularly in these days of mixed martial arts and things like that, can become an interesting question.

If I'm engaged in an activity, let's say I'm doing jiu-jitsu and my goal is to hurt my opponent, does that mean I can't get a release of liability for that, because it's an intentional act and the courts typically upheld, "No, no, even though it's an intentional act, it's part of the activity. It is actually a part of the activity and can be released"?

In fact, there's a very interesting opinion by the California Supreme Court. It involved baseball, and the pitcher actually threw at the guy's head and hit the guy and injured him. And he was sued saying, "No, no, this was an intentional act by the pitcher." And the Supreme Court justice that wrote the opinion and who obviously was a bit of a baseball historian, did a whole discussion of, since the creation of the game, even way back in the 1920s and '30s, there were bean balls or chin music or brushing them back. Throwing at somebody's head has been a part of baseball since the inception of baseball.

And so we're not going to find that even though theoretically you're supposed to be throwing balls and strikes as best you can, throwing at someone's head is simply part of the game. That's an intentional act, that it would exclude the application of a release.

But again, you have certain situations, if any of you were old enough, there was a professional boxing match between Mike Tyson and Evander Holyfield, where Mike Tyson bit Holyfield's ear off. Now certainly Holyfield couldn't sue Tyson for knocking him out, but he might be able to sue him for biting his ear off, because while trying to hurt your opponent is a part of boxing, no one would anticipate that if I get into a boxing ring, I'm risking somebody biting my ear off.

This is an interesting area, and frankly there's not a whole lot of law on it. But again, with the popularity of martial arts and mixed martial arts, I anticipate seeing a lot of quite interesting arguments in that regard, with respect to what's intentional and what isn't. And I think oftentimes it will require, not the breaking of a rule, but the flagrant breaking of a rule, or actions that are so outside of the scope of the ordinary conduct of the activity, that nobody would reasonably be believed to have accepted that as a realistic risk in engaging in that activity.

You can go to the next slide, if you would. So what does all this mean to you? Why is this important? And the reason is that a release of liability, in the industries that I believe most of you are in, is the most important weapon in your risk management. It is the most important shield between you or your company and liability.

And in fact, a week and a half ago, I was in London giving a presentation on nuclear verdicts, and between 2006 and 2010, there were 30 verdicts over $1 million. Between 2015 and 2019, there were 300 verdicts in excess of $1 million. This past August, there was a verdict for a personal injury claim for $1.7 billion. In July, there was a personal injury verdict for $7 billion. This is billion with a B.

Again, I spoke for an hour on nuclear verdicts and why they're happening and ways to address that, but it is a reality. Juries are coming back with larger and larger verdicts, and your business could be vaporized, even if you're properly insured. You could have $10 million in insurance coverage, and suddenly a jury comes back with a $20 million verdict, and you're done.

So the importance of having every potential weapon in your quiver, to protect yourself from being vaporized is hugely important. So it's really, really important that you put the time and money, and I know my clients hate to spend money on attorneys when they're not in trouble, when they don't have a problem. But the smart ones do, because that's how you avoid... Some smartly spent money today could save your company down the road.

So it's very important that you have someone prepare a release that's going to be as effective as it can possibly be, and that you have it signed properly and under circumstances that will allow it to be enforced. And it's crucial that you have someone in your jurisdiction review your releases, because the laws vary from state to state.

I would advise against going online and pulling some release off that you see, because who knows how well it's written, whether there are laws in your state that might make it not applicable, whether it's stale or old or whatever the case may be. Again, this is the first line of defense between you and potential liability. I think it's crucial that you do whatever you can to create an effective release, and do whatever you can to get it signed so that it's enforceable. Next slide, if you would.

Brandon Lake:
I think we're just up to our questions here, Tony.

Tony Ellrod:
Yeah, I think you might be right.

Brandon Lake:
Yeah. What you've presented here I think is fantastic. We've got a lot of great information, and we actually have a lot of really good questions that have already come in. So are you ready to jump in?

Tony Ellrod:
Sure, sure.

Brandon Lake:
Okay. Let me just ask, before I get to the questions panel that came from the group, there are a lot of questions that we often get on the WaiverSign side, and I'm sure some of these are applicable to our group here today. And we talked a lot about the importance of specific content in the waiver, the way the language is worded, how much that matters. One thing we didn't really talk about is electronic waivers versus paper waivers. There's obviously been a big shift towards electronic, and the question we often get is, are electronic waivers or digital online waivers as valid as paper waivers?

Tony Ellrod:
Yeah, and that's a good question, and I see that all the time as well. In a way, electronic waivers are more valuable, and there's a number of reasons. So for one, there's a thing called the Uniform Electronic Transaction Act, which most states have adopted. And essentially what that says is that any document that has to be in writing, that writing requirement is satisfied if there's an electronic copy that can be printed or sent to the signer. So electronic contracts are absolutely enforceable.

That act also says that any action that is required to acknowledge your agreement is the equivalent of its signature. So if there's a clickthrough box, and I say, "I agree to the terms of this agreement," and I click the box or I click yes, and that takes you to the next screen, that is deemed a signature. And so the bottom line is that electronic releases are as, or more effective.

And then, boy, the reason I say more, is that in the old days or still these days, you'll see a written contract, and it'll have places for initials by important paragraphs.

And inevitably, the cases that I see are where someone, whoever was signing the person up, they didn't get an initial by this particular paragraph. And so then the argument becomes, well, look, my client initialed every paragraph except for this one, showing that my client didn't agree with this particular provision, which happens to be your release provision, and therefore it doesn't apply.

