How a Properly Worded Waiver & the Right Insurance Can Protect Your Business


Featuring Attorney Max Goodman & Insurance Expert Sean England

Waivers and liability insurance work together to keep you and your assets protected. A properly worded waiver is one of the very few ways to quickly dismiss a lawsuit against your business. However, if the waiver does not contain warnings of risks specific to your business (as well as a few other key provisions), it is the same as having no waiver at all. Using a neighboring business’s waiver or one you found online is a recipe for a court deeming your waiver ineffective and allowing an avoidable lawsuit to proceed against you. We will discuss what a waiver really is, how they work, and the key components of an effective waiver.

While waivers help to determine levels of liability, it’s important that your insurance and waiver align so your insurance responds as you’d expect and your financial obligations are covered. When waivers and insurance programs don’t align, you could be subjecting yourself to costly legal fees and court judgments. We’ll cover how the insurance you purchase shields your balance sheet and how to determine appropriate coverage and limits.

During this webinar, you’ll learn:

  • What is a waiver and why should I care about it?
  • Why are waivers not drafted specifically for my business likely worthless?
  • How do I (affordably) get a waiver that works?
  • How do I determine if my insurance program is right for me?
  • What are key questions I should ask my insurance agent?

Our presenters

Max Goodman Large

Max Goodman

Max is a Partner at the law firm, SmithAmundsen, LLC headquartered in Chicago, Illinois. He is the Chair of SmithAmundsen’s Fitness & Wellness Services Group and a member of SmithAmundsen’s Commercial Litigation and Hospitality Practice Groups. For the Fitness & Wellness Services Group, Max represents businesses in the health, wellness, and fitness industries where he partners with business owners to deliver informed advice and counsel concerning business and legal needs.

Sean England

Sean England

Sean is a Risk Management specialist in Moreton & Company’s Salt Lake City office. In this role, he is responsible for coordinating the delivery of all Moreton & Company resources to his clients, supervising the client team, developing marketplace strategies, and crafting solutions for unusual business and insurance risks. Sean has been with Moreton & Company since 2015. Sean draws on his experience as a small business owner to help others understand and apply the complexities of various insurance programs.


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.

Planet Fitness
Hoop Heaven
Tofino Bike Company
Montana Nights
Canadas Wonderland
Westin Exterior

It's so simple to use

"WaiverSign has helped our check-in process, lightened my workload, and provided an easier format for our guests and for us. We love being able to associate guests to an event name and easily look up guests."

- Westin Hotels & Resorts

Watch Replay

Watch the Replay

Protect your business with a properly worded waiver

Brandon Lake:
Well, welcome to today's webinar, everyone. We're going to be talking about how a properly worded waiver and the right insurance can protect your business. I'm Brandon Lake, CEO of WaiverSign. I have with me today Max Goodman and Sean England. Super excited to have these guys with us today.

Max is a partner at the law firm, Smith Amundsen. He's the chair of their fitness and wellness services group. He's a member of their commercial litigation and hospitality practice groups. I'm excited to have Max with us today because he actually deals directly with defending companies who find themselves in a situation where they're being sued. So he has an intimate knowledge and experience with a lot of these things that we're going to be talking about today. In that role, he leans heavily on properly worded waivers to dismiss those lawsuits, and knows what the consequences are when they're not properly worded. So we'll hear about some of that today.

Sean is a Risk Management Specialist at Moreton & Company. For those who don't know, Moreton has been around since 1910 and it's one of the largest insurance brokers in the West. But they still maintain this wonderful spirit of being a local neighborhood agency. Sean actually helped us with our own insurance policies for our outdoor recreation businesses. So we've known and trusted him for quite some time now.

We have a lot of excitement over this topic today, and we have companies joining us across several industries from Alaska to the Netherlands, all the way down to New Zealand. And we put this webinar together because, honestly, we are very concerned about what we're seeing in the thousands of waivers that get submitted to our WaiverSign team when new accounts are created. We've seen waivers that have been copied from a template or even another business. We've even seen waivers that literally have the name of another business in them. And for such a small investment in getting a properly worded waiver specifically for your business, you could potentially avoid a major lawsuit, tens of thousands of dollars in legal costs, and possibly the loss of your reputation.

So the other piece we worry about is whether or not our clients have the proper insurance in place to protect them when things go wrong. There is such an important correlation between the waiver and the insurance policy that I think a lot of people miss. So, Sean's going to help us walk through that today, as well. WaiverSign is simply a platform to collect and store signed documents. So just to clarify, we don't offer legal services or insurance services, so we're happy to have these guest speakers with us today, Max and Sean. They're going to educate us as to what we need to be looking at, what questions we should be asking, what resources are available.

Now, before we jump into this, if you have any questions along the way, you can go down into the chat or questions down in the lower right-hand side of your screen. You should see that there. Absolutely ask questions along the way. We're going to take some time to answer those questions live at the end of the webinar. So stick around so you can hear everyone's questions being answered. I'm sure there will be some really great questions based on how many people we have with us today and what we're covering. So I'm going to first turn things over to Max to get us started into our discussion about waivers. Max, welcome.

Max Goodman:
Thank you Brandon, and thank you everybody for joining us today. So as Brandon mentioned, I'm here to talk about liability waivers. And a little bit about my background first. I am a litigator in Chicago. I'm with the firm Smith Amundsen. And when I say that I'm a litigator, what that means is I'm one of the lawyers who's actually going to court every day. I was in court this morning. And when it comes to it, I actually am the one who tries cases in front of juries. So more similar to the lawyers that you see on TV, that's really what I do. So trying to be persuasive and to make the very complex issues incredibly simple. That's the secret to being an attorney.

So, to liability waivers. I think that every business owner at some point really worries at some point about being sued, about lawsuits generally. And this is really where waivers come in. So waivers, when they're properly worded, can result in those lawsuits, in certain types of lawsuits, actually being instantly thrown out. And what that means is that the court will actually dismiss the cases at the onset, usually just because there is a waiver and because the waiver specifically covers exactly what happened to that individual.

So here we're going to talk about how waivers really work. And big picture for a second. You care about how waivers work because waivers are at their base agreements not to sue your business. Okay? So more specifically, a waiver is an agreement with customers where, in exchange for allowing them to participate in a particular activity, and telling them the risks about that activity, that's the key part, they agree not to sue you for negligence. They can sue you for other things. They can't sue you for negligence. The reason why you care about that, negligence by far and away is the most common type of lawsuit that's brought against a business where somebody's injured.

So if I'm drafting a waiver, for example, for a whitewater rafting company, something like that, I would include a warning that's unique to that business. So there's a risk of drowning. There's a risk of a participant falling in the water or being lost, or a person should be able to swim. And they should know that going into it, that there isn't going to be somebody necessarily always there to jump in and save them. They have to have some ability to swim in order to participate. And by participating, they're acknowledging that they have that base knowledge, the key there being ... And you might say, "Okay, well I don't operate a whitewater rafting company. How is this unique to me?" The key is that the risks have to be unique to your business and they have to be reiterated in the waiver. So that's why the waiver must be specific to the services that your business actually offers.

And now let's talk about how waivers work. And, Brandon, can you go to the next slide? There you go. Thank you. Okay, so let's say a person signs a waiver. That person is injured using the services that your business offers, and they sue you saying that it was negligence that caused the injury. What specifically are they going to allege there? They might say negligent supervision. You were supposed to watch out for me and you didn't, you were supposed to provide security and you didn't provide sufficient security to keep me safe, or that the equipment that you provided was faulty in some way and that you're negligent. They then sue you. How actually does a waiver operate in a lawsuit? Because I feel like for a lot of business owners, a lawsuit is just like a black box that they don't want to think about, and so they avoid learning about it. But let me just kind of shed some light on there for you.

So what would happen would be the individual would hire an attorney, the individual who was injured. They hire an attorney, they file a complaint against your business, and maybe you personally, as well. Depends. Then what would happen is, I would file that waiver on behalf of you. And I would argue that the injured person, they specifically agreed in writing, actually, they agreed not to sue you for exactly what they're trying to sue you for here. And so by suing, they are breaking their contract, in essence, that they made with you. And because of that, the judge should throw out the case.

