Disclaimers! And How to Write Them

29th Mar 2012
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Lawyers at VakilSearch show you the way.

Every web based business today has to think very carefully about the disclaimers it has to protect itself against cases of liability.

A disclaimer, as the name suggests, helps you fight against any claim against your Company.

Most Companies build disclaimers into their terms of service, and this is absolutely fine, but remember that your e-mails, your employee e-mails, presentations, sales material and practically any assertion you make should come with a strong “but I am not liable clause”

But are these clauses even legal?

In law, a test of reasonableness is followed, which means that if a clause is reasonable, then it will certainly protect you. If you say that you can get away with taking a customer’s money and fleeing, that is not so much a disclaimer as it is an attempt to commit theft.

So make sure that your Disclaimer is sensitive not just to your needs and protects your business, but does not strike a person reading it as being extremely unfair.

When you write your disclaimer, sit back for a moment and think- if I were the consumer, how unacceptable would I find this?

Naturally, as a consumer, you are going to find any disclaimer unreasonable, but if your Disclaimer looks outrageous, you have a problem.

Use them as a shield and not as a sword

Given the sorry state of our Courts, you are probably never going to take someone to Court. But in case you are taken to Court, draft your Disclaimer in such a way that the judge is able to see your position too. As they say in law, use these disclaimers as a shield and not as a sword.

Visibility is key

Remember the Insurance Ads – “Insurance is the subject matter of….” and the rest was always swallowed. Don’t let that happen to your Disclaimer.

Make sure your clients read it, and put it in a position where they can see it. Having a simple tick as a pre-condition to use the software may seem great to you, but is not really going to hold much water in a Court of law.

You can follow the middle ground of not making it too conspicuous, and at the same time not so discreet. The whole point of this is to be able to say “I told you so”.

How long should your Disclaimer be?

A disclaimer which is attached to the body of an email should be no longer than 50-100 words, at most. The disclaimer which is going into your presentations and dissertations can be upto 250 words. But creating a disclaimer of more than 250 words means that the point of having a disclaimer is lost – it practically becomes a Terms of Service.

And ask yourself one more thing – what is the longest Disclaimer you have read? If it is so long that it becomes practically impossible to read, that will go against you as well.

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