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Introduction

A disclaimer is a device intended to exclude or limit liability under Contract, tort (particularly negligence) or statute. Disclaimers are also referred to as exclusion, limitation of liability or exemption clauses and commonly take the form of a notice or a clause within a set of terms and conditions.

For a disclaimer to be effective, the party seeking to rely on the disclaimer must give notice of the disclaimer to the other party. Timing is critical—notice must be given before the other party can give their assent (whether express or implied through conduct) to the disclaimer. Without notice, a party cannot agree to a disclaimer. Without assent, a disclaimer cannot be enforced against the other party. Drafting cannot cure the absence of notice and assent. What constitutes notice and assent will depend on the context—ie the surrounding circumstances. The more onerous the disclaimer is, the more obvious it must be.

The obvious way for a party to give their