And if all of those facts line up, the person signed the waiver, the waiver is properly worded, the waiver applies to what exactly happened, and you're sued for negligence, if those line up, which they almost always do, then the court will actually dismiss the case and they will say, "I'm sorry, sir, madame, you unfortunately cannot bring your claim against this business. Even if you didn't read the waiver, that doesn't matter. It is not a defense. We don't even have to go into it because it legally does not matter." So lawsuits can cost 50 to a hundred thousand dollars through trial. And this is why we call waivers get out of lawsuit free cards. And I actually had to catch myself there. I actually almost said waivers are get out of jail free cards. Waivers are very good. They are not that good, unfortunately. Brandon, can we actually go to the next slide?

So now, we'll talk about a real case where a waiver actually worked in trial because people always say, "Okay, Max, you talk about how waivers are supposed to work, but that's in the abstract. How does this work in the real world?" So this is a case where it's about autocross racing. We're not talking about Formula One here. We're talking about basically the minor leagues of race car driving, let's say. And in order to race in this race, you actually had to work the track for a little bit, too. So we're talking about really, really the minor leagues here. But that's going on, the background in this case.

And the individual who wants to race the racer, he signs the waiver that the race car track has. And the race car track, cutting to the chase, it's a perfect waiver. And the waiver specifically encompasses everything that racer's going to do that day. So what the racer's going to do is, of course, going to participate in his race where he's actually in the car. He's actually also going to ... But he is also going to work the track, as I mentioned. And so when he works the track, he's out on the side. I think he's being a corner captain, something like that. And what happens is, there's a car collision and a piece of the car flies off and it hits him while he's not a racer.

The key issue in this case was, does the specific waiver, does the waiver apply to this case to have the lawsuit thrown out, yes or no? Now, the person who was injured, they argued it shouldn't apply because he wasn't racing. He didn't read the waiver. He thought it only applied to the race car driving, not what he was working as a corner captain. The judge took one look at it, he took one look at the waiver, and the judge ruled in that case that it applies to the race and to the working on the track. And so in that case, the judge immediately threw out the case against the race car track. In that case, the business won. That's the important takeaway here.

Now, same exact facts. Pretend that the race car track, the racetrack, pretend that they had instead got a waiver that they got online, or they know another race car track and they used that waiver. Maybe that waiver would only cover the race car driving. It wouldn't actually cover when he was working on the track, and wouldn't actually have applied to this suit, and it wouldn't have gotten the case thrown out. That is why the lesson here is you need a waiver that applies to your unique business.

Now the key thing is also to not use a general waiver. Perfect. And this is an example with waiver language that the waiver here, it sounds perfect, and so I repeated it here. That's in the slide. It sounds great, but I'll tell you why it doesn't work. So this is an example of a general waiver, and this was done by a large company, YMCA, who probably had an attorney prepare this. And it sounds like it's all encompassing. Basically, what it says there, and you can read it for yourself, but it says basically that it applies to any injury, it says stemming from basically any activity at the YMCA, period. It applies to everything, right? So there's no way that somebody could be injured on this premises and it wouldn't apply to make that business safe. And that's wrong. And the judge really took the business to account to really explain why this waiver was no good.

And in that case, they explained ... So actually, what had happened there was a woman was working out in one of those ... I think she was doing a lat pull down machine, and they have that weight tower, and she got her hand caught in the weights where you take the pin out and you change the weights. And so it was a crushing injury, a pretty rough injury. And basically, the judge said that this type of a general waiver, she had no warning that she could possibly be injured from faulty equipment. And you would say, well, there's common sense. There's common sense that would say that. Not here. We're talking about instances where courts are able to throw out a lawsuit where somebody was injured.

The waiver needs to line up perfectly. And here, the person got absolutely no warning about this or really any other specific risks that she would face when she walked into that gym. So, general waivers are absolutely worthless. It's as if you have no waiver at all. And that's really the takeaway here. And the takeaway, the overview of where waivers work and where they don't work, the overview for that is waivers, they really must list the particular risks and the dangers that are unique to your business. It's called the range of dangers.

The other thing that I wanted to mention here real quick was particular waivers for your business. They would have what's called a venue provision. It's also called a forum selection clause. And that's a little two line clause in the contract, but it's absolutely critical. And what that has in there is it says in the event that you're sued, whether or not the lawsuit has merit or not, you can only be sued in your city and state, your home court. And since it's your agreement, you get to dictate where that is. It's absolutely critical that it's in there.

And if you pull a waiver from online, it's not going to have that venue clause in there, right? Or worse, you borrow it from another business, it might place it in Hawaii, or New York, or some state where you definitely don't want to get sued, so that's far away from your business. You want something that's in your backyard where, if need be, you can hire an attorney to show up on your behalf, and with laws that are in keeping with your city and state, with a jury of your peers. So that's absolutely critical, and another reason why really it has to be a waiver that's unique to your business.

But really, now let's talk about what's really going on here. So what we have happening here is, because you might be wondering why are the judges forcing everybody to hop through all of these hoops? What's going on here? Why are they making this so difficult, where basically only big businesses, or businesses who have attorneys who've thought this through, can use waivers to have lawsuits thrown out? What's going on is judges don't want to enforce these. So judges don't want to let you off the hook just because you have a good waiver. And let me give you an example of my personal experience with waivers to really come drive home this point.

So this is a case that actually got me interested in waivers, and it was my first time trying to use a waiver to have a case actually thrown out in court. So I'll give you a little bit of background here first. Every year, a little bit before Christmas, there is a famous bar crawl in New York called Santa Con. And some of you may be familiar with this, and some of you may have versions of this in your cities because it's so popular that many other cities have copied this. And what it is, it's very popular with recent college grads, people in their twenties. And what it is, is everybody dresses up like Santa Claus and they go on a bar crawl, and it's tens of thousands of people. It's a wild time, it's a lot of fun. It's kind of a mess for all of the neighbors, but it's a great time for the participants.

Chicago has a version of it where instead of people dressing up like Santa Claus, they wear ugly Christmas sweaters and they go to the 12 bars of Christmas. I have no idea how it got started. There's a company that puts this event on. Anyway, I represented one of the bars of the 12. And so, a different bar each year in this bar crawl in Chicago is chosen as the final bar. So you go to the other 11, and then you stop off at a particular bar. And it actually matters which bar is chosen as the last bar because it's the most lucrative. You make the most money.

While people are going from bar to bar, they may have a drink, they may not. But they're making their way on the path, checking their boxes as they go. But everybody ends at the final bar for the final ceremony. The event ends at 9:00 PM, and bars are open significantly later than that. So people just end up staying, and drinking, and calling their friends. And so, it's considerable additional business. It's hundreds of thousands of extra dollars. So my client was very happy to learn in a particular year that they were the last bar on the stop.

So we helped to get the particular bar ready for this event. We made sure that they hired extra security, that they developed a particular plan to deal with controlling crowds, things like that. Okay, so we thought we're ready to go, we're ready to do this, ready for ... It's called TBOX in Chicago, the 12 Bars of Christmas. So this event had a waiver, and we read the waiver ahead of time. We had no right to change it. We just made sure that it included our bar, which it did, and we were very happy with it. It was written by a very competent attorney. And the waiver said, like I said before, that the events lasted from 9:00 AM to 9:00 PM, and that's key for later on in the story.

Now, what happened at our bar at 9:30 PM, about 30 minutes after the official event had ended, is in the bathroom, some customer, he hopped out of a stall. We're not sure really what was going on. There was no warning or altercation of any type. He took a beer bottle, cracked it, broke it, and he stabbed another patron in the neck. Fortunately, the patron bled some, but he was okay. Everybody survived and everybody was okay, but it was a significant injury. The person was eventually brought under control. The police were contacted, of course, and then the person was taken to the hospital, and everybody was well taken care of.

