What is a disclaimer?
Disclaimers have become a standard feature in contracts and even simple everyday transactions. They generally refer to statements that are intended to limit (or exclude completely) liability in the event of loss or damage.
Disclaimers are everywhere – on fast food menus, coffee cups, websites, emails, receipts, medicines and standard form contracts. They operate for the benefit of the party who provides services or offers goods to others.
Are they enforceable or not?
Generally, disclaimers will only be binding if they are fair, not unreasonable and users have the benefit of reviewing and agreeing to them before they acquire the goods/services.
As with any contract, a party will only be bound by it if they were given notice of its terms at time the agreement is made. Notice can be in two ways – in writing and with confirmation of acceptance (eg. ‘I Agree’ button) or by doing all that’s reasonably necessary to bring it to the party’s attention (eg. ‘Click here for our T’s & C’s’ or ‘Sales subject to our T’s & C’s on our website’).
The ABC and D’s of Disclaimers
Availability – Disclaimers should be available for viewing before the customer agrees to proceed with acquiring goods / services. Notice can be made through an asterisk and a note referring to the transaction being subject to terms and conditions, provided they can be found.
Be Fair – There’s a grey area when it comes to ‘take-it-or-leave-it’ disclaimers – what’s unreasonable will depend on the circumstances.
Clarity – The terms of a disclaimer should be clear. Don’t bury it in lots of text or in multiple hyperlinks, and don’t write it in a teeny tiny font. That’s not to say that you need to write it so Mr McGoo can read it – the disclaimer just needs to be visible, clear and in a reasonable size font relative to the other text.
Defamation – and other breaches of legislation can’t be swept away or fixed with a disclaimer – the disclaimer should go no further than to protect the legitimate and lawful interests of the provider of the goods/services.