The Small Print Project                            

A collaborative document of experiences with agreements in the digital age.

October 18, 2006

Waiver of the Week

Posted to EULA of the Week,waivers by Andy Sternberg




Thanks for taking interest in the Small Print Project. We’re off to a great start as many e-mails and forms have been streaming in!

The inaugural ‘EULA of the Week’ comes from the RockQuest Climbing Center in Cincinnati, Ohio. “Not just a Rock Gym,” the site advertises — according to their waiver (PDF) (available via a prominent link at the bottom left of the home page), they’ll laugh when you fall and laugh harder should you dare blame anybody (or thing) except your own stupid self.

The real kicker comes near the bottom of the form — and correct me if you’ve come across this before. After promising not to sue RockQuest or its employees and volunteers, you guarantee to refund their attorney’s fees should any be incurred as a result of your participation on RockQuest’s ever-unpredictable indoor rock-climbing walls.

The nature of a ‘EULA’ and similar agreements/passive consent, etc and the surreptitious disclaimers within are not unique to digital products & services. As one reader noted, it goes all the way back to carny tickets if not further. Keep ‘em coming — submit via:e-mail | anon. form. More examples here.

* Comments(3)

  • Matt

    That’s common. If you promise not to sue them, then sue them anyway, they want to recover their costs. Not the most egregious thing you’ll ever find in an agreement like this.

  • http://samleung.ca Sam Leung

    Hi, I like the initiatives you guys have taken on unfair contract conditions embedded in small prints. In the classic tort case of Crocker v. Sundance Northwest Resorts, [1988] 1 S.C.R. 1886 (SCC). William Crocker was drunk out of his skull when he signed a waiver agreeing to free Sundance resort of all liabilities in his participation in a Snow-Tubing contest. The wavier basically said he cannot sue if injured. Crocker broke his neck on the slopes and sued. The judge decreed that because the Crocker did not understand that he was signing away his legal rights, the contract cannot be enforced.
    The trial judge set out in his ratio that if a contract’s condition is unusual or require extraneous obligations on a participant, the drafter of the contract must specifically bring that to the signer’s attention. If it is conceivable that the signer did not understand the onus of the contract, or have signed the contract in haste, the signer is cannot be held to the terms. This is especially applicable if the unusual clauses in question servers to benefit the drafter of the contract. You might want to Google the full story.
    Anyways, I think this Canadian precedence might help your cause… but it’s Canada so…. Back to studying.

  • Diane Lipson

    Keep up the good work! This site is a much needed antidote to the corporate fine print shell game.
    Having said that, I would like to point out that Rockquest does not seem to be in the wrong there. It is so easy to sue someone else for your own stupidity these days that lawyers and insurance companies have sucked all the fun out of the universe. If your going to rock climb, it is going to entail a certain amount of risk. If you screw up and fall, or are careless and fall on someone else, RockQuest should not be held accountable in any way. This line of thinking has robbed me of all skycar rides, closed the boat and auto rides at Disneyland – not to mention thr mule rides six months before I was tall enough to ride them. And it is this casually and greedy litigious behavior that started and propeled this legal disclaimer trend that the corporations are so greedily exploiting. We want to blame our politicians for everything too, but we keep electing them.