But the issue in the case was, was the bar or the event company liable for not providing additional security, negligent security. So they were sued for negligence. We then immediately brought in the waiver, they filed the complaint, and we said, "Your Honor, we have a beautifully worded waiver here, which perfectly encompasses this exact thing possibly happening, a patron attacking another patron, and you claiming that our bar was negligent, that we provided negligent security. Please dismiss this case." And the judge said, "Thank you very much. This was well argued. We like the waiver. The waiver is well written. I'll think about it." Excuse me.

The judge then came back out an hour or two later, and the judge said, "I'm not going to throw out this lawsuit." And we're like, "Why? How could you do this?" And the judge said, "Aha. Had it happened 30 minutes sooner, I would be forced to throw out this lawsuit because of the contract as written. However, here I don't have to because it happened at 9:30 and not at 9:00." So the main takeaway there is waivers only apply if they are near perfect, and they're only perfect if they're drafted specifically for your business.

So let's talk a minute about lawsuit basics, about what we're really talking about here. Excuse me. So, lawsuit basics. What are we avoiding? We're avoiding lawsuits, we're avoiding extra costs to your business, and also exposure. So costs of a lawsuit, legal fees, it's exorbitantly expensive. Legal fees just are. There's no getting around it. No matter what attorney you're using, there are around 50,000 to $100,000 in legal fees through trial. And remember, that's if you win. So win or lose, you still have to pay that, which is horrendous. And it's a terrible cost of doing business.

So anything that we can do to avoid that, anything that I can do for my clients to have them avoid lawsuits, we always do it. So I will persuade, encourage, force, coerce, whatever to get my clients to get a waiver immediately, and make sure everybody is signing it in every instance, and that they're using those waivers correctly. So it doesn't say anything about, of course, if the lawsuit's allowed to progress, then you have a risk of a high damages award, a high settlement, of course, the years of litigation, and the headache. Waivers act to avoid all of this.

So how specifically can you get a waiver? So how to get a waiver is ... I'll talk about the quick takeaways here first, I guess, before we sum this up. So takeaways here. Waivers are essential to businesses that offer services where someone could be hurt. So think touring companies, think gyms, think spas of any type, kayak rental companies, segue tours, anything like that. They're essential because they are your get out of lawsuit free cards. And either the waivers are specifically designed for your business or judges will possibly throw them out. So what that means is the judge will rip up up the waiver and they will allow the lawsuit to proceed all the way to trial, two years of litigation, and then you have to face a jury, depositions, affidavits interruptions to your business, and then eventually a verdict, which is rough. And it's definitely a lot.

So as far as expenses go, because it's the first question, and maybe I should have actually put that as the first slide and started with this because everybody's waiting the entire time to see how much this costs, waivers are $550. That's what my firm charges. Other lawyers charge different amounts. It's really about an hour and a half of attorney time, and it's just very inexpensive for the service that it provides. The process of calling an attorney, it's very easy. All we do is we learn about your business on a quick phone call, and then we draft the waiver. So with that, I'll turn things over to Sean England to speak a little bit about everything you need to know about insurance. And thanks a lot for staying with us.

Brandon Lake:
And I'm just going to jump in here for one second here. We do have a lot of great questions coming through on everything that Max has presented. So thank you, Max. Some wonderful stuff here, some very specific questions. We are going to get to those here. I'm going to let Sean proceed through his insurance piece. A couple of these questions might actually be answered by what he's talking about. And when we wrap all of that up, I'll give a quick overview of WaiverSign, and then we're going to jump into all of these great questions. So we'll have a really good discussion with you. Thank you, Max. All right, Sean, let's jump into insurance and waivers. How do they fit together?

Sean England:
Perfect. Thanks, Brandon. Thanks, Max. With insurance ... Well, I guess Max did a very good job covering the importance of waivers. We want to dismiss any financial obligation that's getting put onto the company as possible, onto your own companies. But if the waiver doesn't work, then what? In the circumstance of the bar, then what?

... doesn't work then what? In the circumstance of the bar, then what? Obviously a really unfortunate circumstance, but they do happen and I'll give some examples later on about situations that I've been involved in, claims that I've been involved in where the waivers have worked. They've worked little bit, they haven't worked at all, and then how insurance fits with that. To maybe take a half step back from insurance before jumping into it, I wanted to discuss these four things right here, which are the four of the main pillars of risk management, the different strategies that can be involved, and that I feel and recommend that you should take serious time to consider and really evaluate each of these when it comes to determining your risk management program in a whole. So the first one is acceptance. When you go into business, and whatever industry you're in or that you're thinking about venturing into, there's going to be some aspect of accepting risk, and you may accept it because you have to. It's just the nature of the business and there's a waiver that just isn't possible to fully encompass everything.

You may accept it because you've really analyzed all the different aspects and the variabilities and said, "There's some of these exposures, some of these instances that could happen, but they're really low, and I really don't want to pay for a contract or pay for an insurance policy, and so I'm just going to accept and I'm going to self ensure, and I'm going to recognize that this is just a risk that I'm taking on as a business owner." The second one is reduction or mitigation, and as you've evaluated what those risks are, what can you implement to avoid those claims happening, to avoid those accidents? Is it better safety gear? Is it better lighting? Is it replacing equipment on a more regular basis? What can you do to reduce or to mitigate the likelihood of an accident or an incident happening?

The third one is avoidance. Sometimes you just can't avoid it and sometimes you may just have to say, "Look, I've evaluated the risks. I've looked at my industry, I've looked at claim scenarios, and you know what? This area that we were going to venture into is just too risky. We're going to completely avoid it altogether and no longer pursue that aspect of our business." Maybe you're a rafting company and you're involved with the outdoors and the expeditions, and you have clients asking, customers asking, "Well, what else do you do? I want to do a canyoneering tour? I want to go skydiving out." And they start to give you ideas of, "Potentially, maybe I want to expand my business into these areas." Well, it's very good to go through this sort of a risk management process and figure out, "Do I really want to go there or should I avoid those risks altogether?" And how does that fit within your business philosophy?

The last one, and this one is actually the most expensive, and that's risk transfer, and that's what you can do through contracts. And that can be contracts like a waiver between you and your customer, or that can be contracts between you and another business partner, another entity that you're doing business with and you're able to transfer the risk over to them. Most of you, if not all, are involved in credit card processing, so you're going to have a contract with a credit card processor that's going to very clearly state out who's responsible for what, who's responsible for your client's personal information, what happens if there's a cybersecurity breach and that gets stolen? Are you as the company that took the risk on or that collected your customer's information, are you on the hook? Or do you have a contract in place with a third party where you've now transferred that risk over to them?

That's also essentially how an insurance policy works as well. You're just signing a contract with the insurance carrier to say, "If I have a claim that falls within the bounds of this contract, great. I transferred it over to you, I've washed my hands and you handle it." And again, that risk transfer is the most expensive way to handle risk, and so if you can implement the acceptance or the reduction it's going to, without avoiding everything because that's impossible obviously, it's much better to do it through acceptance and reduction as opposed to an insurance policy.

Now, getting into what an insurance policy looks like on this next slide, you'll see that what's called a deck page, this graphic on the right. This is probably something that you're familiar with seeing. If you're not, I'm not sure what you're buying because just about every insurance policy has a declarations page like this, more specifically general liability. And the most common question when sitting down with a company and you're giving them an insurance quote, an option is, "Well, how much does it cost?" And so everybody either flips to the back page, to the deck page and they really look for that dollar amount. "Is it less? Is it more? How can I fit this into my budget?" While that's definitely an important question to ask because you do have to budget for your risks, a better question would be, "What am I actually covering? What are the forms?"

And that'll be on the next page that we'll see, "What are the forms that are included in my policy that actually describe what the coverage is?" Because it doesn't matter what the premium is, if the actual coverage isn't there to cover your loss, so just to be clear on some of those definitions, the coverage is what your risk actually is, and the limits are the amount of money allocated to pay for those risks, to pay for those claims. And I like this quote by Warren Buffet. It's something that can be internalized in many different ways, but it is something that you do get what you pay for, and so you really want to analyze and make sure that your insurance policy, your insurance spend, that you are educated and well versed on what that actually is.

