These best practices may seem onerous, but we have spent considerable time researching and discussing each point with our lawyer and insurance broker in order to come up with best practices that improve the enforceability of online waivers in court.
Please note: We are in the process of updating the e-waivers & best practices according to new legal advice. We will let all clubs know as soon as we have updates to share.
- The online waiver document needs to include the exact wording from the FMCBC’s Universal Waiver with similar colour highlighting and bold text formatting.
- The online system needs to present the waiver clearly and unambiguously as a stand-alone document that is not incorporated into the membership application form, sign-up form or any other forms.
- Member/guest information needs to be collected and should include family name, given name, date of birth, and current email address.
- ‘Agree’ checkboxes need to be included for each waiver statement.
- A text string method of signing (typing of full name) needs to be used – a checkbox is not a sufficient means of signing.
- Submission of the waiver must be restricted until each checkbox is agreed to and the document is signed.
- A signing confirmation email needs to be sent to the signing party’s email inbox and a reply must be received to confirm the waiver signing action. An email address must be unique to the applicant and not shared by other applicants.
- A process for securely storing, retrieving, and backing up the digital data needs to be in place.
Storage of Online Waiver Data
The following points need to be considered when designing a system for storage of online waiver data:
- Data needs to be easily and reliably retrieved.
- Data needs to include personal information: full name, date of birth, phone number, email address.
- Data needs to include timestamps and meta-data.
- Data needs to be securely stored and the owner of the data needs to have a method of proving that the data cannot be tampered with or altered.
- A reliable off-site system for backing up the data needs to be in place.
- As online systems are continually changing, a description of the user process must be stored with each version of the online waiver signing process.
- Ideally, signed waivers should be stored indefinitely, even if stored electronically, because “historical” waivers demonstrate the person’s familiarity with waivers.
Additional Points to Consider When Using an Online Waiver System
- Guests: A process needs to be in place for guests to view and sign the waiver in advance of participating on a trip. If no online process is in place for guests, then paper waivers should be used.
- Family/Couple Memberships: Clubs who have couple or family membership categories will need to have an online waiver system in place which requires each adult member of the family or couple to sign the waiver before the membership application/renewal can be completed.
- Minors: Unless the process for an online version of the FMCBC’s Acknowledgement of Risk (AR) form for minors is approved by the FMCBC, the AR form needs to be signed on paper because it requires three signatures (minor and his/her parent/guardian, and a witness).
- Technical Skills and Support: To ensure that a club is storing the appropriate data, which will be their first line of defense from a claim, it is recommended that the club seeks an individual with programming experience to develop their online waiver system. The FMCBC has developed an optional system for clubs who would like to have an online waiver system in place, but do not want to develop one on their own or do not have the technical skills within their club to develop one on their own.