The fundamental purpose of a disclaimer is to limit an aspect of a contract or legal rights or liabilities.
For instance, a disclaimer could be included in a contract that states that one party to a transaction does not provide any representation or warranty as to the completeness or accuracy of information provided.
However, this disclaimer will not be effective if it can be proved that a representation was in fact made.
A well drafted disclaimer in a business’ terms and conditions will help the business make sure that any legal obligations that they might be implied to have are specifically avoided by the “black and white” wording to say that a customer or consumer will not be able to rely on certain rights that they would otherwise have.
Disclaimers are best illustrated by examples.
Some common examples of disclaimers are as follows:
As you can see from the above examples, disclaimers are a really great way of bringing to the attention of the consumer those things that you specifically are not going to be held liable for, that might otherwise be considered by virtue of the goods or services that you provide.
It should be noted in the disclaimer that nothing in the disclaimer limits or excludes any guarantees, warranties, representations or conditions implied or imposed by law, including the Australian Consumer Law (or any liability under them) which by law may not be limited or excluded.
When advertising a product, disclaimers or qualifications are commonly used to communicate conditions or restricting on the offer of products and services. It was stated in Australian Competition and Consumer Commission v TPG Internet Pty Ltd  HCA 54 that when using disclaimers in advertisements, the following test is applied – what impression is likely to be formed by an ordinary and reasonable consumer after viewing the whole of the advertisement. A disclaimer is only effective if its content forms part of the overall impression or dominant message conveyed to the customer.
It was noted in Medical Benefits Fund of Australia Limited v Cassidy  FCAFC 35 that disclaimers alongside asterisks should be clear and prominent to prevent the advertisement from being likely to mislead or deceive.
It was also stated in Australian Competition & Consumer Commission v Target Australia Pty Ltd  FCA 1326 that disclaimers in advertising should be appropriate to the form of advertising used, such as on radio or television, or in print. For instance, disclaimers in television advertisements should take up a substantial amount of space and time on the screen and be communicated loudly and clearly in voiceovers.
Email disclaimers are a useful tool to mitigate the risk that confidential information may be accidentally forwarded to an unintended 3rd party. The disclaimer acts as a warning to those parties that if they are not the intended recipient, they must take various actions when they receive it, for instance notifying you that they have received it inadvertently, then delete the email immediately and permanently from their system.
Email disclaimers also act to inform the recipient that the email and its contents is protected by copyright and possibly legal professional privilege and confidentiality.
Computer viruses may be spread by email. To limit liability in relation to accidentally sending a virus to another party, it should be included in the disclaimer that use anti-virus software is used, but that it cannot warranted that an email sent will be error or virus free.
Contact us today if you require any assistance with filing your disclaimer and/or waivers.
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