So on this next slide, we're going to see the forms page, and this is usually a half dozen or so pages beyond the declarations page. And what this is telling us is what endorsements have broadened coverage and what exclusions have restricted coverage, and some of these are very general. They apply to almost all industries. And then you can have circumstances where underwriters try to slip really sneaky exclusions in that are very applicable to a business, but they're trying to weasel their way out of a potential high-priced claim. And in this circumstance, this is a company that I was introduced to actually last Friday. They manufacture a piece of exercise equipment, and their initial question was about their premium saying that it was a little steep.

They asked if I had markets that would be any cheaper, and through the discussion in learning about his business, the amount of time they've been in business, and then he sends me over his insurance policy or the quote that he was given from his current agent. And I start looking through these forms and this exclusion jumps out at me, and I know it's a little small, so I'll read it, but it says, "Exclusion designated products, all products manufactured, distributed or sold prior to 05/05 of 2021." Now, if you're not familiar with forms and what they actually are and mean, this could be something that you scan right past, you probably skipped the page altogether. It's definitely something that this company hadn't looked at, and I'll speak to some of these other exclusions in just a second.

But as I started to talk to him about his business and saying, "Well, when the products that are on the market, when were they manufactured? When were they sold? Are you able to track all of that?" There's issues with third party logistics systems or companies fulfilling those orders for this company, and this exclusion became much, much higher of a priority than just the price and just the premium because what he realized was he's about to pay for something that greatly limits and restricts his coverage. Now, some of these other exclusions, you look at asbestos and lead contamination, silica, things that don't have any relation to his business, to what he does, and so those exclusions don't bother us. We're actually okay with them because it is restricting coverage in an area that is non-applicable, which is going to help us on the price side because we're helping that underwriter be more comfortable with eliminating these risks from our coverage.

So to this company I said, "Here's some questions that I would ask your current agent because I'm really concerned about this," and so this next page is... Sorry, this is a little bit out of order. So Brandon, please skip two pages forward. We've got this exchange, so again, there's the exclusion up at the top, and I suggested to this business owner, I said, "Just ask this question to them." So the question is, copying and pasting that form, "And then I see that an exclusion for designated products looks like this will exclude everything that we've manufactured thus far as it pertains to all manufactured products prior to 05/05 of 21." And the response from this agent was really interesting, and this is another spot where you need to be careful. The response, and I'm going to jump to that number two, "The endorsement states products manufactured, sold and distributed prior to the policy effective date, not products manufactured, sold or distributed prior to the effective date."

And so the business owner came back to me with this and he said, "Well, here's his response. Does this work?" And I said, "No, it doesn't work because let's go back to what the form actually says," because it does say, "All products manufactured, distributed, or sold prior to 05/05 of 21," and so this other agent has clearly misstated what the coverage looks like in that form. He's saying, it's and distributed, but the form is specifically saying, or distributed. So now this business owner doesn't have a concern, or he definitely still has a concern, but now his top priority isn't so much, "How much is my insurance cost?" It's based upon this coverage form, any product that is now on the market that is prior to May 5th of last year has no insurance coverage, and this is a much bigger issue and concern than, "Can I get anything cheaper than $5,000?"

Because again, this isn't going to pay for anything. So when you're looking at your insurance policies and you're trying to evaluate, "Is this a good deal? Do I have the right coverage?" Looking at your limits and looking at the premium is not the first thing that you should be doing. It's definitely a concern, but we need to make sure that the coverage is there first. Now, Brandon, back one slide. This is a different coverage form. This comes from a company that is engaged in expeditions, taking people out into the wilderness, camping, fishing and doing different things, and you can see the very different exclusions. Some of them applicable and some of them not. There's the handful of tour guide or expedition similar type companies, "You may or may not have volunteers," about a third of the way down there, we have an exclusion, "Any injury to a volunteer is excluded," so if you had volunteers that were part of your staff and this exclusion was in there, you're greatly reducing your coverage.

Similar to abuse and molestation, if that's a concern. Watercraft liability, obviously we had to add that in because it's a big risk that pertained to this company. So the forms page is extremely important and one that shouldn't be overlooked, and if it is confusing, if it is cryptic, start asking the questions. Allow yourself to be educated on it, and if the responses that you're getting back aren't... If you're not satisfied with them, if they feel a little awkward, get a second opinion. It could be me, it could be anybody, another trusted source in your areas, but second opinions are always very important in this one. So now we've covered forms. That's what we want to look at first, and now we need to figure out the limits piece, "Do I actually have enough insurance to cover what my risks are?"

As Max stated in the details about your waiver, specifically stating what your risks are, what are you trying to absolve yourself from? Keep in mind that nobody knows your business better than you, so an insurance agent may say, "I write a lot of rafting companies. I write a lot of tour companies. I have experience in these things." Well, they don't know your business though, and you may have some nuances that they clearly don't understand, and you need to make sure... And those could be good and those could be bad. You may implement some risk mitigation techniques that they have no idea about, which would be very beneficial to the pricing and to the conversations that they're going to have with the underwriter.

An example and this is actually a construction related example, but I think it proves the point. So I'm working with a company here in Salt Lake City and they're engaged in sandblasting and repainting of heavy equipment. And if you're familiar with sandblasting, it usually involves a silica based material, which if we think back to one of those previous forms, silica is excluded from most every insurance form. Well, it wasn't a question of, "Can we get coverage?" We knew that we could get coverage for this company, but the concern and the assumption of the underwriter was, "This is a sandblasting company. The majority of them use a silica based product" and the main concern with that is the overspray that can then be picked up by winds and sent off to third parties and then cause damage that way. By learning and asking the right questions and having this sort of a conversation with the business owner, they come to find out he uses a non silica based product.

It's either copper or nickel based, and just by relaying that to the underwriter and easing his concern of that silica overspray, his general liability premium dropped by 50%. So just understanding a little bit more about a business and helping your agent understand your business a little bit more can have huge financial benefits because that conversation with the underwriter, they can ease some of that tension and make you a more marketable and a more insurable company. You also understand your worst case scenarios better than anybody else, through the conversations maybe your agent is a novice into that industry and they may ask some questions that you're not privy to just because you've been in your industry so long and may not have crossed your mind. The other thing that you should be doing when it evaluates limits is, "What is everybody else in my industry doing? Are they going beyond contractual limits that we're required to carry?" If you're Involved in utilizing public lands, you have federal or state agencies, then you have to comply with their insurance requirements.

"Is that enough? Is it adequate? Or maybe I should purchase more than what they require. What else are people doing in my industry?" And so using benchmarking to figure out and evaluate those limits is really important. It can be really important. And then going back to that first slide, "What do we do? Do we transfer the risk, do we self-insure it? Do we purchase an insurance policy? What is the best risk management strategy for the exposures in which my business has?" And then with those limits, also evaluate your balance sheet because insurance is the only avenue by which your balance sheet is protected from these lawsuits, from these sorts of claims. If you have a strong enough balance sheet that you can self pay for a million dollar claim, great. Sign off, you don't need to listen to me talk anymore, you're probably in a great spot, but most likely you're not. Most likely your balance sheet, you're a small business, you've got yourself, your family, you've got some employees and their families, and a shock loss, a claim of 50,000 could put your business under.

And so keep in mind that insurance is primarily there to protect your balance sheet and allow you to continue to operate when accidents are going to happen and when the claims are going to come through. Next is some questions that I'm typically asked, "Well, what's next? This is all good information. Thank you for educating me a little bit on this. Well, what do I do?" Here's some simple questions that I would take back to your agent, to and inquire to them on some different scenarios. Ask them about forms, ask them for definitions of specific words because they can be very dicey and very tricky. Don't make any assumptions with what something means. Make sure to get a clear definition. Also, inquire to the markets. What markets did they approach? Or is there a specialty market? "Is there a program that is more applicable to my business, that underwriter or that carrier, that group understands this industry better than most, therefore being able to give me more coverage at a better price?" Make sure to ask the question, "Is this the carrier's best and final?"

