If you were injured as a result of using a product or your life was otherwise negatively impacted by that product, you were expected to shrug it off and be more careful next time.
Because of the dangers associated with products, the product disclaimer was born, and it is an effective document to protect business owners.
A product disclaimer is a statement that attempts to absolve the manufacturer of fault or blame should any type of injury or damage result from the use of that product. For instance, if a person decides to use a ladder to prop up a corner of a wall which falls and injures him the company that manufactured the ladder would not be responsible. The disclaimer on the ladder protects the company if the product is used in a manner for which it was not intended. The disclaimer on a product, if correctly worded, exempts the manufacturer and marketer from responsibility should the product in some way harm the user, their property, or bystanders.
The language of a disclaimer is critical; if incorrectly worded, a disclaimer doesn’t protect a company but opens it up to legal action. If a disclaimer states that no warranties of any kind are associated to the product, that statement is not enough to forestall legal action should a consumer use it incorrectly and suffer damage.
However, if it states that no warranties of any kind, either express or implied, is included in that product it makes a world of difference. A consumer that buys the first product could argue that the manufacturer implies that a ladder which has met consumer product safety standards is safe regardless of how it is used. When the “warranties express or implied” phrase is included it protects the manufacturer from the consumer’s assumption that the ladder would make a safe temporary prop for a precarious section of the wall.
Disclaimers protect your business in many ways. For every lawsuit that makes it to court, there are hundreds that don’t even make it past the initial consultation with an attorney. Thinking of the ladder once again, that person who misused the tool might be injured when the wall collapses but a knowledgeable attorney will tell him or her the disclaimer makes it difficult to sue the company that made the product.
The wording of the disclaimer makes it clear that no matter how the consumer uses the ladder, there is no basis to sue the company should the ladder fail. The exception would be if the ladder was made with defective materials or assembled wrongly.
Product disclaimers should be in a prominent place, in easy view of the consumer. Most companies affix the disclaimer in such a way that it is difficult to remove it so that the consumer can’t say that the disclaimer was missing or fell off the product. It is important to have the disclaimer visible for the life of the product if possible, since the product may change hands during its lifetime.
The following is an example of a simple product disclaimer:
This _____________________________________________ (describe the type of product) is provided as is without any guarantees or warranty. In association with the product, ___________________________ (your name or company name) makes no warranties of any kind, either express or implied, including but not limited to warranties of merchantability, fitness for a particular purpose, of title, or of noninfringement of third party rights. Use of the product by a user is at the user’s risk.
NO REPRESENTATIONS OR WARRANTIES, EITHER EXPRESS OR IMPLIED, OF MERCHANTABILITY, FITNESS FOR A SPECIFIC PURPOSE, THE PRODUCTS TO WHICH THE INFORMATION MENTIONS MAY BE USED WITHOUT INFRINGING THE INTELLECTUAL PROPERTY RIGHTS OF OTHERS, OR OF ANY OTHER NATURE ARE MADE WITH RESPECT TO INFORMATION OR THE PRODUCT TO WHICH INFORMATION MENTIONS. IN NO CASE SHALL THE INFORMATION BE CONSIDERED A PART OF OUR TERMS AND CONDITIONS OF SALE.”
The product disclaimer example shown above is not only short in length, but it is not specific to any product. You should not use it as is. If you need a product disclaimer, you should contact an attorney and have him or her draft it for your specific product.