So you have human error with written contracts that can create an argument that it shouldn't be applied. But with an electronic contract, typically, unless you click to agree, you simply can't complete the contract, you can't move to the next screen. So as long as, and the one thing that you do need in a litigation perspective, is that as long as you can call a witness that says, "This is how this works. When the person opens this screen, unless and until they click this "I agree" box and acknowledge that they read it, they can't get to the next screen. And unless they click this, they can't get to the next screen. And then at the very end, they agree that they accept it all, and they can't consummate the contract until they click that final box," that's very effective and absolutely enforceable.

Brandon Lake:
Okay. No, and that's some great feedback. And in fact, I'm going to pop out of this for just a second. I just wanted to share a couple of things, because you brought up a couple of points about initials and different things like that.

Let me just quickly show for those who are WaiverSign clients that are with us today, those who aren't, how does this work?

So just to show what you were talking about there, Tony, because I think that is really important. I'm going to just pick one of these examples. This is just a sample document. The language in here would absolutely fail in court, so don't pay attention to that. But this is kind of behind the scenes what WaiverSign looks like here. I just want to show what you were talking about, Tony, and kind of validate this. So here I am about to sign this document, and I'll just quickly sign it for one individual.

I could sign it for a minor, or for myself and a minor, or multiple minors if I wanted to. But I'll just make it easy and sign it for just me. Of course, I could have any fields I want here, that I could populate this with. Phone number, date of birth, full street address, anything I want to collect there could be collected.

And then it's going to tell me that in this case, one document is required, I click "begin signing." And I think, Tony, this is sort of what you're referring to. If I skip over a section that requires an accept or decline or an initial, and I come down here and just try to apply my signature, in which case creation of a signature like this, the system has created it using my name, that would be a valid signature. Correct?

Tony Ellrod:
In actuality, clicking the box, well, I'll touch on that when you're done.

Brandon Lake:
Yeah. Well, I think even just clicking a box could also be applied as a valid form of agreement. But in this case, I think we adopted something that makes it easy for people. Some would have, "Oh, I'm going to sign with my finger or my mouse." You end up with this big scribble because it's so hard to do.

So in this case, we just made it look good, and they apply their signature there. But what happens when I click the final button, I'm not able to proceed. And that's what you're referring to. Whereas on a paper agreement, I could just hand it back without it. And if the person attending is in a hurry, they may not even verify that I initialed all the proper boxes. And so now I have.

Tony Ellrod:
That's exactly right. And the other thing that I was going to mention is, yeah, because you have to click the agreement to proceed, then that's very valuable. It's saying that that person has taken action to show their agreement to this provision.

The other thing that's really good about what you do here, is I've seen online agreements where when you finish the agreement, it doesn't look like the agreement that you're looking at here. In fact, it might not even have a signature line, because the act of signing is actually the clicking of the button. But what's good about you showing the representation of a signature there, is because under some laws dealing with certain contracts, you have to have a signature line. So if what you generate at the end of the day doesn't include a signature line, then your contract may not comply.

So again, like I said, I've seen contracts that are generated when you agree to all those things. But what's generated at the end of the day does not include a signature line. It's very good that you do include a signature line here, because that will comply with the laws that govern a lot of different contracts.

Brandon Lake:
Okay. No, that's good. And so if I go back up here now, accept and initial, then I will be able to proceed.

The other thing that I think is valuable from a digital standpoint, we didn't see this here, but if I had improperly input my email address, for example, the system could validate that and say that that's not a properly formatted email. Or I put in a date of birth that doesn't make any sense. Or perhaps I put in a date of birth where my date of birth makes me a minor. Well, the system's going to say, "Wait a minute, you're signing the wrong document. You need to back up and sign the document as a parent or guardian on behalf of the minor." And so all of that stuff can be validated, whereas in the paper environment, we can't really do that. And that's really helped and I think gets at what you're saying here.

Well, so we had an example there. So another question that we often get, Tony, is you talk about a lot about the importance of using an attorney, to have them audit perhaps your existing waiver, or write a new one. How much does something like that cost? I think a lot of people shy away from it. They may find something online because, "I'll grab a, sort of take this one from the guy down the road, or find a template online, and I'll just use that and call it good."

Obviously there's some danger in that, but I think people maybe not approach an attorney because they think, "Oh, this is going to cost me thousands of dollars. What is the reality?"

Tony Ellrod:
So obviously attorneys, we work from templates as well. The difference is that every time I write a release, I make sure that my understanding of law is up-to-date, and the release is as complete and protective as it can be.

But if you have an attorney that has a familiarity with this industry, it shouldn't take more than an hour of attorney time to prepare a release. Absent some unusual circumstance, and what I do get oftentimes, and this isn't just with releases, but it's with all types of contracts, people will say, "Oh, here, I need this non-disclosure agreement, and can you do a nondisclosure agreement? Here's a sample that I have."

And frequently it's easier, and more economic and faster for me to start from scratch, because it's much harder for me to take somebody else's agreement. I don't know what's in there. I've got to read it carefully. I've got to move things around. I mean, it's harder to revise an agreement than it is for me to write it, because I've written it already. I'm just going through it, and making sure that it's up-to-date and up to speed, and that it's revised for the needs of my particular client. But really, it shouldn't be more than, to be honest with you, when we do releases as a one-off, it takes more time to set up a client in our system than it does to actually do the release.

But typically we're hoping that we get other types of business from the client, other transactional business or litigation business and that kind of thing. But it shouldn't cost an arm and leg by any means at all. It shouldn't take much attorney time to prepare an appropriate release.

