Product-Release of Liability form

[rocky79]

Hello,

My business is engaged in selling a switch product meant for general application. I was approached by a contractor that wants to use this product in home application.
Before selling this product to the contractor I thought about having him sign a release of liability form below. Can you please comment if this provide enough legal protection from having the home owner or contractor come back for whatever reason to sue my business? Thank you in advance.
Here is the form.

LIABILITY RELEASE AND EXPRESS ASSUMPTION OF RISK

This AGREEMENT is a release of the recipient’s rights to sue for injuries or death resulting from the purchased switch device and accessories (as listed on sales receipt) received from (website name) ( business name). The RECIPIENT (PURCHASER) expressly assumes all risks related in any way to the use or appropriateness of this device .

RECIPIENT acknowledges upon receipt of said device will immediately verify that the device is in good working condition and that he/ she will examined it to inspect its condition and identify any defects before putting device in use.
RECIPIENT also understands that (website name) ( business name), and its employees, owners, officers, or agents (hereinafter “Released Parties”), shall not be held liable or responsible in any way for injury, death, or other damages to the RECIPIENT or his/her customers, family,heirs, or assigns which may occur as a result of the sold, donated, or modified device, or as a result of product defect, wear and tear, or the negligence of any party, including the Released Parties, whether passive or active.

BY CHECKING "I HAVE READ THE LIABILITY POLICY AND AGREE TO IT",
I ACKNOWLEDGE THAT I HAVE CAREFULLY READ AND UNDERSTAND THE ABOVE AGREEMENT. I EXEMPT AND RELEASE (website name) ( business name), AND ALL RELATED ENTITIES AS DEFINED ABOVE, FROM ALL LIABILITY OR RESPONSIBILITY WHATSOEVER FOR PERSONAL INJURY, PROPERTY DAMAGE, OR WRONGFUL DEATH AS A RESULT OF ACCEPTING AND RECEIVING DONATED, DISTRIBUTED, OR REPAIRED DEVICE, HOWEVER CAUSED, INCLUDING, BUT NOT LIMITED TO PRODUCT LIABILITY OR NEGLIGENCE OF THE RELEASED PARTIES, WHETHER PASSIVE OR ACTIVE.


Name__________________________________

Business name__________________________

Signature1_______________________________

Signature2_______________________________

 

[Zigner]

No waiver can prevent you from being sued. I would suggest that you run this by your attorney, not an internet forum.

 

[OHRoadwarrior]

The first thing I would do is see if you can get it UL certified. If you can, getting liability insurance should not be a problem.

 

[PaulMass]

A waiver signed by the contractor will not help you when the end user is injured.

See the Restatement (2nd) of Torts:

Sec. 402 A. Special Liability of Seller of Product for Physical Harm to User
or Consumer
(1) One who sells any product in a defective condition unreasonably dangerous to the user or consumer or to his property is subject to liability for physical harm thereby caused to the ultimate user or consumer, or to his property, if
(a) the seller is engaged in the business of selling such a product, and
(b) it is expected to and does reach the user or consumer without substantial change in the condition in which it is sold.
(2) The rule stated in subsection (1) applies although
(a) the seller has exercised all possible care in the preparation and sale of his product, and
(b) the user or consumer has not bought the product from or entered into any contractual relation with the seller

If there's a fire, they WILL come after you, and you'll need to defend yourself against the lawsuit. If you have product liability insurance, the insurance company will defend you.

If you have the contractor indemnify you, s/he will be responsible to defend you until his/her money runs out. Insurance companies have more money.

 

[rocky79]

A waiver signed by the contractor will not help you when the end user is injured.

See the Restatement (2nd) of Torts:


If there's a fire, they WILL come after you, and you'll need to defend yourself against the lawsuit. If you have product liability insurance, the insurance company will defend you.

If you have the contractor indemnify you, s/he will be responsible to defend you until his/her money runs out. Insurance companies have more money.

Thank you for the very helpful advice.
Considering that UL certification is not possible at this stage. Would it help if I have the house owner also sign this liability form?
Thanks again!

 

[OHRoadwarrior]

Are a few switches worth tens of thousands in lawyer fees?

Thank you for the very helpful advice.
Considering that UL certification is not possible at this stage. Would it help if I have the house owner also sign this liability form?
Thanks again!

 

[rocky79]

Are a few switches worth tens of thousands in lawyer fees?

No they're not however I don't know how much the contractor is charging the owner for the overall installation plus the cost of the switches ( <$6K)
However I am more worried in case of fire which is highly unlikely, unless the contractor made a mistake and tried to blame me.

Thanks again

 

[OHRoadwarrior]

You are on the losing end of a shady deal that might cost someone their life. Get them UL certified and then worry about insurance and distribution. If someone dies in a fire, not only will you likely lose everything you own, you might kill someone or more than one person. What is that worth to you? To me it was worth driving a car into a concrete wall on the interstate about 32 years ago and worth it to me to ride out a straight-on tractor trailer crash into a concrete wall on the interstate about 4 years ago. I might be totally disabled, but I know I made the right choices in both of those accidents.

