Identifying Your Need for a Disclaimer
Identify the goods or services you provide. You will need a disclaimer if you provide goods or services, but the requirements of the disclaimer will depend on what you provide. Goods may be tangible (like a hammer) or intangible (like information). You can usually lump "goods and services" together in your disclaimer. Also the good provided may be both tangible and intangible. For example, you might sell paintings. A painting is both a tangible good (the canvas and paint) and an intangible good (the likeness depicted). If you created it, it also represents a service.
Think about the liability you might be subjected to. Whenever you sell goods or services, you open yourself up to legal liability. A person may be injured by your product, or they may want a refund because the product does not work as advertised. If your business offers an opportunity to participate in an activity or to use equipment, such as a tour group or a gym, you will definitely want a disclaimer to avoid being held liable in the case of injury. Alternately, someone may rely on information you provide to their detriment. They might then want to turn around and sue you for “causing” their injury. Some people may also claim injury from words alone. If you write about people, those people could claim that you harmed them because the information was false and malicious. Although defamation cases require the false statement to be untruthfully or negligently presented as a statement of fact, you don't want to give anyone even the possibility of a reason to try to bring a case against you. You should also write a disclaimer if you run a social media page or website where others can leave comments, so that you cannot be held responsible for someone else's words.
Identify the rights you want to protect. Legal disclaimers also protect your legal rights from infringement by other people. Intangible property, such as intellectual property, is often vulnerable to infringement. If your intellectual property includes something such as a system or a method of doing something, you should file for a patent if possible. A trademark will protect words, phrases, symbols, and designs that identify your goods or services, such as your business's logo or signature phrase. If you write, or create images or music, then you will want to assert your rights to that intellectual property. Although your copyright exists from the moment you create your intellectual property, you still want to bring that information to the attention of consumers. Registering your work creates a "paper trail" so that it is easier to prove that your property is yours.
Understand the limitations of legal disclaimers. Before drafting, you should be aware that a legal disclaimer cannot completely insulate you from liability. For example, you may try to disclaim liability for any injuries caused by your negligence, but that disclaimer will often be legally ineffective. Nevertheless, to protect yourself as much as possible you should still write a broad disclaimer. A customer reading a disclaimer may assume that he cannot sue you and therefore not pursue a case.
Writing the Disclaimer
Limit liability for tangible goods. Legal disclaimers should always be written with possible lawsuits in mind. This will allow you to consider the discrete terms of your disclaimer. In your disclaimer, cover any and all liabilities for the product or service that you provide. You should warn consumers of any dangers or hazards posed by your product. You should list specific risks while at the same time acknowledging that the list is not exhaustive. For example, you could write, “NOTICE OF RISK. This product [or service] can at times involve substantial risk of injury, property damage, and other dangers. Dangers peculiar to such activities include, but are not limited to, [list the dangers].” You may want to limit the time period in which someone can return a product or seek a refund to avoid being held liable, for example, for normal wear-and-tear to the item. Be as specific as possible. For example, you might state, “We do not accept returns or exchanges after 30 days unless the item you purchased is defective. If you received a defective item, please contact us at [inset contact information] with details of the defect. You can send the item you consider defective to: [insert address].”
Limit liability for intangible property. If you provide an intangible good, such as information, then you will want to limit your liability for causing offense or damage. However, in general, you cannot limit your liability if you willfully and intentionally provide false statements of fact. (Exceptions may be made in the case of parody and satire.) You can attempt to protect yourself from liability for defamation by stating, “The information provided herein is the author’s opinion and provided for entertainment purposes only.” The key to protecting yourself is to make the reader aware that the post is opinion, not provable fact. If you are providing information, you might want to include a disclaimer as to its accuracy. Here is a disclaimer from the U.S. Department of the Interior: "While the Department of the Interior strives to make the information on this website as timely and accurate as possible, the department makes no claims, promises, or guarantees about the accuracy, completeness, or adequacy of the contents of this site, and expressly disclaims liability for errors and omissions in the contents of this site." You may also want to warn others against relying on the information. If you publish information about health and medicine, for example, you may want to include a long disclaimer, stating that you are not providing medical advice and encouraging readers to seek professional medical assistance.
Limit liability for services. If your business provides a service, activity, or opportunity to use products or equipment, you will want to protect yourself against being held liable for your customers' use of those things. For example, if you own a gym, you would include in your disclaimer language that the customer acknowledges there are certain risks inherent in using exercise equipment and that the customer assumes all responsibility for her use of the equipment. However, you should note that a disclaimer is not likely to protect you from liability if the injury is caused to your own negligence or your failure to maintain your equipment properly.
Protect your rights. Just as you want to limit your potential exposure to lawsuits, you want to protect your rights in your product and warn others against infringement. For example, if you provide original content created by you, you might want to state: "All content is subject to copyright and may not be reproduced in any form without express written consent of the author." You should note that copyright in the US is a complex legal concept and is not unlimited. For example, the "fair use" doctrine allows others to use your content in certain circumstances and under certain conditions.]
Limit your responsibility for third parties. This is especially important if your business displays advertising, uses outside vendors, or has a website or social media page that is open to public comment. For example, if you run a wedding planning business, you could include in your disclaimer that you cannot be held responsible for the failure of contractors (decorators, musicians, etc.) to perform their duties. Your liability disclaimer can extend to include third parties such as subcontractors, if you desire.
Include terms and conditions and a privacy statement. Terms and conditions spell out the rights and responsibilities of you, the business, and your customer. Your disclaimer can then exempt you from responsibility if the customer does not abide by the terms and conditions. A privacy policy describes how your business will gather and use customer information. You can find a sample template for a privacy policy at the Better Business Bureau website. For example, if you sell computers, you could include in your terms and conditions that you are not responsible for damage to the computer if the customer does not use it appropriately. If you own a coffee shop with wi-fi, you could include that you do not collect personal information over wi-fi, but that others could possibly do so. By agreeing to those terms and conditions, the customer agrees to be responsible for any information sharing if she uses your wi-fi.
Include your contact information. Provide as many different ways of contacting you as possible, unless you feel uncomfortable providing personal information. At a minimum, you should provide an email address. Contact information also helps generate business. If someone wants to license your image, song, poetry, or essay, then providing contact information helps facilitate that. Include language about requesting permission to use material: “The contents of all material available on this website are copyrighted unless otherwise indicated. All rights are reserved and content may not be reproduced, downloaded, disseminated, published, or transferred in any form or by any means, except with the prior written permission of [insert your name]. Requests for permission to reuse copyrighted content should be submitted to [your address].”
Make customers aware of your disclaimer. You should place the disclaimer in a place where it will be visible to the public. If you are using a risk disclaimer, then it must be highly visible. Use boldface so that it is conspicuous. It is extremely important to document that your customers have seen and acknowledged the disclaimer. The easiest way to do that is to ask them to sign an acknowledgement (or click through, if you are online). Cover all of your bases. Have your legal disclaimer on any paperwork that your customer might come across to guarantee that they see it.
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