Waivers are signed for two purposes:
Which help the waiver stand up in court if contested.
Traditionally waivers were paper based documents that were signed in ‘wet ink’ by the person who was waiving their rights, and then either handed physically, or posted to the intended party. Though most people think of a signature as being a depiction of the signer’s name, in fact any kind of mark that signifies intent is a valid signature – even a simple ‘X’.
In the 1980s this got revolutionised with the advent of a fax machine – suddenly paper documents could be sent instantly! In this case a wet ink signature still exists, the fax just enables a copy of the signature to be sent instantly. Initially courts would not always consider faxes as definitive, requiring an original within a certain period, but over time faxes did start to hold up in court even without the original.
The growth of the Internet promised a much bigger revolution. Waivers could be signed on a mobile device or computer and sent electronically with an entire digital existence and absolutely no pen or paper involved.
The US Government defined an electronic signature in the Federal ESIGN Act as:
“an electronic sound, symbol, or process, attached to or logically associated with a contract or other record and executed or adopted by a person with the intent to sign the record.”
Just as with paper signatures, what is important here is the intent, so a signature does not need to be a depiction of the signer’s name, and it doesn’t need to look like the signer’s handwritten signature. It just needs to indicate intent
There are many advantages to using online waivers with electronic signatures as compared to traditional paper-based waivers.
The short answer is yes!
But for those that are interested, a bit of history. In the earlier days of digital signatures, some of the first regulations mandated that digital signatures use certain types of technology – for example the Utah Digital Signature Act passed in 1995. Other States, such as California, were more liberal, and gave documents the same legal status whether they were electronic or paper, allowing all types of electronic signature.
This resulted in patchwork of State-wide regulations which was not great for interstate comerce. This was resolved on the 30th June 2000, when Bill Clinton used an electronic signature to sign the ‘Electronic Signatures in Global and National Commerce Act’ (ESIGN Act) into law. The ESIGN Act states that contracts and signatures “may not be denied legal effect, validity, or enforceability solely because it is in electronic form”.
This act makes electronic signatures legally binding as it states:
The short answer is yes!
In 1999 the EU passed the EU Signature Directive, which stated that electronic signatures made based on certain technologies would be considered as equivalent to paper-based signatures. This was then superceded by the ‘eIDAS Regulation’ which went into force in 2016, and stated that electronic signatures “shall not be denied legal effect solely because it is in electronic form”, which effectively means that any kind of evidence that indicates the signer’s acceptance or approval (whether a scanned image or clicking an ‘I accept’ button) shall have legal status and can be used in court.
That being said the degree of legal standing would depend on the particular circumstances around the capture of the signature, and a signature captured using a secure cloud service with an audit trail would have more defensibility in case of accusations of fraud than the same signature captured through insecure methods.
The short answer is yes!
The Personal Information Protection and Electronic Documents Act (PIPEDA) was passed in 2000 and defines an electronic signature as “a signature that consists of one or more letters, characters, numbers or other symbols in digital form incorporated in, attached to or associated with an electronic document.”, and grants them the same status as traditional pen and paper signatures.
Effectively any electronic representation of an intent to sign attached to a documents counts under this definition.
Electronic signatures are legally binding wherever they are made as it is the intent that is key – so they would be legal whether the customer signs at home, on their way to your premises or while they are actually there.
What is more important is that the customer is in a fit and able state to be able to understand the provisions of the waiver, that the waiver is clear, that the customer is not put under any duress to sign it, and that they are given enough time to read and understand it.
The answer, just as with paper signatures, is that it depends. If you keep them on a computer open to the public, for example, then there may be little security. However there are many secure solutions available, and if you use a reputable provider then there are a lot of mechanisms they can put in place that in fact make electronic signatures much more secure than paper signatures. For example using cloud solutions such as speedyWaiver, the signature is immediately stored in a highly secure, encrypted digital vault in the cloud where it can be guaranteed there is no tampering with it.
