Release of Liability Form and Indemnity Clauses

A release of liability is a legally binding contract between two people where one party waives the right to claim pecuniary (financial) damages - for either physical or damage to property - from the other.

Therefore, by signing the indemnity form, the signing party agrees that he/she will accept the risks associated with the activity and if an injury should occur, he/she will not sue, thus limiting the liability of either party.

"Liability" in law means that something that could go wrong has gone wrong. Therefore, in order to guard (indemnify yourself) against any form of liability arising you need at least a general release that will cover broad claims that are most often filed.

If you need a waiver of liability for a specific event, you will still use general terms, but in addition identify as far as possible all elements that could go wrong (the risks).

You will also require a declaration from the participant that he is medically fit to partake in the activity - this does not mean they need medical clearance from a doctor, but rather just a declaration that they are not suffering from any medical injuries that may increase their risk when participating.

We have a number of free Liability Waiver and Release Forms which you can use as templates:

Simple Release of Liability - This short form is general in nature, catering for an event or activity and created using language which is easy to understand

Indemnity Agreement and Indemnity Clauses - Tailored for children attending kindergarten or play school or any other place of learning, coaching or tutoring.

Model Release and Media and Marketing Release form for images, videos etc.
This form can be used by a photographer, event organisers, school, business owner etc. It gives a blanket media release for unrestricted use in print or electronic form. As such the images and videos can be used, for example, in a portfolio, yearbook, on the web or to promote events or businesses.

NOTE: The terms indemnity, waiver, release of liability, limitation of liability or a hold harmless agreement are used interchangeably to refer to the act where one party agrees not to hold another party accountable for any injury / damages suffered.

It is also important to note, however, that such a release of liability is still limited in terms of what can be indemnified against. A person or company cannot be indemnified against harms that are caused directly by their willful and/or gross negligent conduct. More about this further down on this page.

Frequently Asked Questions about Liability Claims

What is Joint and Several Liability? - When two or more parties are held liable.

What is Vicarious Liability? - For actions of employees.

What is Contingent Liability? - Protection against an uncertain future event.

What is an Indemnity Agreement?

An indemnity agreement is the same as a release of liability. It is the physical document concluded between two parties that sets out the general and/or specific instances where one party will not hold the other party liable for any harm and/or damages that may arise.

The form below is an example of a simple release of liability.

NOTE: Although it is established in law that a person cannot be indemnified from the harm arising out of their own willful and/or gross negligent conduct it is always good to have clarity in an agreement in order to avoid any confusion later on.

What is an Indemnity Clause?

An indemnity agreement is made up of one or more clauses that identifies the specific instances wherein liability may arise. There are a number of specific forms of liability that may be outlined in such a clause and we've identified a few examples.

As you go through the wording it will give you some good ideas on how you can tailor your liability waiver to suit your specific requirements. Try and foresee the dangers and pitfalls inherent to your business.

Waiver of Indemnity for a Child Attending a Place of Care or Learning

About the above indemnity agreement:

• The term "institution" is a general reference to any institution that may be employed to care for a child (i.e. a school, creche, informal child care facility, kindergarten etc.)


• It is a simple waiver agreement wherein a parent indemnifies a school(or other place) against liability that may arise due to the actions of a child whilst on their premises and/or when participating in specific school sanctioned activities.

Examples of Specific Indemnity Clauses and Their Exclusions

Hold Harmless Agreement When Using Funfair Equipment e.g. a Jumping Castle at a Child's Birthday Party

"I _________________, parent/legal guardian of __________________ hereby indemnify _____________________ as the proprietor of the "funfair" equipment and its employees for any damage and/or harm arising out of my child's use of such equipment."

This clause may be edited to include more than one child as long as the person signing the waiver is the parent and/or legal guardian of all the children identified in the agreement.

Exclusion: The owner of the funfair equipment would still be liable for any willful and/or gross negligent conduct that gives rise to harm and/or damage.

An example of such gross negligence would be the failure to properly maintain and/or operate the equipment where such a failure was the direct cause of the harm and/or damage. For example if a fan for the bouncy castle is left without the safety cover and this directly causes injury to a person or property.

Indemnity Clauses for Motorized Vehicles on a Private Raceway or "Track" e.g. Go-karts, Bumper Cars or Scooters

"I __________________ declare that I understand and agree to be bound by the rules and driving instructions provided to me by __________________ and/or its employees.

I declare that I am in good health, have good eyesight and am medically fit to partake and that I am not under the influence of alcohol or any other intoxicating substance.

I undertake to wear a properly secured crash helmet at all times whilst seated in or on a vehicle or scooter.

I agree that neither _________________ and/or its employees shall be liable under any circumstances for any damage done to and/or by any vehicle and/or person(s), entered by or ridden in by me while said vehicle is on any part of the track or any deviation therefrom."

Exclusion: An example of gross negligence would be the failure to properly maintain and/or operate the vehicle(s) and/track (broken crash barriers) or equipment (faulty danger signals) where such a failure was the direct cause of the harm and/or damage.

Liability Waiver for Individual and/or Group Cooking Experiences

"I __________________ hereby indemnify ________________ against all claims, loss, damage, costs or expenses arising from personal injury or death in connection with or resulting directly or indirectly from my participation in _____________ organised events (including, without limitation, any allergic reaction as a result of preparation and/or consumption of the meals).

If I have any food allergy I shall at all times consult with the personnel and ascertain my ability to partake or abstain from the event."