Brandon Lake:
Yeah, okay. That's great. And that's very helpful. I'm going to jump into some of these questions that are coming from our audience here. We've got quite a few.

And as these answers come in, you guys that are listening here, feel free to, if you want to follow up on something, keep adding to this. We've got 16 of these so far.

So let me jump in. The first one here is, "Children cannot sign a release. Generally parents cannot sign a release on their children's behalf, except on nonprofit activities, school trips, et cetera." This may be specific to a certain state, perhaps. "How do we protect against children lawsuits later than, later age 18?"

Tony Ellrod:
Yeah, as I said, the application of releases to minors is probably the biggest variance in laws state to state. A lot of laws will enforce it if it's signed by a parent or guardian. A lot of states won't enforce it if it's signed by a parent, no matter what you do. And I think that the person who wrote the question, also, is sensitive to the fact that when a minor is injured, the statute of limitations doesn't begin to run until the minor reaches the age of majority.

So if you've got a five-year-old child that's injured, you don't know whether you're going to get a claim or a lawsuit for 13 years. No, actually it'd probably be 15 years, for a two-year statute, because it starts to run at 18 and then they've got the two-year statute. But the short answer is there really isn't much, if anything, you can do, from a release perspective.

Obviously there's best practices in actually running your business, but from a release perspective, there really isn't anything you can do. If you live in a state where a release will not be enforced for a claim by a minor, no matter what, whether it's signed by a parent or guardian or not, there's just nothing we can do.

Brandon Lake:
Okay. Well, and Tony, you mentioned you have that resource, which by the way, for our audience today, we will take that resource that Tony has, that talks about state by state, some of the differences. And we'll get that out to everybody so you can see that, look at your state.

Tony Ellrod:
Right. And that does include whether or not minors can be released.

Brandon Lake:
Right. Perfect. Okay. Next question. "Does a release, this is from a... "

Brandon Lake:
Okay, next question. Does a release... This is from a rafting outfitter in California. Does a release need to include the trip date and river sections? For example, this company runs several different stretches on the Kern River. Is that necessary or can it be more general language about the activity they're participating in and not include the date?

Tony Ellrod:
Not only can it, it shouldn't, and the example that I gave of that diving trip is a good example. You don't want to sign a release from somebody saying that you're doing a rafting trip on this portion of the current and then somehow you're on a different portion of the current. The person gets injured and they say this release doesn't apply. As long as the release covers the activity, then it should be broad as to geography and it should be broad as to time. It should be not on, you're not just releasing this date, you're releasing any time, any date from here to the infinite future. And it's not just for this rafting trip, it's for any rafting trip anywhere. Now there could be some minor... That might be a broad stroke for all the states, but for the vast majority of states, you want your release to cover anything and you certainly don't want to limit it to a certain portion of the river or a certain date. There's just no reason to do that.

Brandon Lake:
Sure. Well, and I'm assuming you could also have the issue where somebody changes the date and now they're going tomorrow because today was not weather and now suddenly you've invalidated your release.

Tony Ellrod:
Exactly. And also, there are businesses, rafting might not be one, but there are businesses where you have people coming in all the time. Horseback riding and you don't go that process of signing release each time. So once you get a release on file, as long as you've got it and it's going to cover every activity, then that makes that portion of your business easier as well.

Brandon Lake:
Perfect. Another question from the same outfitter. Do we need a separate closet release for Class five whitewater? So say one particular trip has classified whitewater, another one has class three. Should they be different or can we describe the risks to rafting in both of those releases and use it generally?

Tony Ellrod:
Yeah, I don't think you don't need different releases, but I would definitely write your release to have an acknowledgement that they could be in doing a level five. You want to make sure that it encompasses everything and that includes the most extreme portion activity as long as then if they sign a release that releases any whitewater rafting on all levels, then if they're on a level two, who cares? I mean, there's still release, they're on level five, there's still release, but you would want to address that. You want to make sure that somebody reading this says cannot take the position that, well, I signed this thinking I was going on a two and it's a five. You want this to say no, you're releasing anything. So that's how I would address that.

Brandon Lake:
Perfect. Okay. Here's another question. Legally, is waiver form and release form the same thing?

Tony Ellrod:
They are used interchangeably. It's a waiver of liability or release of liability. Probably the better word would be a release because what you're doing is you're releasing the person from liability for their negligence. The bigger distinction is between that and then express assumption of risk, which as I explained earlier, one goes to releasing liability for negligence. The other one goes to duty, which means there's no negligence in the first place. But even with between those two terms, release and assumption of risk, courts will use those terms interchangeably unless they're a recent not to. So those are all waiver, release, assumption of risk, those terms are frequently used interchangeably. Really, the different one would be assumption of risk.

Brandon Lake:
Okay. So you mentioned the topic of a parent or guardian signing on behalf of a minor. In cases where companies are having both, so they're having the parent or guardian sign for a minor and then they're having the minor also sign, is that always necessary or is it okay just to have the parent or guardian signing on behalf of the minor?

Tony Ellrod:
Typically the minor's signature is irrelevant because typically the minor can't be bound in the contract absent the parent signature. So you don't need to get both. I could see, I mean, it's a belt and suspender, so I don't see any downside to it. And I could see a 17-year-old maybe making some sort of argument that, "Hey, I'm an adult and my parents shouldn't have been able to sign this for me" or something like that. But essentially, legally, it shouldn't make any difference whether the minor signs, the minor signature is irrelevant. But again, there's no reason not to get both. It's easy enough to do.

