Information Memorandum Disclaimers: What You Need To Know (2026 Updated)

If you’re raising capital, selling a business, or bringing in strategic partners, you’ll probably hear the term “information memorandum” (often shortened to “IM”). It can feel like a straightforward marketing document - until someone later says they relied on it and now there’s a dispute.

That’s where an information memorandum disclaimer becomes crucial. It helps set expectations, manage risk, and make it clearer what your IM is (and isn’t) saying.

This article is updated to reflect current expectations around investor communications and risk management in New Zealand, including how regulators and counterparties typically look at disclosures and representations today.

What Is An Information Memorandum (IM), And When Do You Use One?

An information memorandum is a document that gives a potential investor, purchaser, lender, or business partner a detailed overview of an opportunity.

Depending on the deal, an IM might cover:

• what the business does and how it makes money
• market background and competitive landscape
• team and operational overview
• historical financials and forecasts
• assets and key contracts
• risks (legal, commercial, operational)
• transaction structure (e.g. share sale, asset sale, investment round)

You’ll often see IMs used in scenarios like:

• Selling a business (especially where you’re approaching multiple buyers or running a structured process)
• Raising capital (angel investment, private funding rounds, strategic investment)
• Seeking finance (some lenders or private financiers may ask for a detailed business brief)
• Offering units/shares in a vehicle (for example, certain property or operating entities)

An IM is not always legally required, but it’s a common “deal document” because it helps you tell your story consistently and reduces the need to repeat the same explanations to every interested party.

At the same time, the more detail you put into an IM, the more important it is that you control how that information is used - and that’s a big reason disclaimers matter.

Why Do Information Memorandum Disclaimers Matter?

An IM disclaimer is essentially a risk management tool. It sets boundaries around reliance, accuracy, and responsibility - which can be crucial if something in the IM later turns out to be incorrect, incomplete, or misunderstood.

In plain terms, you’re trying to avoid this situation:

“I read your IM, I believed it, I invested/bought/loaned money, and now I’ve suffered a loss - so you owe me.”

Even if you didn’t intend to mislead anyone, disputes often come down to:

• what was said (or implied) in the IM
• whether it was reasonable for the other party to rely on it
• whether key risks were properly disclosed
• whether the IM created a misleading impression overall

Disclaimers Help You Control “Reliance”

One of the biggest legal risk areas is reliance. If a buyer or investor can show they relied on statements in your IM, that can increase your exposure to claims (depending on the facts and what laws apply).

A well-drafted disclaimer typically aims to say:

• the IM is for information purposes only
• it’s not advice (legal, financial, tax, investment)
• recipients must make their own enquiries and obtain independent advice
• the recipient should rely on the final transaction documents and due diligence, not the IM

They Also Support Your Compliance Mindset

In NZ, statements made in business communications can create risk under laws such as the Fair Trading Act 1986 (misleading or deceptive conduct) and the Contract and Commercial Law Act 2017 (including issues around misrepresentation and pre-contract statements).

A disclaimer won’t “magic away” those obligations, but it can help show you took care to communicate fairly, clarify limitations, and encourage independent verification.

They Reduce The Chance Of The IM Being Treated Like A Promise

Sometimes an IM accidentally reads like a set of promises, especially where it includes forecasts or ambitious growth claims. If it sounds like a guarantee, it may be easier for a counterparty to argue they were entitled to rely on it.

Disclaimers help keep your IM in the right category: informative, not contractual.

What Should An Information Memorandum Disclaimer Include?

There’s no one-size-fits-all wording, because the right disclaimer depends on your deal, your audience, and what you’ve included in the IM.

That said, most well-prepared IM disclaimers cover a handful of “core” protections.

1) No Advice / Independent Advice Statement

This makes it clear the IM is not:

• legal advice
• financial advice
• tax advice
• investment advice

It should encourage the recipient to obtain independent professional advice before acting.

2) No Representation Or Warranty (And Limits On Accuracy)

IMs often include information compiled from internal reports, financial statements, third parties, market research, and management estimates. Even with careful checking, there may be errors or updates after the IM is circulated.

