Adv Louis Nel Business Review Advice: What should be addressed in an indemnity? (part 2)
As discussed in my first insert, this document can be called by various names, but given its scope, I suggest referring to it as an 'Indemnity, Waiver/Release from Liability, and Hold Harmless Agreement' (hereinafter, for simplicity, I will refer to it as 'the indemnity').
When preparing your indemnity, keep in mind the 'plain language' provisions of the Consumer Protection Act, Act # 68 of 2008 ('the CPA'). It is imperative to avoid ambiguity – more about that will be discussed later.
To begin with, the indemnity should contain a clause stating that the signatory acknowledges the content, has read it, and agrees to be bound by it.
Include a link to your business terms and conditions ('T&C').
Clearly state the scope of the indemnity, covering your operations, premises, transport, and activities, all of which are undertaken at the participant's own risk.
Address the range of risks, such as wildlife encounters, unfenced pools, and insect-related concerns. Consider that your clients might be foreigners who may not be familiar with the local environmental factors, like the severity of the sun and insects. You may want to refer to information available on your website and in your brochures.
Specify compliance with instructions from management, game guides, drivers, and signage.
Welcome and encourage questions and queries, and consider creating a FAQ section on your website to address common concerns.
Make signature of the document a prerequisite for the client, visitor, and/or the guardian of minors.
If the party providing the indemnity has any doubts about their physical and/or mental condition before participating in any of the activities covered by the indemnity, they should consult a medical practitioner before signing the document. This should also extend to include considerations for medication and physical challenges.
Given the comprehensive nature of the indemnity, participants should be advised to obtain adequate and ideally comprehensive insurance covering all aspects of the indemnity – this can be included as a clause in the T&C.
Cancellation of activities for any reason and force majeure events should be addressed in the T&C.
Include medical care administered by the supplier in the release, ensuring it does not amount to an admission of liability or waiver of rights on the part of the supplier.
Clearly define the extent of the indemnity and what is held harmless and indemnified, stating that all claims are waived.
Specify the applicable law, jurisdiction, and domicilium.
The next insert will focus on the role of the CPA.
© ADV LOUIS NEL
Louis-THE-lawyer
July 24, 2023
DISCLAIMER - Each case depends on its own facts & merits - the above does not constitute advice - independent advice should be obtained in all instances.