Brandon Lake:
Yeah. But not necessarily a requirement either. And particularly with younger children, I mean to say, and in a digital environment, it gets a little funny too because you're saying, "Hey, I'm calling my six-year-old daughter over here to make sure she clicks the button."

Tony Ellrod:
And actually now that I think about it, sorry, I'm kind of thinking out loud. There could be a reason to get a minor signature and that is if a minor can't be bound to a contract until they reach the age majority and then after a certain period of time, if they don't disavow that contract, they're bound to it. So for example, I could see if you had a minor that's 17-years-old, years old and they sign a release of liability and then five years later they're still involved in that activity and they get injured, that release that they signed as a minor would likely bind them at the time of that accident. So again, I'm just trying to figure out potential here. I could see where it could come handy where you have a-

Brandon Lake:
That might be a certain case where a gym membership or something that has ongoing participation, whereas a one time participation in a rafting trip or something like that, maybe not quite as applicable in that case.

Tony Ellrod:
And I did have a case where we had a member, we had a health club member who had signed an agreement and we couldn't locate it, but she had also signed an agreement on behalf of her daughter who was a minor. And the contract said, you buyer and member agree to release it. So we actually were effectively able to get rid of that case, even though we couldn't find her contract, we used her minor daughter's contract because she had signed it as the buyer and under the terms was bound was releasing us as well. So there are unanticipated benefits.

Brandon Lake:
Yeah, yeah. Okay. Let me ask you this one. This is a two part question, but I'm going to read them together here. So this is someone who says, I work for a summer camp. Our registration happens all online now. We would like to incorporate our waiver and release into our online registration system and have parents check boxes that indicate they understand the release of liability and then apply their electronic signature. By having the release as part of the registration process rather than be a separate document, could that compromise our ability to enforce the release?

Tony Ellrod:
So it's an interesting issue because when you're going through, you have a process and then you have a contract. So if you have, for example, a registration contract where people are contracting for the services being provided at this camp, you could have a release that's embedded in that agreement and that would be typically enforceable unless there's some reason not to enforce that entire contract. Or you could have a release, that standalone release that they're agreeing to at the time they're going through the process of enrolling.

So for example, what I recommend to my clients is if you have a contract for services, include a release in that contract but also have a standalone release in case for some reason, that contract's not enforceable. Now the process of signing up online is going to be the same. The screen's going to come up and it's going to say, here's your participation contract and check here and check here and check here and you're going to check this box that that's the paragraph, that's the release, and you're going to check the other boxes about payment and everything else. Then you're going to sign that and the next screen is going to pop up. It's going to say, here's a release of liability. If you want to participate, we're going to require that you sign this release, check this one. So even though the process is all one process, they're actually signing different documents. One is going to be a contract that incorporates release and the other is going to be a standalone release. I recommend that you do both.

Brandon Lake:
Okay. And Tony, is it ever important, I know some people will do this, they'll put what looks kind of like a policy and you're checking the box at the bottom of it, at the time of checkout and one thing you often see is you don't end up with... So say there's a lawsuit and you need to go to court, you're kind of going back to the... There's nothing you can pull up and say this is what you signed. You can just say, well, my process eight months ago, it looked like this and this was the language we had on it. And who's to verify that that was truly the language because it didn't produce any sort of secondary document. And I don't know if that's an issue. And maybe just to give a comparison too, and then you can answer this. Let me share my screen one more time here.

So we actually operate a tour company as well, Couture Companies, Moab Adventure Center and Western River Expeditions. So in our case, we use a system that's called Resmark. Resmark is integrated very tightly with WaiverSign. And so when I go into book an activity, let's see, I come down here, want to book my full day Colorado River Adventure, I'm going to go through this process and perhaps I'm booking myself and two children and I choose my date, agree to these policies. Now one issue with, if this were the agreement, if my waiver for instance, were right here, I'm agreeing to this, but the issue I see from time to time with this format is I've just put, maybe I've even put my wife on here. So now I've got two of us, two kids, and I'm clicking this for everyone on their behalf and they haven't read it or seen it.

I don't end up with an individual contract. Now maybe in the summer camp sense, I can only sign up for one kid at a time. I am the parent signing up. I can somehow prove that. But what WaiverSign will actually do is I will go through this whole process, finish making my booking, and then once I'm done, I've collected payment and everything, the next step will say you are missing required participant information. And then it will walk them through signing for me. I'll have to pass the link over to my wife, she'll have to read it and sign it. And then one of us will choose to sign on behalf of our two children. And so now we've in, essence, have four contracts or waivers that are individually signed. They're in my email inbox, I have a copy of them. And all of that has happened in advance of their arrival. And so if you compare those two between signing policies that are embedded here versus individualized agreements after, what would you say to that?

Tony Ellrod:
So I think that as long as you have the information of the participants and i.e. The people that are going to be providing you with the release of liability and someone is properly signing on their behalf, then you should be protected. What's the interesting thing is, and again, this is addressed by the Uniform Electronic Transactions Act. If you're entering into a contract, and that's what all these things are, even if it doesn't look like a contract, if I'm paying you money for services and you're providing me services, that's a contract. What ultimately should be sent is a copy of the contract, or either sent or printable. That's what the says. So if I go through there and I click all the box and I agree to everything, that should generate a document that I can either print or will be emailed to me or both, and that document is the contract.