And that statement, best and final is an important one, and it's one that they're all familiar with. Every underwriter that I've met wants to write business, and they don't go through the process of underwriting just to spit out a number that's not going to be accepted, so make sure that in the conversations around that renewal time, inquire, "Did you have multiple underwriters give you options? Did you then take those options back and say, "I need you to bring your price down a little bit more. Is this their best and final?" And then ask for a list of what that market is or what those markets said and those responses, and then pose the questions to them as well with claim scenarios, "What happens if? What happens if a patron does stab another patron with a broken bottle? How does my insurance policy respond? Help me understand how this kind of claims process is going to play out if the waiver doesn't work. What are those next steps and how does that look?"

And now, some claims scenarios. This indoor gun range is a client of mine and it's a really unique business in that most indoor gun ranges, cinder block buildings, some ballistic partitions, but it's just a cinder block box that has some partitions in it and your shoot-down range, pretty simple. Well, this company wanted to have more of a higher class experience, and so in each of their shooting lanes, they have designated, they call them suites. So doors will completely close you in and you can have your private party there, and I say private party, a couple of people, your group in there separate from everybody else. With these walls that are separating, and we have these ballistic partitions actually two-sided, so we've doubled up on the amount of protection, that's even legally required, and then a very good waiver.

A waiver was written by one attorney, evaluated by another. There's been other claims and circumstances where the waiver has come into play and totally absolved the company of any negligence. A quick one was a gentleman shot himself while he was shooting with his son. He tried to sue the company and pulled out the waiver. The judge saw it and said, "Nope, this is 100% your fault," and case was dismissed. In this circumstance though, a patron that was three suites away stepped behind the ballistic walls, accidentally discharged the firearm. That bullet went through the two other suites and then passed through an elderly lady's left leg, and then was lodged in her right leg. So obviously very traumatic, very intense and nerve wracking situation. Company employees, they're there within just a couple of seconds. They were able to see on the cameras what had happened. They applied tourniquets to both this lady's-

Sean England:
What had happened, they applied tourniquets to this lady's legs, to both of their legs. The ambulance arrives, they take over, she's off to the hospital. It was very clear, very evident that without the quick response of these employees, she would've bled out. She would've died. Of course, she gets an attorney, we're going to have some medical bills, we're going to have a lot of things that we need to work through. And so she gets an attorney to help represent her and we get to the point of standing in front of the judge and we pull out the waiver and he sees the video and we go through the whole scenario. And ultimately what the judge ruled was, yes, it's a very good waiver, but this lady had a soft... The judge could see where this lady had a false assumption of safety with these individual walls completely separating each shooting lane.

Or her claim was that, "I felt that each of these walls, the entire length of the suite would have the same ballistic protection." And so the judge said, "You know what? I can sympathize with that and that makes sense." So we encountered a situation in front of the judge that we never would've thought before because we had double thick ballistic partitions already installed. But he said, "I understand." And the circumstance basically ended that we ended up having to pay $25,000 to this elderly lady. That came back to the insurance policy because that's what it's there for. We transferred the risk to the insurance carrier to say, "If there's an injury to a third party, that is not gross negligence," which this wasn't, insurance stepped in, paid it, "no problem." There's actually no repercussions on their renewal. I know that's a big concern of a lot of people of, "Well, I don't want to submit a claim because then my rates are just going to go up."

If that's the case, there's probably something that's a little awry in your contract, in your relationship with your insurance carrier because they price insurance premium to pay for claims. So keep that in mind that you are already prepaying to make some claims during your policy year.

The other circumstances with the skydiving helmet manufacturer, which you think skydiving, obviously there's an assumption of risk. They have lots of warnings and disclaimers through purchasing the product, very clear what it should be used for, what it shouldn't be used for. And the customer used the helmet at one of the, like an indoor skydiving place and kind of like an iFLY. So they're in this big vertical wind tunnel. The person was experienced, they had been in it before and demonstrated to iFLY that they were competent, capable enough to not have an employee in there with to kind of assist. So that the individuals in there, they're wearing this company's helmet. There was a power surge type incident that caused the fans to fluctuate and the gentleman ended up hitting his head against the wall inside this wind tunnel.

We get to standing, we actually get to court. They're not a client of mine. They get to court and as they're looking through the waivers, the warnings, everything that this company had done to hopefully cover themself, the judge saw that in his insurance policy, he actually specifically excluded product liability coverage and the excuse was, it was too expensive. And the skydiving helmet, which is of course there's an assumption of risk in that sport, but the helmet, it was determined that it didn't provide the adequate coverage as it had clearly stated to protect this gentleman's head. So he gets a concussion because of the impact. He files a claim for a product defect. There's no product liability coverage. The judge sees that this negligence, and he actually said it was gross negligence on the part of the company because they explicitly knew their risks and were not purchasing insurance coverage for it.

Ultimately, he rules in favor of the claimant. The company has zero insurance coverage and they have to go out of business. At the time, this was the second, sorry, the third largest skydiving helmet manufacturer in the world, but they didn't have the balance sheet to self-insure for something like this. Their policy for product liability coverage would've been about $20,000. And that's obviously something that they had to weigh at the time of securing their insurance policy. But we had a lot of waivers, we had a lot of warnings and guidance on the use of this, but the malfunction of the product without the combination of the insurance coverage was the reason for the bankruptcy.

So hopefully that's not too much insurance information. Hopefully it's enough to digest and you can kind of take some of those pieces and relate them to your own industries. If you have questions, give me a call, shoot me an email. I'm more than happy to talk about your situation, your business and give you some insight. Most helpful, if you send me your policy, I can just go through it and become familiar with the forms so that as we have a conversation we can make it more valuable. But other than that, I appreciate everybody, appreciate your time. I know insurance isn't the most exciting topic. I like it, but I know it's not everybody's favorite.

Brandon Lake:
Well, Sean, thank you very much though, I think it's incredibly helpful to understand how insurance fits in with our waivers. Often I think businesses aren't necessarily looking at the waiver language saying, "Okay, what isn't being covered here that I need to be insured for?" And even if some of that language fails in court, now what? And then there's so many other uses of insurance as well. So I've got a ton of questions rolling around in my head. We got a bunch of questions coming in here and we're going to jump to those in just a second. Just want to give, I know we have a lot of our current clients on here. Hopefully this is helpful for you. We have a lot of people that haven't used our product yet. I know there's some questions around that as well. So let me just give a really quick wrap up with what WaiverSign is, why we started, how it works real quick. And then we're going to get into some of these questions.

So when we started WaiverSign several years back, and as I mentioned earlier, we actually, I'm a co-owner of the two different businesses, Western River Expeditions, Moab Adventure Center, both in the tourism industry and we had been collecting paper waivers for decades to the point where we literally had boxes and boxes of these things in a garage that would just stack up and try to organize them and keep in order as well as we could. But so many of them we had to keep for years for minors and all of this and just thought, "Gosh, there's got to be a better way to do this." And so we started looking. We got together with some insurance companies, some attorneys, and we started really digging into some of the issues and challenges we had with paper waivers.

We determined that storage was a big problem, damage by fire or water could happen, legibility was a problem. I always had this fear that we'd get in a lawsuit and I'd go to find one of these things in box number 72 and look for it and find it and think that it's the one I need and that I can't even read the handwriting. That would be a major problem. Collection and timing was a problem a lot like we were collecting, sometimes waivers at the last minute, right before people checked in, they'd already traveled to our destination. There they were. There's a line behind them. They feel rushed. Later they may claim in court as a defense that the business didn't give me enough time to read the waiver. I was coerced into signing. I didn't have another choice as I had already committed so much to go on this [inaudible 00:56:48].

Delivering the waiver in the right language is sometimes a problem for certain people. The participants could claim, "I didn't even understand the waiver. It wasn't in my native language." And then lastly, for us, a big issue was data entry. Companies that had used the waiver like to collect client information and enter it into a system or whatever was really expensive over time. So we determined, let's create a digital process that would solve all of these things. The storage problem would be solved because they're going to be stored online. The legibility problem was solved because people would be keying in their own information. We could actually make sure they filled out certain fields when they're doing it online. We could even validate the format of the information, be it an email or date of birth was accurate and that was way better than paper in that regard.

