Heather owns a bakery business; she sells an assortment of cakes, biscuits and pastries and delivers them. Heather is new to the business and has attempted to draft her own contracts. She included a number of clauses in her different contracts excluding various types of liability.

Shirley wants an assortment of cakes for her birthday party. When Shirley viewed the cakes, she was concerned about the delivery, as the road to Shirley's house is extremely bumpy. When Shirley questioned the delivery, Heather said "Don't worry! If any of the cakes are damaged I will replace them". All of the cakes were damaged during delivery. Heather is attempting to rely on a clause in the contract which states "The seller excludes liability for all damage to the product during delivery".

Focusing only on matters of construction, can Heather rely on this exclusion clause?

Please use IRAC to explain.