Now what's important is in regulated industries where there are laws that say what has to be in that contract, it's important that ultimately what is sent to your client includes that information and is in the format that's required by the law. So the document, and that doesn't necessarily have to happen when you are filling it out. It has to happen at the end when you sign it, here's your contract, boom. And that's a contract that needs to comply with whatever industry you're in. And as long as you do that, it's fine. And the reason for that is also because that way they have ultimately have a contract and that's also what you should save a copy of. Whether it be however you save it, it should be because how this would play out in court is that I would call you to the stand and I'd say, "Okay Brandon, we've got this, you gave me this contract here. How was that contract entered into?"

And you'd say, "Well, we've got this site here, look, this screen comes up and if you agree to it, you click, I agree, and then this next screen comes up and you click, I agree. And then after they all come up, you click, I agree to it all and then up pops this document and we give them a copy of that, they can print it out and we also email them a copy." And then do you also save a copy? Yes. And is this a copy? Yes. Now I've established, I've authenticated this contract, I've laid a foundation and this is the contract that exists between the parties and incorporates all those terms. But it's important that there ultimately be a document that is the agreement and that it'd either be downloadable via email or both.

Brandon Lake:
I think that that makes sense. And again, for those using WaiverSign, of course, you're able to go into signed documents where I can choose that one that I just signed here and see that full PDF that we just looked at. So they have a copy of that, you have a copy of that and it helps with that requirement, which I think is great. Okay, here's a great question. If all matters are covered, must the form be in legalese or is it still enforceable with layman's verbiage? And then an additional question with international clients, I aim for greater success of signature versus refusal due to intimidation of verbiage.

Tony Ellrod:
The answer to that is legalese is not what it should be. The way that this is going to be analyzed is that a lay person should be able to look at this and understand that they're releasing their right to sue for liability arising out somebody's negligence. If I say that in such a way that a lay person doesn't understand it's ineffective. It's not clear and unambiguous, which are some of the prongs, it has to be clear and unambiguous.

So legalese is again, there are terms of art that are used. There may be terms of art legal terms that are used in a release, but ultimately, it comes down to if a reasonable person reading this release would know that they're releasing the right to sue. And so while you may, even liability for, and there might be for premises liability or there could be terms in there that the person doesn't understand because that is legalese for lack of a better term. But as long as a reasonable person understands if they're releasing their right to sue for negligence on the part of the other party then, and it's a crucial by the way, that you can't just have a jumble of legalese that may say something in Latin but the reader doesn't understand it. That's not going to be a thing.

Brandon Lake:
Yeah, that makes sense. And the other question here I think is important, which is this concept of what to do in international cases. And I think there is probably a case, Tony, and maybe you can help answer this too, where if you do a lot of business with Latino people, for example, who English is not their native language, should you present the document and the process for signing in their language so that they truly understand it? Could they come to court saying, "I don't know, I had to sign this to participate. I don't speak that language and I didn't understand any of it." Would that be considered that that process is not clear, for example?

Tony Ellrod:
Most states have laws dealing with contracts and contract interpretation and many have laws that say essentially, if you negotiate a contract in another language, then the written contract should be in the other language. So for example, if I have someone that comes into my place and they want to go on a diving tour and they don't speak English, but I present them with a contract in English and we communicate as best we can and they sign that contract, that would typically be enforceable under California law.

If however, they come in and they're speaking Portuguese and I happen to speak Portuguese and we negotiate this deal in Portuguese and I'm compelled under California law to give them a Portuguese contract. So for example, if you have a business where you have Spanish speaking or Chinese speaking or whatever the language may be, you have employees that are speaking with potential clients and negotiating the agreement in another language, you should have a contract in that language and you need to have an enforceable under California law. And that's going to vary a bit by state by state too. So you should contact whoever contact counsel in that state, that's a fairly state specific law. But you're right, and it certainly can't hurt even if you negotiate, if you've got a Spanish contract and you negotiated it in English and the person speaks Spanish, I don't know, I might send them both. It's an exemplar. But yeah, certainly under California law, if you negotiate a contract in a different language, you need to provide a copy of the contract in that language.

Brandon Lake:
Okay. And that is something for those that use WaiverSign to think about, there is a place in the system you can go in and specify, you need to have it translated properly obviously, but you could get your contract into multiple languages and then, like we just showed, they can choose the language that they feel most comfortable with.

Tony Ellrod:

Brandon Lake:
Okay. Let's see. Someone's asking, is there a specific place online that we can go to find some of the little details you talked about, for example, 14 point font for a health club release in California for each state specific activity service. Is that in the document that you'll share some of that there or is there a good resource?

Tony Ellrod:
I'm not sure if it is there. There might be citation to applicable law, but if you Google, I'm pretty sure if you were to Google California Health Club law, well here, I'll try it right now. Give me one moment.

Brandon Lake:
I mean, I don't know, perhaps some of the answer to this. There's probably so many nuances to every state and all of that. I think part of this answer is probably if you do want to make sure that you have a rock solid release and waiver that you spend maybe a few hundred dollars to have an attorney take one hour with that and give it a good review and make sure that it's not in doing anything contrary to what you'd need in that state.

Tony Ellrod:
If you Google California health club laws, the second thing that comes up is California code civil code 1812.85, which is one of the numerous code sections that applies to health club contracts. If you were to click into there and just go into those sections, you could get a list and there's probably 15 different code sections that apply and they apply to everything from what has to be in the contract, what kind of steroid warnings you have to post. It's the use of AEDs. There's all kinds of laws that go into the operation of health clubs and dance studios happen to be in that particular one. But I mean, hopefully if you're in a business, you've searched your state laws to make sure you're complying with whatever regulations may regulate your business because oftentimes, there's bonding requirements and there's all kinds of... I mean, that's the least exciting part of my job often is looking to make sure that my clients are complying with whatever laws they need to comply with [inaudible 01:10:26].

