Disclaimers

What constitutes a Disclaimer? 

You may think that disclaimers are quite simple to draftbut in reality, there’s a bit to consider in developing the right set of disclaimers for your business, and as they say, “the devil is in the detail”.   

The fundamental purpose of a disclaimer is to limit an aspect of a contract or legal rights or liabilities that a consumer, client or customer might otherwise have unless you specifically disclaim out of it. They also then can’t say “oh I wasn’t made aware of that”, if it was effectively “in flashing lights” being heavily brought to their attention.  

When you think of a disclaimer, you might picture those short sentences at the bottom of ads on television saying “terms and conditions apply” or “our services do not constitute professional advice” or at the start of an informative YouTube video, for example addressing a health issue. 

In a car park, you would have seen examples like “We are not responsible for any stolen property from parked cars.”

There are thousands of examples.

These examples of disclaimers are typically short due to the medium they’re displayed on and the short window provided to display them. 

However, in a document like your business’ Terms and Conditions or Client Engagement Agreement, which is where you would commonly include disclaimers, the disclaimers would need to need to address all the areas of risk of your business and limit your business’ liability as much as possible. 

Disclaimers could also 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, disclaimer will not be effective if it can be proved that a representation was in fact made. 

Consider the areas of risk of your business

When drafting disclaimers, you need to consider all the areas of risk for your business that the disclaimers should cover.  

Is your business part of an industry that attracts greater risk that would require more extensive disclaimers?  

See the below examples of businesses that deal in a higher degree of risk that would need more in-depth disclaimers 

1. Health practitioners

2. Alternative health practitioners, such as acupuncturists, naturopaths, herbalists;

3. Adventure sports business; or

4. Money or Business coaches, financial advisors.

However, all businesses deal in at least some element of risk regardless of the type of business they are. Therefore, irrespective of which industry your business is in, you really need comprehensive disclaimers to protect your business and limit liability as much as possible.  

It may well be that a few paragraphs are required to disclaim against the main areas of legal risks.  

Again, if you haven’t made specific reference to them, made them clear in black-and-white, and bringing them to the attention of the consumer/customer/client prior to purchase, you can’t enforce a legal right you don’t have.

Examples of Disclaimers

Disclaimers are best illustrated by examples. 

Some common examples of disclaimer templates are as follows, however we strongly recommend having your disclaimers reviewed by a Lawyer to make sure they’re tailored for your business. 

– We do not make any terms, guarantees, warranties, representations or conditions whatsoever regarding our products and services other than provided for pursuant to this Agreement. 

– We cannot and do not make any guarantees about your ability to obtain results in connection with our products and services. 

– None of the information provided to you by us in the supply or in connection with our services, purports to offer any legal, financial, business, information technology or other professional advice. 

– We hereby expressly disclaim any claims arising from any representations made, whether express or implied, or reliance upon any representations made in relation to our recommendations, or information supplied to you.  

– Any testimonials and examples of our products and services, wherever published (online or in print) are not to be taken as a guarantee that you will achieve the same or similar results with our products.  

– Results may vary from one business or customer to another, much will depend on various circumstances like the particular industry that you are in, the timing of the market, the specific product or service offering that you make and applicable pricing.  

As you can see from the above examples, disclaimers are a really great way of bringing to the attention of the client 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.  

Disclaimers in advertising

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 [2013] 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 [2004] 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 [2001] 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

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. 

Disclaimers don’t exclude you from all types of liability

You should be aware that you can’t disclaim out of everything.  

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.  

That is, you can’t “contract out of” some legal obligations that are enshrined in the law that prohibits you from doing so. E.g. you can’t contract out of your own negligence. 

Australian Consumer Law 

Customers possess certain rights under the Australian Consumer Law (ACL) and goods and services are accompanied by implied consumer guarantees that cannot be excluded by disclaimers or any other means.  

Some consumer guarantees that apply to products are that the product is of acceptable quality, is safe, with no faults, and is fit for purpose. Guarantees that apply to services are that the service is provided with acceptable care and skill or technical knowledge is fit for the purpose intended, and is delivered in a reasonable time. 

If your product or service breaches any of the consumer guarantees the customer is entitled to have the product refunded, repaired replaced or have the service cancelled.  

Businesses who misrepresent consumer guarantee rights, by for example, providing a disclaimer that states that you are not liable to provide a refund for your products or services under any circumstances, run the risk of being taken to Court by the Australian Competition and Consumer Commission and be ordered to pay a hefty penalty.  

This is seen in the case of Australian Competition and Consumer Commission v Bunavit Pty Ltd [2016] FCA 6, where a Harvey Norman franchisee called Bunavit Pty Ltd (Bunavit), was ordered to pay a total of $52,000 in penalties for breaching sections 18 and 29(1)(m) of the ACL by its employees making false or misleading representations about the exclusion of consumer guarantee rights. Some of the representations made were that Bunavit had no obligation to provide a remedy for defective goods which it supplied and that the consumer would need to pursue the manufacturer’s warranty directly with the manufacturer and not through Bunavit 

Negligence 

It’s important to understand that it’s not possible to exclude or limit liability for death or personal injury resulting from negligence of a business. However, regarding any other loss or damage resulting from negligence, such as financial loss or damage to property, liability can be limited in some cases. 

Key Takeaways and Costs

At the end of the day, it’s all about risk management. Reducing it as much as you are legally allowed to, in some cases it might be possible to eliminatit entirely with very careful wording. At best, they may stop a business-ending claim. Worst-case scenario is that you make it very clear with your clients/customers what you’re not responsible for, so it should at least lead to less disputes.  

Our costs for drafting tailored Disclaimers

We can draft Disclaimers for a fixed fee $750 + GST, fully tailored for your business. Your Disclaimers will be drafted by a qualified Australian Lawyer.

We’ll consider the nature of your business and the key areas of risk in order to develop a comprehensive set of disclaimers for your business.  

We’ll make sure that your disclaimers don’t contravene any Law, such as the ACL, as this can be deemed unenforceable and there are penalties for doing so 

By having well-drafted and thorough disclaimers, you ensure that your business is doing all that it can to protect it from any major or common risks and limits your business’ liability to the maximum extent permitted at Law. 

Smart businesses have a number of disclaimers on various legal documents they provide in order to make sure they limit the risk as much as they can.  

Small business owners often forget that the “buck stops with you” and although they often think they are a “protected species”, when it comes to customers or consumers before a Court or Tribunal, it is in fact the opposite.

Contact us today or call 1800 820 083 if you require any assistance with your disclaimer and/or waivers.

(c) Progressive Legal Pty Ltd – All legal rights reserved (2020)