As discussed in my first column on the topic of indemnities, this document can go by other names but given the ambit thereof I would suggest it be referred to as an ‘indemnity, waiver/release from liability and hold harmless agreement’ (For the sake of simplicity I will refer to it as ‘the indemnity’).
When you prepare your indemnity, bear in mind the ‘plain language’ provisions of the Consumer Protection Act, Act # 68 of 2008 (CPA) and in that context, it is imperative that ambiguity be avoided – more about that later.
At the outset it should contain a clause stating that the signatory acknowledges the content, has read and agrees to be bound by it.
There should be a link to your business terms and conditions (T&C).
Clearly state and include the extent of the indemnity such as your operations, premises, transport and activities, all of which must be stated to be at own risk.
Address the range of risks such as wildlife, unfenced pools, insects and adventure tourism. Bear in mind your clients may be foreigners and they may not be familiar with aspects such as the severity of the sun and insects. You may wish to refer to information on your website and in your brochures.
Mention obedience pertaining to instructions emanating from management, game guides, drivers and signage.
Questions and queries must be welcomed if not invited and a FAQ section on your website is a good idea.
Signature of the document must be a prerequisite, be it the client, visitor and/or the guardian of minors. This can be done online but your insurer may require signature of a hard copy.
If the party providing the indemnity has any doubts about their physical and/or mental condition before participating in any of the activities envisaged in the indemnity, they should consult their medical practitioner before signing the document. This should be extended to include medication and physical challenges.
Given the pervasive nature of the indemnity, participants should be advised to obtain adequate and ideally comprehensive insurance pertaining to all aspects of the indemnity – this can be a clause in the T&C.
Medical care administered by the supplier must be included and not amount to admission of liability or waiver of rights on the part of the supplier.
The extent of the indemnity and what is held harmless and indemnified must be clearly addressed and state that all claims are waived.
Law, jurisdiction and domicilium must be specified.
DISCLAIMER: Each case depends on its own facts and merits - the above does not constitute advice - independent advice should be obtained in all instances
