Digital Waivers, the ESIGN Act and UETA Compliance

March 29, 2017
This is a PSA for all gym owners out there who are relying on electronic waivers and documents to run their businesses. We want you to understand the law and the rights of your customers, and ensure you’re not sitting on a bunch of waivers that will not hold up in court.

Is your current online digital waiver and document system ESIGN and UETA compliant? If your provider does not outright state that they are - and provide proof compliant and give evidence with these important laws, you should do yourself a favor and ask them as ASAP.What does the ESIGN and UETA Acts State?These laws set out to declare that a document or signature CANNOT be denied legal binding effect just because it is in electronic form.However, in order to achieve this equal legal standing, almost all documents signed between parties in the United States must meet the following requirements before they can be deemed ‘legal and binding’.What does the ESIGN and UETA Acts require?In order for an electronic document to be considered legally binding, it must hit four marks. We will go over each point below.

  1. Intent to sign.
  2. Proper record retention and access.
  3. Association of signature with the record.
  4. Consent to do business electronically.

Intent To SignSimilar to traditional signatures, electronic signatures are only valid if there’s an intent to sign by the signer. Generally most online waiver/document solutions will hit this mark, as signing with a finger or a mouse and clicking submit marks intent to sign (two step verification process).Record Retention and AccessThis is a big one. The law requires that all electronic signatures and transactions be capable of retention and accurate reproduction by all parties.This means that your clients must have access to pull an accurate reproduction of their signed document at any time they want.It also means that the actual document they sign MUST remain untouched and unchanged, even if you have since changed the versions of it.If your system does not keep proper historical versions of signed waivers - it could present massive liability on your end. To test to make sure your waivers are properly retained, perform the following steps:

  • Find a previously signed waiver on your system.
  • Note the content of the waiver.
  • Change your waiver trivially.
  • Re-check the waiver you just looked at. It should not reflect the change you just made.

If it does all your waivers are invalid.Association of a Signature with the RecordThe ESIGN Act and UETA requires that the system capturing the electronic document must keep an associated record that reflects the process by which the signature was created.One signature cannot be used to “sign” future agreements as well. Each agreement should be associated to a unique and tracked signature.This can include, but is not limited to things like the signature itself, any data collected around the signing of the signature, times, dates, ip addresses and the like.Your system should be able to reproduce, at any time, the signature as it was signed, along with all data which proves or substantiates the signing - and have it associated with the document signed.Consent to do Business ElectronicallyMany systems we scanned fail this test.In order to qualify as a legally binding electronic document, the parties involved must consent to do business electronically. Electronic records may be used in transactions with consumers only when the consumer has:

  • Received UETA Consumer Consent Disclosures
  • Consented to use electronic records for the transaction
  • Has not withdrawn such consent

In order to hit these three marks, your system must ask for electronic consent (which most systems do). But it must also allow them the ability to withdraw consent and give them access to their Consumer Consent disclosures.Make Sure You Ensure Your ComplianceRemember, ultimately it is your responsibility to ensure your agreements and waivers are compliant with laws in your area.As a system, PushPress has always been concerned about their clients, and we pour a lot of time and energy into making sure we are setting them up for success. Our clients an rest assured we’ve paid attention to the emerging landscape of digital signatures, and have put energy into compliance on their behalf.We hope this article gets shared far and wide in the community - the more gym owners understand about some of these details, the better equipped they’ll be to thrive in business!

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