No they're not however I don't know how much the contractor is charging the owner for the overall installation plus the cost of the switches ( <$6K)

 

[rocky79]

You are on the losing end of a shady deal that might cost someone their life. Get them UL certified and then worry about insurance and distribution. If someone dies in a fire, not only will you likely lose everything you own, you might kill someone or more than one person. What is that worth to you? To me it was worth driving a car into a concrete wall on the interstate about 32 years ago and worth it to me to ride out a straight-on tractor trailer crash into a concrete wall on the interstate about 4 years ago. I might be totally disabled, but I know I made the right choices in both of those accidents.

I totally understand, UL certification is the way to go, however why you think it's a shady deal?
I made it clear to the contractor that this switch is not UL certified. It's meant for general purpose application.
The contractor already paid me to do some modification to fit his needs. I know the switch is safe however I am taking into account the worst scenario.
If I made the owner and contractor sign this form to use the switch at their own risk, will that help?

 

[quincy]

... If I made the owner and contractor sign this form to use the switch at their own risk, will that help?

No. No form is going to protect you from a lawsuit if someone gets injured or killed as a result of using your product. It is up to you to make a safe product that will pass inspection.

The need in the US for UL testing is different than it is in other countries. You did not mention a state name. Are you in the US, rocky79?

 

[rocky79]

No. No form is going to protect you from a lawsuit if someone gets injured or killed as a result of using your product. It is up to you to make a safe product that will pass inspection.

The need in the US for UL testing is different than it is in other countries. You did not mention a state name. Are you in the US, rocky79?

Hello Quincy,

Thank you for your reply. Yes, we're in California.
As a manufacturer we are not advertising the product for home use however the contractor wants to use it for a house installation.
I know the product is safe and even if it fails, the fail mode is local. We still like to have a form signed to let the owner/contractor know that if they want to use it, they can do so at their own risk.

 

[PaulMass]

Thank you for the very helpful advice.
Considering that UL certification is not possible at this stage. Would it help if I have the house owner also sign this liability form?
Thanks again!

That would help if the house owner is injured, but not his family or his guests.

I believe your item is a switch, or something electrical. It doesn't really matter for this example.

There's a fire in a ceiling fan at the house, and a neighbor rushes in to help and gets badly burned. Neighbor's wife sees an ad that reads "Better Call Saul", and does. Saul files a lawsuit naming the homeowner, the contractor, the ceiling fan manufacturer retailer, distributor, and manufacturer, the wiring retailer, distributor, and manufacturer, the switch retailer, distributor, and manufacturer (you), the circuit breaker retailer, distributor, and manufacturer, the electrical panel retailer, distributor, and manufacturer, the electric meter retailer, distributor, and manufacturer, and the electric utility.

Saul doesn't know who's part failed, so he's covering his bases.

Next, you are notified that the plaintiff plans to do destructive testing on the switch, and offers to let you participate.

Your move.

 

[rocky79]

That would help if the house owner is injured, but not his family or his guests.

I believe your item is a switch, or something electrical. It doesn't really matter for this example.

There's a fire in a ceiling fan at the house, and a neighbor rushes in to help and gets badly burned. Neighbor's wife sees an ad that reads "Better Call Saul", and does. Saul files a lawsuit naming the homeowner, the contractor, the ceiling fan manufacturer retailer, distributor, and manufacturer, the wiring retailer, distributor, and manufacturer, the switch retailer, distributor, and manufacturer (you), the circuit breaker retailer, distributor, and manufacturer, the electrical panel retailer, distributor, and manufacturer, the electric meter retailer, distributor, and manufacturer, and the electric utility.

Saul doesn't know who's part failed, so he's covering his bases.

Next, you are notified that the plaintiff plans to do destructive testing on the switch, and offers to let you participate.

Your move.

Not sure if you saw my earlier post:
As a manufacturer we are not advertising the product for home use however the contractor still wants to use it for a house installation.
I know the product is safe, if it fails,it will either fail open or closed and the switch is flame resistant. The owner/contractor know that if they want to use it, they can do so at their own risk.

 

[Zigner]

Not sure if you saw my earlier post:
As a manufacturer we are not advertising the product for home use however the contractor wants to use it for a house installation.
I know the product is safe and even if it fails, the fail mode is local, flame resistant device. The owner/contractor know that if they want to use it, they can do so at their own risk.

Are you kidding? You don't think that you'd end up being sued? Really?

I thought you said you are in California...

 

[rocky79]

Are you kidding? You don't think that you'd end up being sued? Really?

I thought you said you are in California...

Did you make this up?
try to say something helpful rather than pure sarcasm.
I didn't say I won't be sued. I can't prevent people from suing but what I am trying to have is some legal protection.