All businesses with even a modicum of risk need a liability waiver to prevent them from frivolous lawsuits.

A Release of Liability waiver is a legal contract in which the signer waives their right to make a legal claim against another party in the event of an injury or dispute.

If damages such as an accident or injury occur, the party who signed the waiver has agreed that they fully understood the risk of injury or death and that they and their heirs agree not to hold the provider of the waiver legally responsible. 

To learn about how electronic waivers work, how to write a release of liability waiver, and where to find free waiver templates, read this guide to help you get started.

Do release of liability waivers actually work?

There are plenty of instances where a waiver prevented a lawsuit against a business from being successful. In this article from our blog, you can read about businesses with inherent risk that were protected by waivers, including:

1. A bike tour company was sued by a man injured during a ride
2. A non-profit adventure company was sued by parents of an injured child
3. A retail play center in a mall was sued by parents of an injured child
4. A mountain bike park was sued by a man injured during a ride
5. A fitness club and a trainer were sued by an injured client

In all of these cases, the injury was deemed to be a result of ordinary negligence and the waiver blocked the lawsuit. Ordinary negligence is defined as “when a person or company fails to take reasonable measures to avoid causing financial harm or injury to others.” Signed waiver forms are a successful line of defense when an injury is deemed to be inherent in the activity and the business was not grossly negligent.

Gross negligence is defined as “a conscious and voluntary disregard of the need to use reasonable care, which is likely to cause foreseeable grave injury or harm to persons, property, or both.” 

As a service provider, you are legally required to exercise a reasonable standard of care when working with your clients. That involves proactively identifying and managing risks involved in your business. Failure to do so means that your waiver becomes a much weaker defense in court.

In order to ensure you are exercising your duty of care, it’s important to minimize risks wherever possible.

It is also important to note that waiver laws vary among countries and states/provinces. Louisiana, Montana, and Virginia, for example, don’t accept waivers as a defense in court at all. Some findings based on success rates of waivers in court suggest that some states have more stringent guidelines when it comes to when a waiver will be accepted, whereas others are far more lenient: 

Regardless, writing a liability waiver is always recommended as it provides your clients a chance to fully review and understand the risks involved with an activity before they engage in it. 

Can you sign a waiver electronically?

It’s natural to wonder if digital and electronic signatures are legally binding when you’re so used to people signing with a pen. Thankfully in this modern age, acts such as the U.S. ESIGN Act have made signing documents electronically perfectly legal and binding. In fact, electronic documents such as digital waivers are easier than paper, since you don’t need to store and file them somewhere in case you need them.

The terms “electronic signature” and “digital signature” are actually referring to two separate things. 

An electronic signature is an “electronic sound, symbol, or process attached to, or associated with, a contract or other record and adopted by a person with the intent to sign a record.” It is essentially the same as getting a signature on paper but signing with their finger and saving the document as a PDF – however, in the digital era, this is not as secure as a digital signature.

Digital signatures use algorithms to encrypt the document and also later validate the authenticity of the document. Most online waiver systems like WaiverForever provide options for both electronic and digital signatures.

How do I write a release of liability form?

No two waivers are going to be the same. Different industries, activities, and laws in the location, the action performed all inform how a company might write a waiver. However, the core legal clauses in waivers are pretty much the same – Here are some of the standard clauses you might find in a liability waiver.

Exculpatory Clause

An exculpatory clause is a standard waiver clause that states that one party won’t hold the other liable for damages, losses, or costs associated with incurred legal issues. These potential costs are typically the loss, damages, or additional legal fees that would arise from a lawsuit for liability waivers.

The exculpatory clause is an integral part of any liability waiver. For companies whose activities involve some level of danger or risk, it’s understandable why this clause is necessary. Accidents happen all the time, and someone engaging in something as casual as a massage or participating in an escape room challenge can still be harmed. It’s always better to be protected instead of leaving your business vulnerable to lawsuits.

Voluntary Assumption of Risk Clause

This clause outlines all of the risks inherent in the activity or procedure the signer is about to undergo. The clause then states that on signing, the reader understands and accepts the risks you outlined, so they can not seek legal compensation should they become injured due to those inherent risks.

However, this only protects against those inherent risks, sometimes known as ordinary negligence. Should your business be successfully proven of engaging in gross negligence, or a willful lack of duty of care, this defense can not protect your business against that lawsuit.

Indemnity Clause

Have you ever wondered who will have to pay the bill if one of your customers willfully or negligently damages your expensive go-karts or other similarly pricey equipment?

An indemnification clause is similar to an exculpatory clause. However, you also stipulate that the signer agrees to indemnify (material cover losses) suffered by you if they acted outside of your safety guidelines. For example, in the instance of go-karts, you would have to stipulate that they would be responsible for damages to your property or equipment if there were an accident due to reckless driving instead of mechanical failure. 

Where can I get free waiver templates?

If you are creating a waiver for your business, we highly recommend engaging a local lawyer’s services. This will ensure that the legal jargon is appropriate for your industry and the markets in which you do business. 

However, it can help to have a starting point, and WaiverForever provides some free templates and forms for different industries you can use to get started.

Be sure to use top-tier online waiver software 

A waiver is only as good as the solution you use to get it signed. WaiverForever provides an online waiver solution that has several best-in-class features including:

• Easily write and design waivers with your branding using our drag and drop waiver form designer.
• Get waivers signed on a browser or in our free app, which can be used as a kiosk app. Waivers can be signed even when the device is offline, and later uploaded to our encrypted secure storage.
• See who has signed a waiver or checked in, and easily search and follow up with anyone who has not. 
• Add additional survey questions to your waivers, and view analytics with custom graphs and charts to learn more about your customers.
• And More!

On top of that, we offer an unlimited free trial so you can try us out with no commitment – and no credit card is required! Learn why we were recently awarded a Higher Performer badge from G2 for Summer 2021.