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How and When to Use Waivers

By definition, a waiver is a legal document that, once signed, tells a court that the signee has given up a right that he or she was afforded by law. In business, waivers can be used for a variety of legal purposes. Below are some of the more common waiver types.

Liability Waivers

Liability Waivers absolve the named parties in the document of listed responsibilities. By signing the wavier, the signee promises not to sue or seek other retribution for any injuries or losses incurred when working with the provider named on the waiver. An Indemnity Agreement is a type of waiver that is often used in business.

Common Uses of Liability Waivers

Possibility of Personal Risk or Injury

In recreational endeavors, the chance of injury is high. For companies that facilitate these types of experiences, having a liability waiver signed and on file is a wise decision. For example, a skydiving business will often require its customers to sign a liability waiver, releasing the business from any liability if the customer should become hurt or injured in the course of his or her dive.

Recreational Organizations or Leagues

Across the country and the world, children and adults participate in recreational sports leagues and activities where injury is possible. It is wise for the league’s organizers or the recreational department to have participants sign a liability waiver absolving the league of responsibility for any injuries incurred while the league participant is a member. It is important to note that, in most states, having a minor (anyone under the age of 18) sign a liability waiver is considered illegal and can make the document unenforceable; in these states, liability waivers must be signed by a legal parent or guardian.

Work Activity

Employers often ask their employees to sign a Work Activity Waiver that ensures the employee will not hold the organization responsible if he or she should be injured while performing normal work-related activities. This is typically used in situations where the risk of work-related injury is high (i.e. in factory settings where heavy machinery is used, or where repetitive motion can cause a lasting injury, such as carpal tunnel syndrome).

Contracting Services

A Waiver and Release of Lien by a Contractor is an agreement between a property owner and the contractor that states the contractor will remove any lien placed on the property once all services and goods have been paid in full. A lien allows the contractor to legally claim ownership of the property until all debts have been paid.

Waivers for Legal Proceedings

The following are different waivers that can be used in legal instances.

Waiver of Service

In a lawsuit, it is often a requirement that all parties are served documentation personally. A defendant can choose to waive this right by filing a Waiver of Service. This absolves the plaintiff from the requirement of paying for a court official to serve this notice. It is more common for the defendant in the case to agree to a Waiver of Service; however, in instances where both parties are eager to reach a resolution, the plaintiff may also request the Waiver of Service.

Waiver of Representation

In business proceedings, one or both parties can waive the right to be represented by legal counsel. By filing this waiver, he or she is telling the court they are fine to move forward without legal representation. There are some instances in which this waiver is not applicable: namely, if the business transaction requires legal representation, or if the other party is being represented by counsel.

Waiver of Notice

This waiver can be used to legally notify someone of an event. It is typically used in conjunction with Board of Directors meetings that require the board members be notified, in writing, of the time and place of the meeting.

Waivers for Business

Non-Manufacturer Waiver – Individual

When a small business is awarded a government “Set-Aside” Contract, there is an expectation that the business will supply all of the materials and perform the work outlined in the contract they agreed to when they signed it. However, some small businesses are not able to handle all of the manufacturing requirements of a given contract. The Non-Manufacturer Waiver allows these businesses to supply materials manufactured from another source.

The Non-Manufacturer Rule is regulated by the Small Business Administration; as such, it’s imperative that you conduct research to determine that another small business cannot fulfill the needs of the contract before requesting a Non-Manufacturer Waiver from the SBA. If there isn’t a small business that can handle the workload, that’s fine; it’s just best to know you have researched it, as the SBA will want to see that documentation.

The regulations surrounding Non-Manufacturer Waivers and small business classification are defined and monitored by the SBA. Some of the more common requirements are:

  • More than $25,000 worth of supplies is required for the job
  • Contractors have less than 500 employees
  • Contractors’ primary business is in the retail or wholesale trade
  • They normally sell the type of product being supplied by another business

To apply for a Non-Manufacturer Waiver, you should include the following:

  • A statement identifying the specific products you are requesting in the waiver
  • Market research supporting your findings that there are no known small business manufacturers that can supply the requested items
  • Solicitation number for the procurement of the required items, the NAICS code, estimated amount of the procurement and the procurement history
  • If the contract is expected to exceed $500,000, you will also need to provide a Statement of Work
  • A narrative statement that outlines the contracting officers’ efforts to find a small business manufacturer for the items and the results of the search
  • Any other market surveys that have been performed
  • Any discussions with small business representatives to find manufacturers
  • A statement that there are no known small business manufacturers for the items and that no small business can fulfill the request

If requesting a waiver for more than one product, you will be required to submit all of the documentation above for each waiver. Waiver requests should be sent to the attention of the Director for Government Contracting. They can also now be sent by email to nonmfgrulewaiverreqsts@sba.gov.

Non-Manufacturer Waiver – Class

A class of products is defined as a group of similar products that fall within a certain category. Anyone can apply for a Class Waiver, whereas only the contractor can apply for an individual Non-Manufacturer Waiver.

To apply for a Class Waiver, you will need the same documentation outlined above. The SBA has a great form you can use to apply for this type of waiver. Here is a list of the types of classes as defined by the SBA. You can also submit these types of waiver requests via email to nonmfgrulewavierreqsts@sba.gov.

Difference Between a Waiver and a Release

When discussing waivers, it is common to also hear the term “release”; however, they do not mean the same thing and cannot be used interchangeably in the legal world.

Here is the main difference: when a waiver is signed, the signee is agreeing to hold harmless the named party of any legal obligation. When a release is a signed, the signee is transferring their rights for a specific instance to another party.

Here’s a practical example of when a release is used:

  • At a fashion show, all of the models sign a release, giving the photographers or designers the right to use their images in a variety of ways after the fact. This means that if their images are being used per the terms outlined in the release, the models cannot make a claim for reparations or recompense after the fact.

In general, waivers are key business documents that often protect you from further damages or legal action. As with all legal matters, it is best to consult an attorney to make sure you have worded everything correctly so that it will be easily enforced at a later date.