We could get it to people in advance more easily and they could sign it. They even get a copy of it in their email. So them claiming that they were coerced into signing it last minute, went away. We decided we would develop something that would present the waiver in different languages so people could understand it in their native language. And then the data entry problem was also solved because we would have all of this backed up and stored in secure online databases where we could easily access it. So just a quick synopsis of how the system works.

So if you went out and you took Max's advice, you got a properly worded waiver and you said, "I want to have this thing signed digitally." Well, what does that look like? You'd actually send us your waiver document. Ideally you have the properly worded waiver like we talked about, that's really going to protect your business.

We take it, we create a digital version inside the WaiverSign application. You can always come back to this anytime and edit it. And then we provide a link for your participants to sign that document. You take that link and you can either put it on your website, you can send it in a confirmation email, a text message. You could have signage with a QR code or a kiosk at your location and any of those work to get it to people. Once they click that link or sign the QR code, they're presented with a page like this. So here you'd see your own logo and colors. You can do all kinds of custom branding there, which is great. You'd see any language options you've selected and set up and you'd see whether you've chosen to have this signed by just adults or adults and minors. I know we have a couple of questions coming about that too. So we'll talk about that a little bit.

So I'm going to go ahead and sign for myself here really quickly and I'll just hit "Continue." Again, I enter my information into this. You can choose all the fields you want to collect and you can even have custom fields on this. So I fill all of this out and then click "Next" here. And then it's going to tell me how many documents require my signature. One cool thing in WaiverSign is that you can actually have multiple documents in the same signing link. So if I'm doing my releasing waiver of liability plus a, if I'm in a fitness space or something and I'm doing a membership agreement or a terms and conditions or intake forms or service agreements, whatever it might be, I can have people sign multiple documents. So one after another here to make it really easy. I click "Begin signing."

I'm presented with the document here. I scroll down, I see the information that I've entered and I apply my signature. Now there's probably some questions around this as well, but according to the E-Sign Act of 2000, a valid digital signature can be anything from an I agree checkbox to a typed name and applied signature like we've done here or creating a signature with your finger or a mouse. Max may elaborate on this a little bit more in a minute here, but really we chose kind of what the easiest route is for people which produces the signature and they can apply. So we go ahead and agree and submit. And the cool thing is, the people immediately receive an email with that waiver in it, and this email has a button they can actually click to view their signed PDF. And you'll notice that PDF is now kind of a flattened document, if you will.

It has a document id, you see their name on it. You actually see the exact time that they clicked that button and the IP address of the device that they signed this on. So those can be helpful data from the legal perspective if you ever need to show this document in a lawsuit. At the bottom of the document, we see all the information they provided as well as their applied signature. So lastly, what does it look like from the business' perspective? So the clients have signed it. Now what? If I ever need to access this one day, how do I do that? Well, I can come here and log in with my username and password. I land on the WaiverSign dashboard and I can see how many documents I've signed here and some other fun information. I can even see gender and participant age if I've collected date of birth and gender and so forth.

But I'm going to go over here and click on "Signed Documents." And here I can see, I can look up the specific person by name, phone number, email address, and once I find that document, I can select the record I want to see. I can see this one signed just four hours ago. That's the one I want. I can verify the information. I click to view the document and I'm seeing the same document my client received in their email. I can download this and send it. I can print it, I can do whatever I need to with it at that point. You can see it has all the same information they saw on mine. I can also go back and using this field up here, I can search for someone by name or email or phone number right up here at the top. And I can actually access the history of that particular individual.

I can see all of the different things that they've signed, when they signed them and access them from there as well. So there's a lot of things we hear from our clients with the system. They love the idea of simplifying all their online agreements into a single signing link. They love that. It saves them time and reduces cost. They love that it makes it easy on mobile. So many people are doing this on their mobile device, whether they've scanned a QR code or they've just received an email and we make sure that all of this is very legible. Sometimes you get PDFs that you're viewing on an email, you kind of pinch and zoom to read them and stuff, and we take care of all that. So it looked really good and mobile with us as well. And then certainly makes this check-in process for us.

It's changed everything with our check-in. Now people show up. They're not even worried about waivers because most of them are signed in advance. They can focus on other things while they're there, checking in and enjoying the experience, maybe shopping in our store, different things like that. And then of course we eliminate storage going forward and everything gets more organized. Businesses love that it makes them look more professional with all of the custom branding, just the fact that they're digitizing this, giving it to people in advance, not requiring people to send a scan or a picture of a document, and it just makes it so much easier for everything. One thing that we love is that it gives us a chance to give back. We love saving paper, but we also love the fact that for every business that uses WaiverSign, we actually plant a tree in their name.

So that's kind of fun. We have an alliance with the National Forest Foundation and we've planted thousands of trees. [inaudible 01:04:16] So if it looks like something you'd like to try, you're not already a client, you can scan this QR code on your screen or just simply go to, click on the green "Try it Free" button. And then for those of you who already are clients, I just wanted to mention two additional services that might be helpful to you as we talk about this. WaiverSign actually has a fully integrated booking and registration platform that ties to the waiver process really seamlessly, makes it super easy for your customers. You can check that out at And we have a website design service and a website editor that's like incredibly easy to use and really, really powerful and effective. So let us know if we can be helpful with any of these things. Those of you that are clients and super, super happy to have had all of this information today.

Before we wrap up, I want to take a few minutes for questions. Again, we've had a lot of really good ones come through. If we don't have a chance to get to yours, I'm going to try to choose some of those that are I think are most applicable to the whole audience. We do have the questions logged here. We'll have somebody get back to you on that question. And again, if you'd rather not have us answer a question publicly, you can absolutely reach out to Max or Sean directly. Here's our contact information again on the screen. You can jot that down. We'll send it to you in an email after this as well. We will also send you a recording of this so you can go back through it and pinpoint any sections that were important to you. And if it's a question for WaiverSign, you can submit that on our website or give us a call and we'll make sure you're directed to the right person.

So let's go ahead and jump into our questions. I'm going to take this off the screen here for just a minute. So hopefully everybody's gotten what they need off of this. And we'll go to Max and Sean and get some of these questions answered here.

Hey guys, ready? We've got some good questions here. I am going to start with a couple here that I think... So one of the first questions that came in, Max, there's a bunch of waiver questions here, a couple around insurance as well, Sean, but so one of them is, do waiver protections vary by state?

Max Goodman:
So the answer is yes. Different states treat waivers a little bit differently. What we're describing are kind of best practices for all states. So basically the answer is, no matter what state you're in, having waivers for your business is still always the smart move. Now, certain states may look more highly or may kind of frown upon waivers to a different extent. It is different in each state, but 100% of the time it's better to have a waiver than not.

Brandon Lake:
Okay, great. So talking about minors a little bit, there's a question in here about can a... And I think this is particularly true in the recreation industry. We often make a booking or reservation for a group of people. It might be my family. Is it okay to just have the customer sign or the head of household for example, or do we need to have signatures on a waiver for each individual participant?

Max Goodman:
So it does need to be for each individual participant. It needs to actually have a signature on a waiver. Theoretically, it could be the same waiver that has three or four signatures on there for a family or a group, but each person would need to individually sign off on that. That's for kind of the group part of the question. Now I'll address the minor part. For minors, what we do with best practices, again, are for the parent and the minor to sign the waiver. That's the best that we can do there. Some states don't lik... Remember, judges already don't like waivers and they definitely really frown upon trying when a child is hurt, they're really looking for any way to try to get that case thrown out. But regardless of the state that you're in, it is, you want a parent or guardian and the minor to both sign on that waiver. That's the best way to do it, to give your business absolutely the maximum degree of protection.

Brandon Lake:
But absolutely we're looking for individual documents being signed for each participant in that process.

Max Goodman:

Brandon Lake:
So here's kind of a unique question. This is particularly, so I'll just read it right here. It says from Russell. He says, "The land managers we work with for access to Federal lands to our services, National Park Service, US Forest Service, BLM, Bureau of Land Management specifically don't allow us to have waivers signed by our clients like in the true sense of a liability waiver. We use acknowledgement of risk forms instead."

Max Goodman:

Brandon Lake:
Do they have the same negligence exclusion as waivers?