Brandon Lake:
Okay. Well, thank you. This next one's from Madeline. She says, I don't know if we'll have time for this given that we're over time a bit, so probably direct this to your email here afterwards. But would you be willing to briefly review the waiver we currently use and let us know if there are any changes needed? That's probably a bit more of a process than we have time for here, I would guess, although that would be a good secondary webinar. Maybe review some of these things live and point out some things. Perhaps we could plan that Madeline and do that for everyone's benefit at some point in the future.

Tony Ellrod:
And a lot of releases that I see are good enough for certain purposes and a lot of them I might be able to spot something that's just, you need to change this, but a lot of them are good enough generally speaking. But a lot of things, so for example, and the releases that I typically prepare, I will often include a release of use of likeness. So for example, if they'll be a provision in there that says, if you agree that if we have photo, video or audio tape of you on the premises that we can use that for marketing purposes and you waive any right to compensation for that or any right of privacy or any right of publicity, you might have something in there that says by using our facility, you are agreeing to allow us to send you prerecorded text-

Tony Ellrod:
Agreeing to allow us to send you prerecorded text messages and calls to your cell phone for the telephone Consumer Protection Act. It depends on what you're after. A lot of very simple releases would be effective to prevent somebody from suing you for slip and fall, but if you're going to spend the time and maybe money to put together a release, put together the best that you can.

Brandon Lake:
Okay. We've got a handful more questions. I know we're over time here a little bit, but I want to get some answers out to these people. If people are willing to stick around a little bit, we're happy to answer these. And there are some really good ones on here. One is, as a travel consultant, so more like a travel agent I'm guessing here, I book air tours, cruises, resorts, excursion, et cetera. If a client should be injured or suffer in another way while traveling, am I at fault for selling the travel itinerary?

Tony Ellrod:
I know that there is a California case that's directly on point for this. I can't remember what it says. But typically you're only liable for your negligence. So if from a travel agent perspective, I could say if you book somebody on some booze cruise in Mexico and they get injured because that booze cruise is negligently run, you're not liable, the booze cruise is, unless you knew or had reason to know that it was dangerous. So I could see potential exposure only in a situation where you were negligent in presenting this potential activity to your client.

If they're on a Delta flight and Delta flight goes down, you have no responsibility for that. If you book them into a hotel and it's a reputable hotel and something happens, you have no responsibility for that. If, however, you book them in a hotel and you know that there's been 20 murders in the last six months at that hotel, and it's in a shitty part of town, maybe. It's hard to say. But the way to look at it is that unless you're acting as an agent, if you're actually an employee of an airline or something, unless you're acting as an agent for whoever you're booking, then you're only going to be liable for your negligence.

Brandon Lake:
Okay. I'm going to start hitting these by upvotes here. I think we covered this, Teresa, but I'm going to read it. It says, checking the box doesn't cover more than the person booking. This is a travel-related company. How do we handle that for multiple people on a single booking? And I think we did discuss the potential issue with: Here's my policy in the midst of a booking, you're booking for six people, whoever was booking the customer checked the box on behalf of everyone. And if that's the end of the process, then I think there is a potential problem there. My spouse hasn't seen it. I haven't signed on behalf of my kids and so forth.

And at least for WaiverSign, and this is true in a couple of cases, you can get that release to all of the participants after they book by simply sending it in the confirmation and letting them know that all participants will need to sign this before participation. Or you could actually use the full integration with Resmark that would actually require that each one of those is signed. So when you look at your final manifest, you can see signed check marks next to every single person that's about to depart on a specific departure.

Tony Ellrod:
And this is all a question of degrees as well. So the best thing would that be to have every individual sign. If that's not realistic for whatever reason, then you would want to make it as strong as you could. So for example, the signature line for whoever is signing, I would say, signing individually and on behalf of all the individuals listed above as their agent and you agree to give each of those individuals a copy of this agreement or something like that. Now again, it's better to have them sign, but if it's unrealistic or impossible than do the best you can. And that is, "Hey, you're telling us that you're acting as their agent, and you're going agree to give them a copy of the agreement." And you might even say, "And then you'll defend and indemnify us for any claim that this agreement doesn't apply." There are different levels that you can go with that. And it's a question of how cumbersome and intimidating you want it to be versus realistic exposure and all that stuff, why you want to go with that.

Brandon Lake:
Okay. If we do not have a physical signature line in our online liability waiver system, does a phrase like clicking yes indicate your acceptance of this release of liability for the purpose of this event, suffice as a signature. I think you talked about this a little bit as well, and some states having that actual signature even if it's generated.

Tony Ellrod:
The acceptance or the agreement is done at the act clicking, but certain agreements need to be signed. Certain agreements, the way that the laws that regulate them have references to signatures and signature lines and things like that. What generates when you click that yes or I agree is not necessarily relevant. It's nice. I like the way WaiverSign does it, where it looks like a little cursive signature. I like that. But if you were to have that same space generated with a virtual signature or signature here or anything saying that this is a signature line and that when they click this button, this area was populated with whatever language there is, that's sufficient. But again, that's sort of a aesthetic thing. I like seeing the signature. Or some I've seen people that will do a printed version of the name with the backlashes on either end, I've seen that as well.

Brandon Lake:
Okay. Here's a good one. If we're a Florida business conducting an activity in California and our customer is from New York. Which state's release law applies?

