Hold harmless clause

Sample clause

a bouldering session waiver between Granite Loft Climbing and a school group from Marraweena College, both fictional

1. Assumption of Risk. The Participant acknowledges that bouldering at Granite Loft Climbing involves a risk of injury, including falls from height and contact with fixed holds, and takes part voluntarily with that risk in mind. 1.1 The School confirms that every Participant in the Marraweena College group has read this document or had it read to them by a supervising teacher. 2. Hold Harmless. The School and each Participant agree to hold Granite Loft Climbing, its staff and its contractors harmless from any claim for loss, injury or property damage arising out of the Session, other than a claim caused by the negligence of Granite Loft Climbing or by a breach of a consumer guarantee. 2.1 Nothing in clause 2 limits a right that cannot lawfully be excluded, restricted or modified. 3. Supervision. The School remains responsible for supervising Participants away from the climbing floor, including in the change rooms and the car park.

Sample wording, not legal advice.

Variants

What to negotiate

• Whether negligence is carved out

  The party taking on the risk asks that the clause stop at loss it actually caused, so the operator stays answerable for a faulty anchor or an untrained instructor. The operator asks for the widest release it can get. The usual landing point is a clause that covers the ordinary risks of the activity and expressly leaves out loss caused by the operator's own negligence or breach.

• Who else is covered

  An operator wants the release to reach its staff, its contractors and its landlord, because a claim aimed at one instructor reaches the operator in the end anyway. The signing party wants that group closed and named. The compromise is a defined group set out once in the document, rather than an open reference to related entities that nobody can list when a claim arrives.

• Whether defence costs are included

  American drafting joins defend to hold harmless, which turns a passive promise into a duty to fund a defence from the day a claim is served. Australian drafters usually split the two, because funding a defence and paying a judgment are different exposures with different numbers. If defence costs are in scope, say plainly whether the paying party also chooses the lawyers.

The risk of leaving it out

Without it the operator falls back on the general law of negligence and on whatever release and indemnity the document already carries. A participant injured during an ordinary risk of the activity can argue that nobody told them the risk sat with them, and the operator has no signed record that the risk was described, accepted and taken on before the session began.

Hold harmless against indemnity

The two do different work, even though they usually arrive in the same sentence. An indemnity is a promise to pay for a loss, so it creates an obligation the other party can enforce as a debt. A hold harmless promise is defensive: the promising party agrees not to bring the claim at all, which is closer to a release. In a document carrying both, the indemnity moves money and the hold harmless limb closes off a counterclaim. Drafting them as one line is common, and it makes it harder to work out which effect survives if part of the clause fails.

How it is read in Australia

Australian courts read a release against the party relying on it, so a clause meant to cover the operator's own negligence has to say so in clear words rather than by implication. The consumer guarantees in Schedule 2 of the Competition and Consumer Act 2010 sit above the clause for services supplied to a consumer, and a contract term cannot exclude, restrict or modify them. A waiver for a recreational service can go further than one for an ordinary service, but the rules differ by state, so the clause normally names the state whose law applies and keeps a savings sentence for rights that cannot be given up.

Where it sits in a generated document

The document generator writes an agreement as numbered content, so a hold harmless promise arrives as its own numbered clause with sub clauses under it, rather than as a paragraph buried in a schedule. The generated text is written from the description it is given and it never prints citations, so any statute reference in a draft has to be checked against the legislation before the document is used. Where the document ends in a signature block, each party in that block becomes one signer, so a school signing for a whole group produces one signature, not one per participant.

Documents that carry this clause

Liability waiver template written for Australian recreational servicesMost waivers in Australia are copies of American forms and exclude things that cannot be excluded, which makes the whole document weaker. This one names the real risks, takes the acknowledgements one by one, and uses the recreational services exclusion the way the consumer law actually permits, with a guardian block for minors.Equipment hire agreement template with the rates in a scheduleA hire agreement is a price list, an insurance decision and a return date, and the argument is always about the day it came back. This one puts the equipment and rates in a schedule, makes the damage waiver a choice with its price, and defines late return in hours so there is nothing to interpret.Sponsorship agreement template that lists every benefit with a numberSponsorship falls apart in the delivery, when nobody can find the email that said how many banners and which stage. This agreement is the benefits list as a table with quantities and dates, the $18,000 fee in instalments tied to those dates, and the two clauses sponsors care about most: exclusivity, and what happens if the event does not go ahead.

Questions people ask