Waivers: Public Policy

(a)Any waiver by a consumer of the provisions of this chapter, any warranty, or the provisions of any statute imposing a duty or obligation upon another, is contrary to public policy and COL10/29/2021 CH. 32 TRADE PRACTICES AND CONSUMER PROTECTION is unenforceable and void; provided, however, that a waiver not related to a warranty or provision of law which imposes a duty or obligation on another and which by statute cannot be waived is valid and enforceable if the person claiming the benefit of the waiver pleads and proves:

(1)The consumer was not in a significantly disparate bargaining position; and

(2)The consumer was represented by legal counsel in seeking or acquiring goods or services, other than the purchase or lease for a consideration paid or to be paid that exceeds One Million Dollars ($1,000,000); and

(3)Prior to paying any consideration whatsoever, the consumer waived all or part of this chapter by an express provision in a written contract signed by both the consumer and the consumer’s attorney or the Attorney General; provided, however, that a business consumer with net assets of Five Million Dollars ($5,000,000) or more according to the most recent financial statement of the business consumer prepared in accordance with generally accepted accounting principles that has knowledge and experience in financial and business matters that enable it to evaluate the merits and risks of a transaction and that it is not in a significantly disparate bargaining position may by written contract prior to payment of any consideration waive the provisions of this chapter without signature of an attorney or the Attorney General.

(4)Any waiver of any express warranty, implied warranty, warranty imposed by statute, common law, or operation of law, or similar provision of law set by statute for the protection of a consumer is subject to the provisions of this chapter.

(5)If any statute provides that a warranty or other provision of law may not be waived, then notwithstanding the provisions of this section the warranty or provision of law may not be waived.

(b)The existence or absence of a disparate bargaining position may not be established as a matter of law solely by evidence of the consumer’s financial position relative to other COL10/29/2021 CH. 32 TRADE PRACTICES AND CONSUMER PROTECTION parties to the contract or by matters contained in a written contract relating to the relative bargaining position of the parties.

(c)An agreement to arbitrate constitutes an important waiver of the right of access to the courts. Therefore, as to any agreement to arbitrate executed after the effective date of this chapter, the agreement to arbitrate any matter arising out of the sale of goods or services for any amount of consideration, or any matter or contingency arising therefrom, shall be treated as a waiver of rights under this chapter, is not binding on any consumer unless there is full compliance both with this section and with this chapter, each party is represented by an attorney, and the agreement to arbitrate is signed by the attorneys representing each of the parties.