Common wording covers points like:

• information is provided in good faith, but accuracy/completeness is not guaranteed
• no representation or warranty is given (express or implied)
• information may change without notice

This is especially important if you’ve included forecasts or forward-looking statements (more on that below).

3) Reliance, Due Diligence, And Transaction Documents Prevail

This is often the “heart” of an IM disclaimer.

It usually says that recipients:

• must conduct their own due diligence and make their own assessment
• should not rely on the IM as the sole basis for a decision
• should rely on final signed documents (and the warranties/indemnities within them), not marketing materials

For example, if you’re selling a business, the “real” terms should end up in a properly drafted sale agreement. If you’re doing a share transaction, you might also be working through structure and governance documents like a Shareholders Agreement and a Company Constitution.

4) Forward-Looking Statements And Forecasts Warning

Forecasts can be helpful, but they’re a common source of risk because readers often treat them as “what will happen” rather than “what might happen if assumptions hold”.

A good disclaimer usually:

• labels forecasts as forward-looking and inherently uncertain
• explains they’re based on assumptions which may not occur
• states actual results may differ materially

It’s also smart to make sure your assumptions are reasonable and documented. Disclaimers help, but they’re not a replacement for being careful with the numbers you put in writing.

5) Confidentiality And Permitted Use

An IM often contains commercially sensitive information. If you’re sharing it broadly, you want to control who can see it, what they can do with it, and whether they can share it with competitors.

This is where a separate NDA (non-disclosure agreement) can be very useful. In many deals, you’ll provide the IM only after a recipient signs a Non-Disclosure Agreement.

Your disclaimer (and/or NDA) may cover:

• the IM is confidential
• it can only be used to evaluate the proposed transaction
• no copying or distribution without consent
• return or destruction of documents if negotiations stop

6) No Offer / No Contract Statement

This is particularly relevant if the IM discusses pricing, terms, or a proposed structure.

The disclaimer should make it clear the IM is not:

• an offer capable of acceptance
• a binding commitment to proceed
• a promise that a transaction will happen

Often, the deal process involves a term sheet or heads of agreement first, and only later moves to binding documents. If you’re at that early stage, you might also be thinking about how a Heads Of Agreement should be drafted so it reflects what is intended to be binding (and what isn’t).

7) Liability Limitation (With Care)

Some disclaimers attempt to exclude or limit liability for loss arising from use of the IM.

This can help, but it must be approached carefully. In NZ, you generally can’t rely on a disclaimer to protect you if you’ve engaged in misleading or deceptive conduct, or where an exclusion is otherwise unenforceable in the circumstances.

In other words: exclusions are not a “get out of jail free” card - and overly aggressive wording can sometimes backfire commercially.

What Legal Risks Does An Information Memorandum Create In New Zealand?

It’s worth being upfront: even with a good disclaimer, an IM can still create legal risk if it contains misleading statements, omissions, or unreasonable claims.

Here are some of the big risk areas we regularly see for NZ businesses.

Misleading Or Deceptive Conduct (Fair Trading Act 1986)

The Fair Trading Act 1986 broadly prohibits misleading or deceptive conduct in trade. That can include:

• overstating revenue or understating costs
• cherry-picking metrics that give a misleading overall impression
• making claims about “guaranteed” growth
• failing to disclose known issues that make the IM misleading in context

A disclaimer helps clarify limitations, but it won’t protect you if the IM is materially misleading. The best approach is always: say what’s true, support it with evidence, and disclose risks clearly.

Misrepresentation And Pre-Contract Statements

If your IM contains a statement of fact that turns out to be wrong, and the other party relied on it when entering the deal, you can end up with a claim that they were misled.

This is particularly common where the IM includes statements like:

• “This contract will be renewed”
• “This customer will stay for at least 2 years”
• “The business has no disputes”
• “All staff will remain”

If something is uncertain, it’s safer to word it as uncertain - and explain what you’re basing the statement on.