Exclusion: The class/event organizer will still be liable where the ingredients of the meals cannot be fully identified (allergens not identified), which may give rise to persons unwittingly consuming foods they are allergic to.

Team Building Activities - Release of Liability for a Group/Organization Taking Part in a Sanctioned Event at a Specific Location

If it is not a strenuous or particularly risky event e.g. attending a Tai Chi class, then the below should suffice. If it is a riskier team building activity such as river rafting or ziplining, each member of the group should sign their own and more specific release of liability form.

"In terms of [insert event] I __________________ expressly waive, release and discharge the agents, employees, officials and law enforcement of [insert location/area] from any and all liability for death, disability, personal injury, property damage and/or theft which may accrue to myself or members of my group/organization in connection with our participation in the above identified event.

I understand and acknowledge that [insert location/area] is relying on my representation that I have authorization to sign this document and that I will provide all members of my group a completed copy of this waiver prior to participation."

Exclusion: There is an exception in this instance where there may still be liability in terms of claims arising from the sole willful conduct and/or gross negligence of the Location (e.g. town, park, farm etc.) its officers, employees and/or other representatives.

Consequences For Having an Illegal Indemnity Clause in Your Indemnity Agreement

Consider the following clause in an Indemnity Form:

"I hereby indemnify the Company against all injury, damage or loss even if caused by the wilful act, gross negligence or default of any official, agent, employee or representative of the Company or any promoter, organiser, guarantor or sponsor of the event."

It would be very difficult (nearly impossible) to enforce this clause on the basis that it contradicts the law. As such, it is not possible to enforce an illegal clause in a contract and the contract will be read as if that clause had never been written into the agreement.

It is important to note that there are two potential outcomes once a clause in the agreement is deemed to be illegal.

• In the first instance: The clause may form an essential element(s) of the agreement and, if illegal, it may corrupt the entire agreement and render it null and void in its entirety.
  
  The legal term for this is void ab initio and in law it means that the agreement is void from the first instance, with the legal effect that it will be treated as invalid from the outset, thus having no legal effect whatsoever. It means that you do not have an enforceable Indemnity Agreement in place at all.
  
  You therefore cannot rely on the inclusion of a clause such as the following as a catch-all remedy in the above instance:
  
  "If any provision is held to be invalid or unenforceable, it shall not affect the validity of any other provision herein."
  
  Incidentally, a release of liability will also be ruled invalid from the outset if the person agreeing to the terms was forced to do so i.e. under duress to sign the indemnity.


• The second instance: This would be where the illegal clause does not form part of the essential elements of the agreement and so the agreement may still be enforceable, but will be read as if that clause had never been written in in the first place.
  
  In other words, there will still be an indemnification against liability, however, a party to the agreement will still be liable for harms arising out of their own willful and/or gross negligent conduct.

What is Joint and Several Liability?

There can only be joint and several liability when there are two or more parties that can be held liable for a general or specific outcome.

In this instance either person can be held independently liable for the full extent of the harm and/or damages stemming from the conduct.

An example of joint and several liability would be where persons A and B agree to be held jointly and severally liable for any potential harm that may arise from a particular event. When the event takes place, and a third party does in fact suffer harm then that third party may collect the full amount of damages from either A or B individually or both persons together.

This is the case even where the harm arose from the willful or negligent actions of either A or B individually.

What is Vicarious Liability?

Vicarious liability is a specific form of liability that is only applicable when there is an existing employment relationship between the party that caused the actual damage and/or harm and a third party. Therefore, the injured party will be allowed, in terms of the principles of vicarious liability, to claim the full amount of the damage and/or harm suffered from the third party employer.

There are three requirements that must be met in order to have a successful claim in terms of vicarious liability, namely:

• 1. There must be a relationship of control where the third party exercises control over the person that caused the damage and/or harm (an employer/employee relationship);


• 2. There must be an act (conduct) that caused the damage or harm; and


• 3. That act (conduct) must be committed during the course of a person’s employment.

An example of vicarious liability would be where a person works as a delivery driver (e.g. a courier, UPS, Amazon delivery etc.). In terms of his/her job description he/she will be driving on the road for a substantial part of the day delivering packages.

The driver is then involved in a car accident with party B that is directly caused by the driver's own fault. The accident took place during the course of the delivery driver's employment as he/she would not be on the road but for the nature of his/her employment.

Seeing as there is harm and/or damage caused by an employee during the course of his/her employment, party B will be able to claim liability directly from the employer (i.e. Amazon, UPS, the specific courier company) in order to recover the full amount of damages.

What is Contingent Liability?

A contingent liability is liability that may be incurred by a person/entity only once a specified uncertain future event takes place. On this basis there is a chance that the liability will never actually be incurred should the specified uncertain event never arise.

An example of such contingent liability would be where John invests in company A on the basis that company A will secure a specified manufacturing yield in the future allowing John to benefit in a return on his investment.

John would only provide the investment to company A on contingency that should company A not secure the desired yield, company A would be liable to cover John's investment inclusive of interest accrued over time.

In view of the above the unknown future event is whether company A will successfully obtain the desired yield.

Should company A achieve this goal there will be no enforceable liability as John will have received the desired return on investment.

However, when company A fails to achieve the desired yield then the contingent liability will become enforceable and John will be able to claim his initial investment back from A with the accrued interest.

Even the most simple release of liability or an indemnity clause in your agreements can protect you from potential financial liability and is better than not having it at all.

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