Don't know what a disclaimer is and how to draft one? This blog will provide you with details about what needs to be covered in a disclaimer and other related important information

Overview

A disclaimer is normally any announcement supposed to specify or limitation the scope of rights and responsibilities that can be exercised and enforced via way of means of events in a legally-identified relationship.

It contain privately arranged and mutually agreed on terms and conditions in a contract, or it could be some warning(s) or expectation(s) for the general public (or any other class of people) for fulfilling some duty of care needed for preventing the unreasonable risk of harm or injury. A disclaimer could limit exposure to damages when an injury or harm has happened already. 

Several documents fair use disclaimer India, and these are referred to as document disclaimers. Generally, these disclaimers state that the document’s contents are private and highly confidential.

There is a variation in disclaimers based on uniformity. Disclaimers could differ based on the context and involved parties, though some might strictly follow the uniform and established formalities that will never or rarely be changed, other than by official authority. Certain formal disclaimers are needed for qualification for protection under a safe harbour, industry regulation, and other times when the exact wording of a specific document or clause might be dispositive if a legal dispute arises. 

Even if a legally binding document has a disclaimer, the disclaimer’s terms don’t need to be enforced or even recognised if a legal dispute arises. Other legal considerations could render that disclaimer void in part or whole. 

According to law, a disclaimer is a statement that denies responsibility intended to ward off civil liability that could arise due to specific omissions or acts. Disclaimers are often framed as a safeguard from the effects of the torts of negligence and the liability of occupiers towards visitors. The Courts might not consider the disclaimer if, in that specific situation, the law allows exclusion of liability and if the acts or omissions complained of lie within the disclaimer’s wording.

A disclaimer could be a term of a contract drawn up between two parties – one making the disclaimer and the second person being the one who, according to the disclaimer, cannot sue. An example of such a disclaimer is the ‘terms and conditions attached with software use that shows up at the time of the first installation of software.’ This will generally contain the term(s) absolving of liability for damage that the software might cause to the hardware and software of the user. When a user clicks the ‘I Agree’ button, the user accepts the disclaimer as part of a contract between the software company and self.

What Should be Specified in a Disclaimer?

Here are some points for which you need to put together for your information:

• Identify the services or goods provided by you. The goods you provide can be tangible, intangibles, or you might be providing both types of goods
• Identify the liability to which you are/ can be subjected
• Identify all those rights that you need to protect
• Know what limitations are attached with legal disclaimers.

With the above information in hand, check out the list of what you need to cover in a disclaimer to protect yourself from being sued for that which was not your fault.  

Limit Your Liability for Both Intangible and Tangible Goods and Services

To take an example, in case you are selling cricket balls, you need to draw up an agreement that explicitly states that the customer assumes all responsibility for the use of the cricket ball.

Protect Your Rights

It is required that the disclaimer protects the provider’s rights in the product and gives out a warning to others against any sort of violation of those rights. Generally, a clause will be part of the disclaimer. A disclaimer of liability for a website providing information can be something like the following:

‘The material and information contained on this website are for general information purposes only. You should not depend upon the information or the material on the website as a basis for making legal, business, or any other decisions.’

Limit Your Responsibility for Third Parties

Limiting third party responsibility from falling on you is extremely important in cases such as when the business uses the outside vendors, or the business has a social media page/ website that welcomes comments from the public. For example, for an event management company, the disclaimer must incorporate that the business holds no responsibility disclaimer for the failure of contractors in fulfilling their responsibilities.

Include Both Privacy Policy and Terms and Conditions Statements

A Terms and Conditions section clearly states your rights and responsibilities and those of the business and the customer. You will be exempt from liability by the disclaimer if the customer has not followed the terms and conditions. Consider the example of a company selling magnifying glasses. Such a company could add in the terms and conditions that the company holds no responsibility for its improper usage by the customer. 

Contact Information

Even if it is just an e-mail address, contact information is key for enabling customers to be in touch with you. This will help in queries/ complaint resolution and even help to generate business. It is better to be accessible to both customers and potential customers. 

Easily Visible Disclaimer

Ensure that the disclaimer is so placed that it catches the eye, rather than people having to hunt for it. A good idea is to also put it in capital letters and make it boldface. It could also prove important that the customer views expressed disclaimer statement and acknowledges the disclaimer and that this acknowledgement is documented, just like how software companies do it. 

Conclusion

 You should look at a disclaimer as a set of statements that covers the complete liability for what you have on offer, be it a service or a product, or both. It should also inform the customers regarding any hazard or risk that may be associated with the product, and it should readily catch the eye.  If you have any queries reach out to Vakilsearch now.

Frequently Asked Questions:

Read More

• What Is a Disclaimer & How to Write It?
• A Guide to Write a Legal Disclaimer
• Sensitive Information Disclaimer