Tony Ellrod:
It would likely be the state, and this is a very complex question, in choice of law, which there are multiple day seminars on this alone, but typically it would be the place where the contract was entered into. If the individual is in New York when they go online and sign up for your service, that would likely be the law that would apply, unless there's something in the agreement. And by the way, you can put a choice of law and a venue provision in the agreement that will say the parties agree that the law of California will apply to this agreement.

You can also put venue where they say, and if it's litigated you agree to personal jurisdiction in California. But typically it would be the place where the contract is entered into. That can be an argument. They could say, "Well wait a minute, our servers are here in Florida, so really the contract was entered into in Florida." I'd have to really look at that and from a choice of law perspective. And not a choice of law perspective, but from three, because it would be, "Well, what does Florida say about that? And what does New York say about that? And what does California say about that?"

There also are certain things that each state has such an interest in that they will not allow the laws of other states to apply. So for example, if you're a Florida company and you're employing people in California, you better rest assured that you're going to have to comply with California employment laws, regardless of whether their checks are coming from Florida and the company's based in Florida, that kind of thing. So that's a very complex question, but the nutshell, usually it would be the state where the contract's entered into the best practice would be to include a choice of law provision in the agreement they're signing.

Brandon Lake:
Seems like that would avoid a lot of confusion. I'll run through these last questions quickly. The question from Ross. If your website has terms and conditions on it, how does a liability interact with that? And maybe to add to that, is the terms and conditions sometimes sufficient or do you need an additional liability waiver?

Tony Ellrod:
Right. I think you absolutely need an additional liability waiver. You want to have an acknowledgement of an agreement to those terms more than just, "I agree with all the terms and conditions on the website." That is a very quickly developing area, and it's untested. So if I say, "By clicking this box, you agree to all of the terms and conditions, including the release of liability that's contained on our website at this link," and there's a link to your website, will that bar a claim? Unclear. If they have to click that link and access your website, a little better. If they have to click that link, and then they go to the website and they have to click three things to get back, even better. So it's going to be a question of whether or not this person, if they could see the terms, that's okay, not great. If they have to see the terms better. If they have to acknowledge seeing them even better.

So it's the same thing. We've all seen those click-throughs where sometimes they say, "Here is our terms and conditions, click I agree." And you can click, I agree. Sometimes they say they won't let you click I agree until you scroll through all those terms and conditions. That's a little stronger. Is the first one not enforceable? It's unclear. But again, want to do everything that you can. There's no problem referencing terms and conditions on a website, but the more agreement that you can get for those terms, the better.

Brandon Lake:
Okay, here's a good question. This is someone who uses WaiverSign. They're concerned about the length of the waiver. Should I be concerned if the language takes up several pages? And in pages for if you're on an iPad or something looking at it, meaning you need to scroll down to read the language before you get to the signature area. Should I be concerned about that? Maybe there's a long line of people. How do you balance that?

Tony Ellrod:
Having done this for a long time, it was always an issue with my clients when you had pages and pages. We'd end up with a five-page agreement, a page and a half of which was a release. These days, in the electronic age, it's much less of a burden, because you're not looking at a big, thick document. You're just reading on a screen. I don't think that you need to be concerned that your release is too long, unless you think it's going to impact your business. And I've had a lot of my clients say, "Hey, this release is too intimidating. It's too long. It's too oppressive." And my response is, "Look, I sign these things all the time. If I want to go rock climbing or I'm doing a karate class or whatever." We all throughout life are signing these things all the time.

I'm an attorney. I typically don't read them, because I know. I also know what's going to be enforced and not, but typically I can't engage in this activity unless I agree to this anyway. It would be a tough argument to make that, "Hey, this release was just so long that I shouldn't be bound by it. It was too long to read." I don't see that being a viable argument. If you think that people aren't use your services, because it's going to impact your business, then trim down. We used to try and trim them down for the written contracts. I don't find that as important with my clients these days, now that everything's electronic. So I guess a shorter answer would be, I wouldn't be concerned at the length of the agreement unless it's impacting your business in some other fashion.

Brandon Lake:
Okay. I'll try to just take five more minutes on this. We've still got probably more questions than we can get to, but let's go through these quickly as we can, Tony. Juliana says she has an electronic waiver that she requires to be signed prior to each monthly event for all minor and adult skateboarding clinic participants. So this is something where, by her next piece of this, I'm thinking they do these every month. So I've signed up for one. I've signed my waiver. Do I need to come back and sign it again each time I participate every month? Or could I sign once and cover a certain period of time by signing one release?

Tony Ellrod:
You can have them sign one that will cover every activity, ad infinitum into the future. There's no reason. And again, even if you are going to have them sign a release every month, there's still no reason not to have that release cover everything. So if they miss a month and they get hurt, then they can't say, "Oh, I didn't sign one for this month." No, every one that you signed said forever for every activity. So there's no reason not to, and typically you can bind them to an agreement. And it's quite common, because every time you go to do this activity, you don't want to have to spend five minutes signing up and registering and signing your releases. It's just burdensome. So it's not a bad thing to almost have a membership or whatever, a signature on file or whatever, and you've got a release for somebody, and you don't make them go through that process again.

Brandon Lake:
Sure. And using a digital solution obviously makes that a lot easier. You don't have to go through the file cabinet and go find this. You can simply look up the name when they come in and go, "Oh, you signed." The other thing that WaiverSign does that I think can be helpful with this, because perhaps you do an annual audit. If you're doing things, you meet with an attorney once a year, have them audit. Because state law has changed; different things happen. There may be some language you need to take out, insert, whatever it might be. So a lot of our clients will put in an expiration date. So this waiver is good for a year or something like that. Knowing that around every year I might refresh my language, in which case I want it to expire. I want you to sign the latest version of the document. So you could do something like that as well.

