Many contracts use standard “boilerplate language” to disclaim and waive liability. Don’t worry, we’ll explain
Part 2 of Our Boilerplate Provisions Series!
What is Boilerplate?
Check out Part 1 of our Boilerplate Provisions series for further details. Basically, Boilerplate means terms and provisions in contracts that are standard and across the board in similar contracts.
This installment in our series focuses on the role of boilerplate provisions involving disclaimers and waivers. Disclaimers essentially notify a party agreeing to your contract that you are not responsible for XYZ. Waivers are terms that signal to an agreeing party that by agreeing they have forfeited (“waived”) their rights to XYZ.
If this seems nebulous and confusing, don’t be concerned, we’re going to explain!
A Quick Look at Disclaimer Boilerplate
Disclaimers can encompass a lot of topics and they are often handled differently depending on the jurisdiction. Accordingly, we will be looking at common disclaimers, their uses, and their limitations under CA law specifically.
Disclaimer of Liability – Website:
“Neither the [Entity] nor its contributors shall be held liable for any improper or incorrect use of the information described and/or contained herein and assumes no responsibility for anyone's use of the information.
In no event shall the [Entity] or its contributors be liable for any direct, indirect, incidental, special, exemplary, or consequential damages (including, but not limited to, procurement or substitute goods or services; loss of use, data, or profits; or business interruption) however caused and on any theory of liability, whether in contract, strict liability, or tort (including negligence or otherwise) arising in any way out of the use of this system, even if advised of the possibility of such damage.
This disclaimer of liability applies to any damages or injury, including but not limited to those caused by any failure of performance, error, omission, interruption, deletion, defect, delay in operation or transmission, computer virus, communication line failure, theft or destruction or unauthorized access to, alteration of, or use of record, whether for breach of contract, tortious behavior, negligence or under any other cause of action.”
This lengthy language is a passage you will see on most websites across the internet. This site too, has a similar disclaimer! Disclaimers like the above, on websites, state in essence, that the owners of the website are not liable for a visitor's use of their posted information. Any potential issues that could arise from usage of this website’s information are not the responsibility of the website owner.
Practical consideration → disclaimers of this nature often have to be visible and obvious to visitors. They may even be pop-ups that visitors have to address before they can continue to the content. In the interest of fairness, website visitors should see that they absorb and act on the information as posted at their own risk. This ensures that website owners have a slightly level of protection from an endless amount of lawsuits that could arise otherwise.
1. Disclaimer, State of California, Department of Justice
A Quick Look at Waiver Boilerplate
If disclaimers state, “hey, we are not liable for XYZ,” then waivers are somewhat complimentary in saying, “hey I’m going to waive my right to make you liable for XYZ.” This may seem like we’re splitting hairs, but let’s take a look. We will be examining waivers under CA law as well.
Liability Waiver – Potentially Dangerous Activity:
“The individual named below desires to participate in [ACTIVITY] (the "Activity") [provided by/sponsored by] [COMPANY NAME], a [STATE OF ORGANIZATION] [ENTITY TYPE] with offices located at [BUSINESS ADDRESS] (the "Company"). . .
I AM AWARE AND UNDERSTAND THAT THE ACTIVITY IS A POTENTIALLY DANGEROUS ACTIVITY AND INVOLVES THE RISK OF SERIOUS INJURY, DISABILITY, DEATH, AND/OR PROPERTY DAMAGE. I ACKNOWLEDGE THAT ANY INJURIES THAT I SUSTAIN MAY RESULT FROM OR BE COMPOUNDED BY THE ACTIONS, OMISSIONS, OR NEGLIGENCE OF THE COMPANY, INCLUDING NEGLIGENT EMERGENCY RESPONSE OR RESCUE OPERATIONS OF THE COMPANY. NOTWITHSTANDING THE RISK, I ACKNOWLEDGE THAT I AM VOLUNTARILY PARTICIPATING IN THE ACTIVITY WITH KNOWLEDGE OF THE DANGER INVOLVED AND HEREBY AGREE TO ACCEPT AND ASSUME ANY AND ALL RISKS OF INJURY, DISABILITY, DEATH, AND/OR PROPERTY DAMAGE ARISING FROM [MY PARTICIPATION IN] THE ACTIVITY, WHETHER CAUSED BY THE ORDINARY NEGLIGENCE OF THE COMPANY OR OTHERWISE.
I hereby expressly waive and release any and all claims, now known or hereafter known, against the Company.”
This is an excerpt of language that is common to see when you’re signing up for a slightly risky or risk-prone activity. When you’re skimming through the paperwork you have to sign before climbing on an indoor rock wall – this is what you’re signing. Essentially, if something occurs in the normal course of that sort of activity that winds up hurting you as a customer, you can’t come back and sue the business for all its worth.
2. Release and Waiver of Liability (Potentially Dangerous Activity), Practical Law Commercial Transactions
Practical consideration → waivers of this nature seem intimidating and maybe even a bit unfair, but businesses need some sort of protection or fun, slightly risky activities wouldn’t exist. Such businesses wouldn’t be economically feasible, because everytime a customer hurts themselves doing something routine, the business could face a suit.
Now, this doesn’t mean that all activities or issues that may arise are protected by these waivers. Many of these provisions have additional language stating that “gross negligence” or “unreasonable behavior” on the part of the business will not protect them from suit. That term may even be implied in the waiver without the additional language.
For instance, if you’re roller skating at an indoor rink, and you fall and bruise yourself, maybe even break your arm – if the rink, and equipment have been maintained properly, you probably don’t have grounds for a suit. However, if you fall from all of the wheels breaking off the skates because the attendants didn’t properly maintain/check the equipment, then you might have grounds for a suit. It’s not reasonable, it’s negligent, for a roller rink to not enforce policies that the employees check the skates for dislodged wheels.
When Do I Need Boilerplate Language About Disclaimers and Waivers?
Here we go with the lawyers’ favorite platitude – it depends on the situation! Certain circumstances will make inserting a disclaimer fairly straightforward (creating a website, entering into a sales contract) and waivers are generally a good idea for businesses involving potentially injurious activities (rock climbing, or bounce houses etc.) You may not know if your company and the activities you are engaging in warrant common disclaimers or waivers. So, remember to always ask your attorney.
Please check out the rest of our Boilerplate Language Series to learn more about the functionality of standard provisions in different categories of contracts!
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