Privacy And Data Handling Risks

Sometimes IMs include customer numbers, cohort data, marketing performance, or operational information that (directly or indirectly) relates to identifiable individuals. If your IM includes personal information, you need to be mindful of your obligations under the Privacy Act 2020.

Practically, you may need to de-identify data, minimise what you share, and ensure your disclosures align with your Privacy Policy and internal processes.

Employment-Related Statements

In business sale contexts, IMs often talk about staff, roles, wage costs, and retention. If you have employees, be careful about what you represent regarding:

• staff entitlements and leave balances
• performance issues or disputes
• whether key employees are “locked in”

If you’re planning to hire or restructure as part of the growth story presented in the IM, it can help to ensure your foundations are in place (for example, having a proper Employment Contract template ready to go).

How Do You Use Disclaimers Properly (So They Actually Work)?

A disclaimer is only helpful if it’s used in a way that’s consistent, visible, and supported by your overall deal process.

Here are practical steps that can make a real difference.

Put The Disclaimer In The Right Places

In most IMs, you’ll want the disclaimer:

• at the very front of the document (so it’s seen before the reader gets into the content)
• in the footer or header as a reminder (depending on layout)
• repeated near particularly risky sections (e.g. forecasts), if appropriate

If your IM is emailed as a PDF, be careful about sending “extra explanations” in the email body that contradict the disclaimer. Consistency matters.

Control Distribution

Many disputes start because an IM was shared further than intended, or because you can’t prove who received which version.

Practical controls include:

• version numbers and dates on the IM
• a distribution register (who received it, when, and which version)
• watermarking (“Confidential” and recipient name, if possible)
• only releasing the IM after an NDA is signed

Be Careful With Forecasts (And Don’t Bury Bad News)

Forecasts are a common feature of IMs, but they can be risky if they’re optimistic without a reasonable basis.

Some practical tips:

• make sure the assumptions are stated clearly
• avoid describing forecasts as “guaranteed” or “locked in”
• include key risks next to the growth story (not hidden at the back)
• ensure your disclaimer matches the way you talk about the forecasts in the body of the IM

Disclaimers support your position, but they can’t “fix” an IM that creates an overall misleading impression.

Align The IM With The Deal Documents

Where founders get caught out is when the IM says one thing, but the final contract says another (or leaves the topic silent).

For example:

• If the IM implies there are no disputes, but there’s an ongoing customer complaint, that’s a mismatch you should address.
• If the IM states a key supplier contract is “secure”, but the contract is month-to-month, you’ll want to clarify that.
• If the IM says the buyer “will receive” certain assets, make sure the sale documentation actually transfers them.

If you’re going into a sale process, you may also be thinking about the structure itself (share sale vs asset sale, “going concern” treatment, what transfers and what doesn’t). That’s often where tailored advice makes the biggest difference, because the legal risk is usually in the details.

Key Takeaways

• An information memorandum (IM) is a common tool for selling a business, raising capital, or seeking strategic partners, but it can create legal risk if it contains misleading statements or omissions.
• An information memorandum disclaimer helps manage expectations by clarifying that the IM is for information only, is not advice, and should not be solely relied on when making a decision.
• Strong IM disclaimers usually cover no advice, no representations/warranties, limitations on reliance, confidentiality, forward-looking statements, and that final transaction documents take priority.
• In New Zealand, disclaimers don’t override obligations under laws like the Fair Trading Act 1986 and general rules around misrepresentation, so the IM still needs to be accurate and balanced.
• If your IM includes forecasts, you should clearly state assumptions and risks, and ensure the disclaimer supports (not contradicts) how forecasts are presented.
• Disclaimers work best when paired with a sensible deal process, including controlled distribution, version tracking, and using NDAs before releasing confidential information.

If you’d like help drafting or reviewing an information memorandum disclaimer (or the wider documents around your capital raise or sale process), you can reach us at 0800 002 184 or team@sprintlaw.co.nz for a free, no-obligations chat.