As a professor of sports law at Syracuse University and a lead editor of the book, “Law for Recreation and Sports Managers”, attorney John Wolohan knows a thing or two about release of liability waivers. Below, Mr. Wolohan briefly explains some of the basics of waiver law and the benefits of using digital smart waivers.
The Waiver Basics
John Wolohan, J.D.
While it is undeniable that electronic waivers, signed by an adult, can be an effective tool in protecting sport and recreation providers from negligence liability, some organizations may still have questions about what a waiver is and the benefits of going digital.
Before considering electronic waivers, it is important to understand how the courts have traditionally viewed waivers. Basically, a waiver is a contract in which a person agrees to relinquish his or her right to sue the service provider in any event the participant is injured due to the provider’s simple negligence.
When reviewing the legality of waivers, therefore, the courts will apply fundamental contract principals. As such, it should be noted that depending on the jurisdiction and how well the waiver is written, the majority of courts will uphold the legality of the electronic waiver. In addition to contract law, it should be noted that electronic waivers and other electronic contracts are also governed by two additional laws: the Electronic Signatures in Global and National Commerce Act (E-SIGN), at the national level, and the Uniform Electronic Transactions Act (UETA) at the state level.
E-SIGN, which was signed into law by President Clinton in 2000, is designed to give legal protection to online or electronic contracts and give them the same weight as paper transactions. In addition to clarifying the legality of online or electronic contracts, E-SIGN also clarifies what constitutes an electronic signature. Under E-SIGN “the term “electronic signature” means an electronic sound, symbol, or process, attached to or logically associated with a contract or other record and executed or adopted by a person with the intent to sign the record”
And while clicking on or checking a box to accept the terms of the waiver may be protected by the courts, the “smart waiver,” by allowing the user/participant to actually sign the form electronically provides even stronger legal protection in the courts' eyes. With the user/participant’s signature as evidence, it is clear that the individual signed the document and understood what he or she was signing.
Another benefit of digital smart waivers is that the waivers make it simple to include a statement concerning which jurisdiction or state laws will apply in the case of a lawsuit. The reason this is so important with online or electronic waivers is because you do not want to be defending a lawsuit in an out of state court. A real possibility in today’s electronic age, since most state courts are willing to exercise jurisdiction over out-of state and international businesses if they believe that the business, by purposely soliciting commercial activity from out of state participants, has sufficient commercial activity within the state to make jurisdiction reasonable.
ONLINE WAIVER CHECKLIST
The following checklist is designed specifically for sport and recreation administrators, but should be followed when writing any type of waiver. Important to note: when drafting your waiver the language should always be reviewed by an attorney familiar with your industry and state laws.
Again, if you have any questions about the legal language in your waiver, be sure to consult your legal adviser. If you have any questions about formatting your waiver and converting it into a smart waiver, contact the Smartwaiver Team.
- Attorney John T. Wolohan (firstname.lastname@example.org) is a professor of sports law at Syracuse University.
One of the most frequent comments we hear from our users is: “We love using Smartwaiver, but we would love it even more if it were integrated with our CRM.”
Well, we would love it if Smartwaiver were integrated with your CRM too! That’s why we developed an extensive API; a set of code rules that programmers can use to create a direct integration between Smartwaiver and other web-based software programs.
Several software companies have done some pretty great things with the Smartwaiver API, like:
Our friends over at Burble Software, a dropzone management solution for skydiving facilities, have been using Smartwaiver’s API and webhooks to streamline the online reservation process for both jumpers and businesses.
The set up for the business couldn't be easier. Dropzones need to simply copy the unique API key from their Smartwaiver account and paste it into their Burble account settings.
Once the two are set up to talk to each other, the information from Smartwaiver is immediately sent to Burble after a waiver is signed and then attached to a current or future reservation. The dropzone can then view the status of the jumper’s waiver in their Burble account.
The integration provides a seamless experience for the customer signing the waiver and makes it easier for the staff to keep track of the waiver in their reservation system.
You Too Can Have a Direct Integration
If you use a web-based CRM or POS that you think could be enhanced with a direct Smartwaiver integration, take a couple minutes to contact your software company. Email, call, tweet, post your request and simply let them know that having your smart waivers directly integrated with their software would make your life a whole lot better. Feel free to copy and paste the language below.
"Hi. Our company uses Smartwaiver for online digital waivers. It would greatly benefit our company to see a direct integration between you and Smartwaiver. Please contact Jim at email@example.com to get an integration started."
If you are a software company wanting to use our RESTful API and need some help setting it up, shoot us an email to let us know. We’re happy to help in any way we can.
For any business that’s had to deal with paper waivers, the decision to move to Smartwaiver is pretty obvious. Ditching the paper and using Smartwaiver saves time and frustration for both the business and their customers while providing valuable business insights. For smart, forward-thinking insurance companies the benefits are just as clear: secure, online storage, security features like Certificate of Authenticity and Auto Photo Capture on every waiver, required fields, and so on...
One of our smart, forward-thinking insurance partners, Affiliate Guard Insurance, wanted to share their thoughts on why they recommend Smartwaiver and going digital.
