What Is a Disclaimer?

The common types

• General information disclaimer. "This content is general in nature and does not constitute professional advice." Used to resist an argument that an advisory duty was assumed.
• Liability limitation. Caps liability at fees paid, or excludes indirect and consequential loss. The workhorse of commercial contracts.
• No-warranty disclaimer. Goods or services supplied "as is", subject to the consumer guarantees.
• Third-party content and links. Disclaiming responsibility for external sites or user-generated content.
• Forward-looking statements. In financial documents and information memoranda, disclaiming forecasts and projections.
• Email footers. Confidentiality and inadvertent-recipient notices — largely a courtesy rather than a legal shield.

What a disclaimer cannot do

1. Exclude consumer guarantees. Section 64 of the Australian Consumer Law voids any term that purports to exclude, restrict or modify guarantees such as acceptable quality and due care and skill.
2. Excuse misleading conduct. Section 18 liability cannot be contracted out of. A disclaimer may occasionally affect whether conduct was misleading in context, but it is not a defence.
3. Survive the unfair contract terms regime. In standard-form small business and consumer contracts, a one-sided exclusion can be declared void — with civil penalties now attached.
4. Bind someone who never saw it. Terms presented after the contract is formed are not incorporated.

What a well-drafted disclaimer does do

• Limits liability for indirect, consequential and economic loss between businesses.
• Caps aggregate liability at a commercially sensible figure — often fees paid in the preceding 12 months.
• Limits liability for non-consumer supplies to resupply or the cost of resupply, as the ACL expressly permits where fair and reasonable.
• Allocates risk for third-party inputs, data and integrations.
• Makes clear which entity is contracting and on what terms.

Drafting rules that make disclaimers stick

• Bring it to attention before contracting — click-to-accept, a signed quote, or terms referenced on the order form.
• Use plain language. Courts read exclusions narrowly against the party relying on them.
• Carve out the ACL expressly, so the clause does not fail as a whole for trying to exclude what cannot be excluded.
• Keep the cap proportionate to the fee. An unreasonably low cap invites an unfair-terms challenge.
• Match it to your insurance — there is no point excluding liability your policy already covers, and no point accepting liability it does not.