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Here is a quote from Disclaimer of Warranty clause in Terms of Use of a web site.

We make no representation of any kind, and make no undertaking of any kind, and disclaim all warranties or guarantees, whether express, implied, statutory or otherwise...

What is not understandable to me is the all warranties or guarantees portion, in regard to website Terms of Use, how are warranties different from guarantees and whether it makes any sense for both to be written or is it enough to just say all warranties?

Regarding same quote above, does and make no undertaking of any kind belong into Disclaimer of Warranty and the quote above or perhaps it should be put into some other clause such as Limitation of Liability?

I also believe that We make no representation of any kind, and make no undertaking of any kind can be simplified to just We make no representation and no undertaking of any kind without losing the same meaning?

So this are 3 questions in one regarding same quote.
I believe extra wording and explicitness does not hurt, but out of interest would like to know the details about those wordings in regard to ToS as not to make things more complicated to the reader than what it needs to be.

metablaster
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Legal language routinely says things in every possible way.

The key point to understand is that certain warranties are implied by law in some context, such as warranties that you own what you are selling, warranties that what you are selling has been made in a workman-like fashion, and warranties that what you are selling is fit for a particular purpose or is consistent with what you have said it is able to do.

Basically, this language is attempting to withdraw any and all promises and saying that what is being sold is being sold "as is", no matter what has been said prior to this transaction.

Some of this is basically hedging bets in a "term of service" that the online product might be treated like physical goods, either as a matter of legal classification, or by analogy.

ohwilleke
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The whole clause is illegal and unenforceable

The guarantees in the Australian Consumer Law cannot be contracted out of, and any attempt to do so is both void and has been successfully prosecuted as misleading and deceptive conduct. I believe the biggest fine to date is Mazda’s AUD 11.5 million, although fines in the billions are possible.

Note that the ACL apples to any supply of goods and services by a business to a consumer (which is broadly defined and includes many B2B supplies) irrespective of if the supply is a contract or a gift. Making a website available on the internet is the supply of a service.

Such exclusionary clauses are fine providing they are explicit that they are not purporting to exclude statutory obligations that cannot be excluded. A common phrase is “To the maximum extent permissible under law, …”

Warranty vs Guarantee

In Australian law, a guarantee is imposed by statute, a warranty is an explicit promise by the supplier. The promise can be about a current state of affairs — “the house has never had termites” — or about a future state of affairs — “servicing is included for 3 years”.

Breach of a guarantee gives a statutory right of action; breach of a warranty gives a contract law right of action.

Implied terms

A “no undertakings” clause is a specific disclaimer of any and all implied terms; that is, if the contract doesn’t explicitly say it, it doesn’t do it. Note that this cannot exclude unexcludable statutory terms, so it should also have “To the maximum extent permissible under law, …”

However, such clauses will only affect things that are peripheral to the main purpose of the contract. For example, if you are selling a car, such a clause will protect you if the tyres or brakes are worn, but not that the engine is buggered. To exclude such things you need to be explicit that you are selling a broken car.

Simple is best, but …

In general, a contract should state clearly in plain English the rights and obligations of both parties.

However, legal English is not always the same as generic English as some words and phrases have been interpreted by the courts and therefore, their legal meaning may be broader or narrower than what is commonly understood. That’s why some phrases keep cropping up in contracts.

Of course, lawyers are just as lazy as everybody else and so the reason it’s there is because it’s been copied and pasted for 50 years without ever being reviewed.

Dale M
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You’ve raised some good points about legal language in Terms of Use. Let’s break down your questions:

  1. Warranties vs. Guarantees: In legal contexts, "warranties" typically refer to promises about the quality or performance of a product or service, while "guarantees" often imply a stronger assurance, sometimes with a specific remedy if the promise is not met. Including both terms can provide clarity and cover different interpretations.

  2. Placement of "make no undertaking": This phrase can indeed belong in a Disclaimer of Warranty, as it emphasizes that the site isn't promising anything. However, it can also fit in a Limitation of Liability clause, where it could further clarify the extent of liability the site assumes. Its placement depends on the broader structure of the Terms of Use.

  3. Simplifying language: Yes, you can simplify "We make no representation of any kind, and make no undertaking of any kind" to "We make no representation and no undertaking of any kind" without losing meaning. Legal documents often include more wording for precision and to cover all bases, but simplicity can aid understanding.

Overall, while extra wording can clarify intent, balancing clarity with conciseness is key to making legal terms accessible.

MrCobb
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