Max Goodman:
Okay. So here it sounds like they're not letting you call a document a liability waiver, which is fine. They're allowing you though to give your clients an assumption of risk form, which, if worded properly could be exactly the same thing. So you would call it an assumption of risk form, and then I would include the exact same language. So it's key sections which are listing the individual risks, what risks are they actually assuming, and then if those Federal agencies will allow you, the second part being key is the agreement not to sue. If they don't let you have that part, that's okay. Still do the first part and then also have that part about venue where still it says, if they end up suing you where they can sue you so you're in control of where somebody can come after you.

Brandon Lake:
Okay, so question, this is from Amelda. She's asking about your bar scenario where you had the 12 bars and if the waiver was only good until the official end at 9:00 PM, right. So she's wondering and that she's actually doing an event, it sounds like a collaborative event with other standup paddle board kayak bike companies and she just wanted to clarify the problem with that particular waiver at the 12 bars was that it was only good until the official end of the event.

Max Goodman:
That's correct. So that's why it specifically didn't work there. There is a larger lesson though, which is, the waiver has to encompass really all of the risks, and if there's any way the judge can get out of enforcing it, they will. So in that case, for example, both the customer and the person who was doing the attacking, both of them were wearing Christmas sweaters at the time. Both of them had bought tickets to the event, they had attended the individual bars. Everybody knew it was not even an issue in the case that they were both participants in the event, but it happened just after the waiver said that it stopped applying. So the judge said, "Nope, we're going to allow the case to go forward."

So for her actual event that she's having, just be clear that if you have a time period that you make sure that the time period actually encompasses all of it and that you're also stating the specific locations for where it applies. So if it's an event that's moving from place to place, so for example, if there's a bike tour or something like that and you're biking from place to place that it encompasses-

Max Goodman:
And you're biking from place to place that it encompasses when they're in the store, when they're going on the path, when they're stopping at maybe a brewery or something like that, or ending at a specific event space, that the waiver is designed to encompass all of it. That you're actually apprising them of risks that happen at each of the individual locations, just so it's crystal clear for any court that is eventually maybe looking at it.

Brandon Lake:
So ideally in that particular case, would it have been better had they just extended the time to the end of the day, for example, and then you would've encompassed the entire day knowing that the bar was still open after 9:00 PM?

Max Goodman:
When we go back to our client, what we did was we changed it and had it end at when the bar closed. So that's just the way that we do it now. And then we also have additional security and then we also have somebody post in in the bathroom as well. We didn't before. And now on certain days, St. Patrick's Day, Cinco de Mayo, other holidays that are big like that with more wild crowds at those type of bars, we do that.

Brandon Lake:
Okay. So here's a good question, we hear it all the time at WaiverSign. I covered a bit of it in what I talked about, but I'd like to hear your opinion about it. Online waivers versus paper waivers, are they just as valid? Is one more valid than the other? What's your opinion?

Max Goodman:
So I have actually litigated this issue and as you correctly stated, an electronic waiver, if they're clicking, if they're electronic signature, the pen thing, it's all good. It is all a signature. Now, what would ideally be best? Well, oh sorry, let me back up for a minute. So that absolutely is the best practice is either electronic or a wet signature, that's all perfectly fine. It's really best if the electronic signature is then emailed on the waiver document to the individual participant as well. So that really helps. If you have both of those things, then that's equal to a person's signature on there as well. You don't have to worry about handwriting or anything like that. So yeah, the electronic signature is definitely good, especially when it's accompanied by that email.

Brandon Lake:
And for me, I've felt more peace of mind I guess knowing that all of this data is legible and easily findable. Really, when you're a bigger business and you're getting a bunch of these, storing them this is a little bit scary. Having to find one in your filing system, as organized as you may think it is, it could be a potential challenge.

Max Goodman:
And you've just saved them for years. Exactly.

Brandon Lake:
Yeah. Okay, so a couple more here we'll take. Some people are answering each other's questions, which way to go [inaudible 01:14:43]. That's great. Let me scroll. Let me just pop over here. I know there were a couple more. We talked about waivers for minors a little bit. Let me jump over to questions tab, we've got a whole bunch over here as well. So for a tour or activity that is consuming alcohol during the tour, for example, like a craft beer tour, and we've talked about a couple of these examples. Should it contain anything specific besides the clients must be 21 years and older to join the tour, or is that just one part of it? And should it just list all the risks of the tour?

Max Goodman:
So having an event that has alcohol is perfectly fine. The key thing would be to mention the facts that there's going to be alcohol and some participants may be using it and then listing the individual risks and then saying the injuries that may happen from this. So if it's a bike tour, somebody could fall or getting hit by passing traffic, something like that. And also injuries from the fact that other people will be using alcohol. And then also having of course the venue clause in there as well as would normally be in there. If it's an event that has alcohol, of course, you can also just say it's going to be a little bit of a higher risk, so you should be taking just more steps. This is all about preventing litigation and the waiver is one piece of that. So make sure you're checking IDs and things like that and other things that you're supposed to be doing for your specific city and state.

Brandon Lake:
Right. So here's a great question, I think this would apply to a lot of businesses actually. So this is specifically, this is from Matt. He has a rock climbing gym, wants to do a member appreciation outside there. Now, I imagine that might entail them actually going on a climbing location perhaps, right?

Max Goodman:

Brandon Lake:
Where their waiver might mention everything specific to their space, their climbing gym, indoor climbing for example. So would they need to create a separate waiver for that event?

Max Goodman:
Yeah, and in Chicago we have a couple or few of them. One of them is called Brooklyn Boulders and they do a similar thing where they have an indoor climbing wall and bouldering and everything and then they do an outdoor thing where they'll go somewhere where there's a little bit of outdoor. Not much in the Midwest, but they do do an outdoor thing. So you could have done it in one of two ways. Their initial waiver when it's actually drawn up, it can be drafted in a way to encompass the specific climbing gym's events, whether they're held at this location, which is your main location, any additional locations that are rented or owned by that particular entity or private event spaces including inside, outside parks, et cetera, or mountains, hills, whatever, cliffsides for that. It can be drafted like that.

Or it sounds like you already have a waiver for all of your individual clients for inside and so for you particularly, you would have an additional waiver just for this event. It would be an event waiver. It would just say we're going here, here's the location. The normal risks are basically the same as indoor climbing, just kind of a little bit more. And then that would be the way to do that and making sure you get their signatures on there. One quick thing, while electronic waivers by far are the best and easiest because of storage and all of the things that Brandon touched on, it's a good practice to additionally bring some hard copies of waivers, especially if you're doing an event just in case somebody shows up and they brought a friend or something like that and you want them to be able to join in.

They could fill out a paper waiver and then you could take that back, scan it into the WaiverSign system and get that back into the rest of the system with the rest of your waivers to get that taken care of. You just don't want to be out there and want somebody to participate and you're like, how do I really do this? So that's a good way to do it. You can bring some paper waivers with you.

Brandon Lake:
No, that's great Max. I've been told sometimes too that if somebody may refuse to sign digitally for whatever reason, and then what option do you have to present?

Max Goodman:

Brandon Lake:
We have that happen so infrequently, but occasionally there's something, some issue with the internet connection or something might happen. In those cases where you are remote and you have a scenario like that and need to sign on a personal device, WaiverSign specifically will work on those areas where you have a connection so you can have them sign digitally as well.

Max Goodman:
Well, perfectly.

Brandon Lake:
So an insurance question for you-

Sean England:
Brandon, I'm going to make a comment about that for Matt as well. Matt, no doubt you have a general liability policy in place and it's probably specific to your indoor operations. I would make sure to clarify with your underwriter that offsite locations are going to be covered as well because although a liability policy is written for bodily injury or property damage to a third party, there also can be a premises limitation as well as a scope limitation as well. So you may have an exclusion again on that farms page that excludes outdoor rock climbing from your policy. So you're going to want to check that and make sure that it would extend coverage. And if not, you can also get a special event policy that could just be a one day policy for a couple hours or whatever it needs to be. Can be really customized and that'll help trim down the cost and be much more palatable from a cost standpoint, but definitely make sure that your liability still extends to off site.