Tony Ellrod:
I'm not sure I would recommend an expiration date. You may want to say that you certainly best practice to go through that process and to revisit it annually and that kind of thing. I would recommend that you don't put in an expiration date, simply because there's not a reason to. You can always have multiple releases, but there's no reason to extinguish the first one when you get the second one, because you might forget to get the second one or you might lose the second one. You're better off just having 40 releases, all of which will bar this claim.

Brandon Lake:
By expiration, meaning not that the release is invalid, just that you want them to sign a fresh one after so much time.

Tony Ellrod:
Yes, absolutely.

Brandon Lake:
That's what I mean by expiration. It doesn't really void the previous contract, it simply just says, "It's time for John Doe to sign again."

Tony Ellrod:
What you could, really, it would be smart to do is to say that you understand that we may require you to sign another release in the future. And that requiring that will not have any impact on the application of this agreement. That would probably be the best [inaudible 01:27:50].

Brandon Lake:
Smart to include that. Okay. This is Andrew. Similar question to Teresa. I have birthday parties come in where one parent has four to 12 kids with them that aren't theirs. How do you cover this situation?

Tony Ellrod:
It has to be a parent or guardian. I address this issue frequently, or not infrequently I guess would be better. A random adult cannot sign a binding release on behalf of a minor, at least in California. And I also run into it, not only in this circumstance, but even we send this release home with this minor and they come back with a signature. How do we know that it was actually the parent or guardian that signed it? In fact, I had one client that had a guest policy where a minor could come in as long as they're accompanied by a parent or guardian, but unless you're carding everybody at the front desk, you don't know for sure whether it's a parent or guardian. And if you got a minor 12 years old, they probably don't have any identification anyway.

But you can only do what you can do. And again, this is why online releases are so crucial and helpful, because if you got a situation where someone is bringing 10 kids to a facility for a party, and there's only going to be one adult, they can go online and have each parent sign on behalf of their child. They don't have to come into the facility. They don't have to do anything but spend a minute or two online to sign the necessary documents for that child. And then you go to the facility and it's all there. You just check the kids' names and you look up, "Okay, we got that release. We got all these releases." You'll have a tough situation when the one kid doesn't have a release, but you've got to do the best that you can.

Brandon Lake:
Right. Well, and like you said, that is one reason why I think having online agreements like WaiverSign, where you can pass that link. The birthday party was confirmed. Somebody paid for it a while back. That confirmation email can say, "All parents will need to sign this on behalf of their children. Please share this link with all the parents in advance." And then when they show up and they haven't, likely that person who drove them there, they're not unattended. There's some adult with them. They probably know and have in their own phone the cell phone numbers of all of those parents and could quickly text the link for signing that document to them. And in a matter of minutes they've collected 12 signed waivers from the parents.

Tony Ellrod:
What you would also want to do, again, just belt and suspenders, would be to the agreement with the parent that's setting up the activity would also say, "And you agree to defend and indemnify us in the event that any child present at our facility has not had a waiver provided to us signed by parent or guardian," or something like that. Again, the indemnity is only worth the money behind it, but it's better than nothing.

Brandon Lake:

Tony Ellrod:
And that would also give you some protection in the event that this kid isn't really this kid. This is some other kid, and the parent didn't actually sing or something like that.

Brandon Lake:
Okay. Well we've got a handful more, Tony, but I'm going to have to call it good here. We're going to actually take whatever questions were asked and maybe weren't answered, we'll pass those along and try to get them answered. If they were more applicable on the WaiverSign side, we can do that. If they were applicable to Tony, I want to put up his contact information here again. You can certainly reach out by phone, email, send questions that way. If you have a question specifically about WaiverSign or digital waiver solutions, you can get onto WaiverSign website and do that.

If you want to see how it works, you can simply scan this QR code. If you're looking at the screen here, that will take you directly to our signup form. Or simply go to WaiverSign dot com or google WaiverSign there, and you'll get to our website. There are a lot of resources there. We are certainly not a legal service, whereas Tony functions that way. So if you have legal questions, direct them to him or to an attorney. But anything that you're looking for around the software and how digital waivers works, you can absolutely find on our website. And you can even go there and sign a sample waiver if you want to just see how that looks and feels.

Tony Ellrod:
And email is probably best way to contact me, just because I can look at that at 10 o'clock at night or wherever I find myself.

Brandon Lake:
Absolutely. And let me, I'll just put that up one more time. So if you have more questions, need additional help, absolutely reach out to Tony directly or to WaiverSign. But we appreciate everyone joining us today. I think this has been very helpful. Everybody was super engaged with a lot of really great questions. Love to see that. I love to see everybody improving their waivers, protecting themselves and their businesses. I think it's something that's very easy to do. Like Tony said, when you're not in trouble, sometimes you don't want to think about it. But it's part of managing risk and really protecting our ourselves and our businesses into the future.

So hopefully you can take some of what we've learned today, put it into practice, reach out to Tony if you need help or to another attorney. And WaiverSign is there to absolutely help you on the online side of things. If you'd like to look to us to help with any of your, not only waivers, but also other agreements. If you have membership agreements, anything that someone needs to sign that is the same every time. WaiverSign works really well for that. So Tony, thank you so much for your time today. It's been very helpful. We look forward to having you back again sometime in the future.

Tony Ellrod:
Sounds great. Thanks so much everyone. Have a great day.


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