How to create a waiver for travel and tours

Updated February 2022 – No matter what type of action and adventure your company provides its customers with, it’s important to cover your ground legally. There is a certain amount of risk and liability associated with each type of tour and activity, and all tour operators should have their patrons sign a waiver for travel and tours as a form of protection.

In this article, we’ll go through every detail of waivers and liability release forms within the Experiences Industry.

What is a waiver?

Certain tour and activity businesses may place signs around their premises that warn customers of specific dangers. These signs may even state that the company isn’t liable for any damages that may occur during tours and activities. Unfortunately, such signs have little to no legal effects.

The proper way to avoid liabilities and lawsuits is to have a liability waiver or release form in place. Liability waivers and release forms ensure that a customer acknowledges the risks involved in participating in certain tours and activities, and waives their right to sue your business from injuries sustained from the activity.

Now, you may think that having a waiver for travel and tours or a liability release form in place covers all your bases, however, this isn’t true. Waivers shouldn’t be a substitute for liability insurance. Furthermore, lawsuits can arise from activities or accidents not covered by the waiver.

For example, your waiver may release you of liability for injuries sustained during an activity. However, the waiver might not protect you from injuries that may happen within your premises. (e.g a customer slips due to wet floors).

What are the consequences of not having a waiver for travel and tours in place?

Operating a tour and activity business comes with a set of risks and challenges on a daily basis. There are many uncontrollable risks that no one can foresee. And depending on the nature of the tours and activities, there are certain risks that are more obvious than others.

Water rafting, for instance, entails a number of risks that are hard to predict. However, sudden and jolting movements are usually expected. These movements can often cause injuries to the neck and shoulder, which most people are already aware of.

It would make sense that operators will not be held responsible for common injuries most people are familiar with. Especially when they are willingly taking part. However, there are instances where people get injured and want compensation for it. This is where a waiver comes in handy.

A lack of a waiver leaves operators at risk of being sued or summoned to court for a lengthy legal battle. This results in a costly process that involves huge legal fees to defend lawsuits and to pay for damages sustained.

4 tips in creating a waiver for travel and tours

1. Pick a disclaimer

You should start by researching the various types of liability releases and disclaimers that are usable in court. According to Travel Agent Central, there are two main types of disclaimers that can be used by people in the travel industry:

Third-party disclaimer

The most common disclaimer used by those in the tourism industry is the third party disclaimer, which states the services that will be provided by the company and informs the customer that the company is not responsible for any loss, theft, damage or personal injury that occurs during a particular tour or activity.

Agent negligence disclaimer

The agent negligence disclaimer imposes an obligation on all parties involved (i.e operator and customer) to avoid harm to a person that you ought to know could suffer damage or loss from certain particular actions without the need to 

In other words, an agent negligence disclaimer allows operators to not have to proactively warn another person of an ‘obvious risk’, nor is an operator liable for harm suffered by another as a result of inherent risk or an obvious risk in relation to a recreational activity. 

Agent negligence disclaimer can be more difficult to craft. It is often necessary to meet certain requirements before the disclaimer can be considered legally valid. It might be best to avoid this type of disclaimer when creating a liability release form.

2. Contact a lawyer

If you prefer to write your own liability release, contact a lawyer to complete the language for you. A legal professional can consult with you about the various activities you offer and your legal needs as a business.

The National Tour Association recommends that tour operators include an Assumption of Risk and a Liability Release portion of their form:

• The Assumption of Risk asks the customers to assume personal responsibility for their actions and consequences during the course of an activity.
• The Liability Release specifically releases liability from the business providing the tours and activities.

While it provides these recommendations, the NTA notes that all tour businesses should have their own legal counsel craft and review their legal documentation and forms.

3. Include third party contractors

Many tour companies use third-party contractors to provide their guests with a particular excursion. If that is the case for your company, contact the third-party supplier about their own liability release forms. You may be able to use their form for your guests.

In the event that you and the third-party supplier intend to use the same forms, ensure that all parties are aware that your customers will use the forms. Have legal counsel from both your company and the third-party contractor review the form and decide if it is the best choice for your business.

4. Look to trade associations that may offer waiver for travel and tours

Some trade associations will provide their members with liability release form waivers.

For instance, the diving trade association, PADI, offers its members a liability release form.

The waiver that is provided by PADI addresses several different issues throughout the form:

• The risks involved with scuba diving
• The acknowledgment by the participant that the company, including its employees, subsidiaries, and the PADI organization are not responsible for any accidents or injuries that result from the experience
• After all of the risks have been acknowledged, the participant must sign and date the form before they can participate in a PADI experience

Having your industry association set the standards of the waiver will give you (and your customers) greater confidence that nothing has been left out.

What should a waiver for travel and tours include?

Now that you understand the importance of waivers, especially for tour and activity operators, it’s time to make your own. When creating your waiver, you want to ensure that you capture the main important details. These details should include the 4 W’s and 1 H – who, what, when, where, how.

• Who – These are your customers that voluntarily partake in your tours and activities. By signing the waiver and detailing their full name, they’re making a promise not to pursue legal action against your business in the event of an accident or injury
• What – This details out what will be given in exchange for the promise? Generally, being able to participate in the activity is the exchange.
• When – This section details when the waiver comes into effect. This is usually prior to the commencement of the activity
• Where – This is the address of your business premises. In the event that there is not a fixed location (i.e. city exploring tours), this can be described in the ‘What’ section instead. (e.g activity involves a tour of Rome, Italy.)
• How – This final section describes how neither party admits they acted wrongfully by signing the Waiver

Additional provisions

A waiver may detail any injuries or accidents that may have happened in the past. It can also describe any potential injuries that may occur based on assumptions. This allows operators to protect their business based on past experiences and assumptions of future events.

To further solidify your waiver for travel and tours, you can also add one of these additional provisions:

• Parent or Guardian Signature: minors under the age of 18 are legally unable to sign contracts. As a result, they should have a parent or guardian co-sign the waiver. However, it’s important to keep in mind that in certain states, a parent or guardian can’t waive a minor’s legal rights to sue for negligence
• Medical Treatment: the person will not sue in the emergency event where medical treatment may be given and may cause the person further injuries (i.e allergic reactions)
• Insurance: the individual is accountable for their own insurance, including life, medical or health insurance
• Assumption of Risk: the participant understands that the activities could be dangerous and could cause injuries yet agree to the potential risks and damages (i.e injuries and accidents)
• Modifications: any changes to the waiver must be in writing
• No Admission: signing the waiver doesn’t mean either party admits wrongdoing
• Photographic Release: the participant agrees that images or recordings can be utilized in reference to the event 
• Right to Attorney: both parties signing the waiver understands that they have the right to consult with an attorney about the document before signing it and are otherwise signing it voluntarily
• Severable: in the instance where one – or more – parts of the agreement aren’t valid, the remainder of the waiver will still be considered valid
• Witness or Notary: the signature of a third person (witness) that confirms the form was truly signed by both parties

Using your liability release form

A liability release form is an important part of any tour and activity business, as it protects you legally and helps to limit the amount of liability you take on. This can help with your insurance costs and ultimately allow you to increase your profit margin.

It’s important to inform your guests of the liability release form at the time of booking. Remind your customers that they should take the time to read over the form and agree to its terms and conditions before signing the paperwork. This is a legally-binding document, and your patrons should be aware of its significance.

Once you have a liability release crafted for your business, make sure you collect a signed copy from every single customer. This will allow you to relax and enjoy the process of providing your customers with the experience of a lifetime!

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