Brandon Lake:
Yeah, I think that's super important, Sean. I think a lot of us in the course of business, you get all your stuff done, you get your waiver in place, your insurance in place, time goes on, you say, "Hey, let's do an outside event, let's do something that's outside the norm." And you don't even think about it. So I mean, we've done things like that, but we've done little events and even concerts at our location and stuff and something could have happened at that location and it may not be on either of those, either in our waiver or in our insurance policy so that's a really great thing to bring up. Sean, this is a couple of questions for you here. So talk a little bit about insurance for seasonal companies. For all of those that are in the recreation space, it's probably a really applicable question. Can someone get coverage for a limited amount of time? For example, they're only operating four months of the year.

Sean England:
Yep, absolutely. And there's really two ways to go about doing this. It could either be a short term or a special event policy, and then special events are normally just a couple of days or one day, but you can extend it for a couple of months. Or it comes down to the transparency and just conversations that you have with your agent that they can then have with the underwriter is make sure that they understand the bounds in which you're operating. About three weeks ago secured a coverage for a mountain biking operation in Utah, they're operating for four months out of the year. Outside of that, there's a zero risk because nobody is operating and so we were able to move from a program that would've been about $2,500 a year for this business and it was just under 1,000. And that was just through communicating, making sure that it was the right program, the right fit, and letting that underwriter know these are the bounds in which we're operating. It's from this date to this date and that's it.

We still wrote a 12 month policy, but we put those limitations within the policy that it's clearly understood that that's where the coverage needs to apply. So it can definitely be done in a couple different ways and again, it just a little bit depends on what your business practice is and if it can be parsed out.

Brandon Lake:
And I imagine doing that, clarifying that can certainly help with the cost of your [inaudible 01:23:11] as well, right?

Sean England:

Brandon Lake:
So here's a question for both of you. This is actually a good one. This is asked from a tour operator perspective, but I think for a lot of different industries this could apply. So an instance where in this case a tour operator has crafted an itinerary that involves multiple suppliers or activity providers that are not their own business. And this is maybe a question for both of you because I think there's some insurance pieces you want to think about, and there may be also waiver pieces about this. So you have the tour operator who's selling or in a sense, a travel agent. They've put together this itinerary, they're using multiple suppliers to operate the tour. Someone gets injured on one of those activities where they're not the direct suppliers it's not actually their business. They sold the tour there and someone gets sued. How do they protect themselves and would that individual be able to sue the tour company that put together the itinerary with the different suppliers or be it another industry that's providing, selling, something and that has other companies that are providing the service?

Max Goodman:
Sure, I'll take it first from my end. The way that I would advise that company is, first of all, I would have an agreement which is similar to a waiver with the actual customer saying some language to the effect of in the event that you're injured from kayaking over here or whitewater rafting with this company or whatever it may be, basically in an activity with one of our partners but not with a service that we're actually providing, you understand that we are not in control. We are not partners with them. That we are not in control of their operations and so you are agreeing not to sue us for anything that happens due to their negligence specifically. That would be one line of protection. The second line of protection that I would do is I would say have an agreement because you're providing a huge value as the tour operator to those individual other companies that you're referring those customers to on their itinerary.

And I would have an agreement with them, which is basically an indemnification agreement that says, "Look company, we're the tour operator here. It's your job to make sure that they're safe. We don't control your operations, so you need to make sure your equipment's good and everything like that. And just in case somebody sues us for something that happens that you did, you agree to pay for any of the damages found against us and our legal fees. So in order to be our partner, that's what you do." And you might say, why would they ever sign that Max? They sign these things all the time. It's a basic clause that's in tons of contracts and it really should be in there because that's really where the risk is. They're the potential bad actor, not you as the tour operator and you're giving them the customer actually. So if they don't want to sign it, you don't need them. You can partner with a different company that will because it's an extreme amount of risk and something that you really don't otherwise control.

Sean England:
And I was just going to say something that looks like Janette, and I apologize if that's not how you pronounce it, but that Janette just stated, and that term is an additional insured. An example of this was I had a client that was a travel agent and she had one client and it was Philip Morris International, so cigarette manufacturer and they had a giveaway to their customers. That was an international giveaway, it was 40 people from all around the world and the more you smoked, the more entries you got. And so we had a dynamic group from various socioeconomic places, different countries, different experiences, and this tour had many different strange facets to it. We had sailing off of the California coast, jet skis, race car driving in Vegas, Grand Canyon tours, driving up north through Salt Lake. There were some different bars that they were going to and some good experiences. They were going to end up in Yellowstone doing some tours in Yellowstone so a very broad range of things.

And obviously this travel agent was having to line up and make sure that the risk management process was in place with all of these various providers because their customers, these winners, they only knew that they were getting a free trip. They didn't really know all the ins and outs and some of them had never even seen a jet ski. Some of them have never been on a boat. Some of them have never driven a car, and we really had some people that had never driven a car before. And so part of that process was making sure that each of these service providers listed our travel agent and Phillip Morris as an additional insured on their policies. The contract between Phillip Morris and each of these entities was also clearly spelled out on whose responsibility was what. And so the customer, the winners of this trip, they first had a contract or a waiver with Philip Morris that clearly stated, these are the various activities you're going to do or you have the option of doing. You can opt out at any point, no questions asked if you just feel uncomfortable.

And then when we got on site to those various places, it was okay, if you're going to participate, even though Philip Morris and this tour or this jet ski rental company, even though they have a contract now we're going to have you sign an additional one. So now we've got a contract between entities that clearly stipulates the risk transfer, and then we also had all of those participants that if they agreed, yeah, I want to write a jet ski. Great, now you're going to sign that company's waiver and it's very clear that you are assuming that risk. So additional insured language is very common. I'm yet to experience a situation where someone hasn't done it because businesses don't like to turn away business, but it might be a couple extra steps and a couple extra contracts, but definitely went a long way. And an insurance policy that probably should have cost a $100,000 we had enough waivers in place and things that if I remember right, I think she paid about $26,000 in insurance for two separate three week all-inclusive trips of this sort. So these waivers and these contracts make a very, very big difference on the cost of your insurance.

Brandon Lake:
Well, you guys there's a handful more questions, but we're here at the top of hour. We'll try to answer those separately. It's been a fantastic presentation here. I just want to point out as well, if there are any other legal questions you have beyond just waivers, Max can absolutely answer other things. His firm is really a full service firm, Max, that provides services around all kinds of everything legal. So if you've got questions around other things in your business, absolutely reach out to him. He's a wonderful resource and he's happy to answer some initial questions and so forth. He's not going to start running that billing clock in your first conversation. So he'll let you determine when you're going to engage with him and say, okay, here's a project, we can estimate this out for you and we'll get started. And so you'll always know what you're getting into on the legal front, right?

Max Goodman:

Brandon Lake:
Same thing for waivers. And I would just say $550 Max is so inexpensive for what the consequences are of not properly doing this. So I'd encourage everybody to do that. Again, if you're one of our clients and you haven't done that step, go and do it. Take a step back, talk to Max, talk to another attorney that you know who specializes in this and just have somebody who really understands what should be in that waiver and get it in there. And we're happy to take that and update your document for you or you can do it. And on the flip side of that, have an insurance agent. Sean's happy to look at this for you, but if you want someone to look over your waiver and determine if your current insurance is actually giving you coverage on things that may not be included in that waiver, that marriage between the two I think is really important. And you've done a great job pointing that out for us Sean so thank you.

And again, if you have any questions about WaiverSign, our team's there to help. And we really appreciate everybody tuning in today, and hopefully this has been a really helpful presentation. It certainly has been for me. I made several notes myself for our own businesses and really appreciate your time Sean and Max. Thank you.

Max Goodman:
Thank you.


Check Out More Webinars

Powerful integrations with these booking and website platforms will help you take your business to the next level.

Resmark Systems

All-in-One Booking System

More bookings with less effort. Beautiful online reservations, easy in-house bookings, automated messages, and comprehensive reporting. Learn More
Resmark Web

Results-Driven Websites

Say goodbye to your costly, ineffective, hard-to-maintain website. Reach more customers with a stunning, affordable easy-to-use website. Learn More