Digital Smart Waivers Versus Paper: Why It Matters
By: Vaughn Vernon, Owner, Affiliate Guard Insurance
Affiliate Guard provides insurance for over 20 percent of the 10,000 CrossFit gyms worldwide. And while the experience at every box is different, one thing most athletes can expect at the front door is the same: they must sign a waiver before stepping foot on the rubberized floor.
Today my clients can choose between offering paper or digital waivers to their athletes. Right now, more than half of our clients use digital waivers, and we are working toward increasing that to 100 percent for a number of reasons.
The first reason why is also the most obvious: you never have to physically look for an online waiver in the event you get drawn into suit. Most CrossFit owners are community-builders and athletes, not file clerks. It’s easy to misplace a piece of paper when space, time and personnel resources are tight.
Storage is an issue for so many box owners, and digital smart waivers are stored in the cloud. If you move your location, you won’t have to worry about moving files, cabinets, or papers. Smart waivers are safely kept in your online storage system and easily found in the event you should need them.
And you may need them. Most states require that waivers be kept for a minimum of three years after they’re filled out. If you live in the sunshine state of Florida, you need to keep them for five years. That adds up!
A small box sees hundreds of clients in a year, and a larger box could see thousands through competitions and trials. If you sell your business, you are still personally responsible for anyone that draws said box into suit for a minimum of two years afterward, and more in some states.
Even if your organization is dissolved, the box changes name, and you have a whole new life, YOU still need to be in possession of your former athletes’ waivers. It’s not wise to trust anyone who buys your box to keep these important papers. Go digital and they’ll always be a click away.
Here’s some advice that I tell my clients: Every single person that walks through your doors needs a waiver. I don’t care how busy you are, if your printer ran out of toner, or your head coach forgot to get the copies made. You must protect yourself. Athletes can get hurt doing CrossFit, spectators can get hurt watching CrossFit, and if there’s no signed waiver, you are on the hook for their injuries.
Less than ten times in my career I have seen a box owner drawn into suit without a waiver in hand. The reason why matters not. It could have been misplaced or damaged in a fire. The box dog could have swallowed it whole. Whatever the reason is, if you enter court without a waiver, you are going into a gunfight with a butter knife.
Not on my watch! Transfer to a digital platform like Smartwaiver, and you will be good to go. It takes only a few minutes to train your team on how to digitally sign someone in. You will thank yourself in the long run.
For many Smartwaiver customers, winter break is not really a break at all but one of the busiest times of the year; a time when vacationing kids and parents flock to activity-based businesses looking for fun things to do during their time off.
If you’re one of those businesses, be prepared for the influx of customers this holiday season with these Smartwaiver tips:
Put Your Waiver On The Interwebs
When you send out those promotional holiday emails, posts and tweets to your customers, don’t forget to include the link to your smart waiver. Your customers will appreciate being able to fill out their waiver ahead of time, and you’ll appreciate having the waiver on file when they get to your location. Simply look them up in your Waiver Console by last name, check them in and they’re off!
Add a Scannable Barcode
If you have a 2-D scanner handy at the front desk, speed up the check-in process by setting up a barcode on the confirmation email. Customers that sign the waiver from home can simply present the confirmation email on their smartphone when they arrive. Scan the barcode on the email and they’re automatically checked-in.
Add More Kiosks
Avoid the potential for long queues by setting up an extra kiosk or two in your lobby. If you have a spare tablet from home or even a laptop lying around in the back room, you can set them up with your smart waiver to help with the lines that might form during busy times.
Temporarily Upgrade Your Service Plan
If you’re getting close to your allotted signed waiver limit you can easily upgrade your plan at any time and then switch back to your old plan when things slow down. Your bill will be prorated when you move your plan up and down.
Here's to a busy, prosperous and streamlined holiday season for all!
If your business offers multiple activities, you might require customers to sign a waiver specific to the activity they’re participating in - which means you have multiple waiver templates to manage. One of the many benefits of turning your waiver into a smart waiver is the ability to create an unlimited number of waiver templates (which you can edit at any time). You can then display your multiple waivers on the same page on what we call a Waiver Index Page.
Setup in a Few Simple Steps
When creating your smart waiver, simply go to the Options tab in the waiver editing tool and place a check in the box under the Waiver Index Page dropdown. Give your waiver a descriptive title that customers will understand, select the position on the page where you’d like the waiver to appear…
and you’re all set!
Your Smartwaiver Kiosk
Now when you use the free Smartwaiver Kiosk app on your iPad or Nexus tablet your Waiver Index Page will automattically display all of the waivers you've selected to be on the page.
On The Web
Like each smart waiver you create, your Waiver Index Page has a unique URL. So if you want to show links to your waivers on one webpage, you can send out the URL to the Waiver Index Page. From here your customers can choose which waiver they need to complete.
You’ll find the URL in your Waiver Editor. Just click on the icon next to your waiver title and then copy and paste the URL from your address bar.
You can also choose to display your Waiver Index Page on your waiver widget.
Viewing The Signed Waiver
After a waiver is signed, you’ll see the title of the waiver in your Waiver Console under the Waiver Title. If multiple waiver templates have been signed you can narrow down a search for a waiver by using Filters.