A disclaimer is usually any verbal or written statement designed to clearly define or delimit the extent of specific rights and responsibilities that could be exercised and enforced in a legally established relationship. It is essentially a promise by a party to a transaction not to undertake an action which would otherwise be contrary to the objects of the contract.
In the context of online software, this means a commitment not to use copyrighted materials in a way that would infringe on the copyrights of others. In the online world this can mean that the site owner has promised not to post materials that are illegally pirated, etc.
A good disclaimer will take pains to identify all of these things. It will also describe the sorts of activity that would typically constitute infringement of the rights of others. A good disclaimer will also take into account the different legal bases on which liability can be claimed.
This means that it will explain why a disclaimer is required and what sorts of things should be expected of the service provider under the contract. For example, there are a number of things like the intention to publish illegally pirated material, or the sites terms and conditions about giving warranties that things like copyright protection will not be violated.
There are many different kinds of things that can be considered as a reasonable disclaimer, including: express disclaimer, implied warranty of merchantability, and implied warranty of fitness.
There may also be additional provisions in the contract like a limitation of liability. Other kinds of disclaimers are also possible and listed by common law, including: publicity, libel, etc.
A fair use disclaimer lets users know that the site contains copyrighted material that may be used in a number of ways beyond immediate reproduction, such as creating derivative works, reporting or comment about the copyright holder’s works, etc.
This provision is often included in contracts to prevent lawsuits from being brought about by people using materials that are not authorized. A fair use disclaimer may also be included in a website’s contact information, frequently on the home page, or sometimes in the footer of the site.
If you wish to include a disclaimer regarding liability then it will need to be in a separate section of the disclaimer. This section can be included in the body of the document or placed after the copyright notice, such as at the bottom.
It will need to be stated exactly what the user is liable for in the event of a breach of the agreement. This section is very important because it allows the user to make sure they understand what happens if a breach of liability is found.
Some other types of disclaimers that are commonly used are: express warranty, implied warranty, and professional liability. These are usually used in contracts with large companies where damages are often expensive.
They are not used much in contracts with small businesses or individuals’ contracts, although they can be used in contracts with these larger parties to protect the small business owner from an expensive mistake or breach of contract.
A disclaimer regarding performance must be limited to one page and mentioning the name of the performer at the end of the disclaimer, to give the audience an idea of what is being covered.