Software Warranty


The Software Warranty details the rights, if any, that the licensee may have in the event that software is damaged or faulty. There is not a standard clause but rather a range of options that may offer no warranty to limited warranties for media, software and support.

Under common law an implied warranty is applied to the sale of real property and goods. The implied warranty includes merchantability, fitness for purpose, and title. While most courts have held that software is a "good" (covered by the UCC), many software license agreements provide for a combination of goods and services (not covered by the UCC).

"Software publishers disclaim the implied warranty of merchantability because the repercussions of recognizing such warranties are unknown." The Implied Warranty of Merchantability in Software Contracts: A Warranty No One Dares to Give and How to Change That, Robert W. Gomulkiewicz, 1998, 16 John Marshall J. of Comp. & Info. Law 393.

Standard Clause

No Warranty. The Software is provided "as is" without warranty of any kind, either express or implied, including without limitation any implied warranties of condition, uninterrupted use, merchantability, fitness for a particular purpose, or non-infringement.

Clause Alternatives

Alternative 1 - Media Warranty

[Licensor] warrants for a period of ninety (90) days [following delivery of the Software][from the date of purchase (as evidenced by a copy of your receipt] that the CD-ROMs, diskettes, or other media upon which the Software is delivered are free from defects in materials and workmanship under normal use.

OR

Apple warrants the media on which the Apple Software is recorded and delivered by Apple to be free from defects in materials and workmanship under normal use for a period of ninety (90) days from the date of original retail purchase.

Alternative 2 - Limited Software Warranty

[Licensor] warrants for a period of [WARRANTY PERIOD] days following delivery of the Software that the Software will perform substantially in accordance with the Documentation.

Alternative 3 - Limited Support Services Warranty

[Licensor] warrants for a period of [WARRANTY PERIOD] days following performance of the service that its Maintenance Support Services [shall be performed consistent with generally accepted industry standards] ][shall be in substantial compliance with this Agreement][shall be in substantial compliance with the written Support Documentation provided to [Licensee]]

Alternative 4 - Exclusion of Information and Advice

No oral or written information or advice given by [licensor], its dealers, distributors, agents or employees shall create a warranty, or in any way increase the scope of this warranty, and you may not rely on any such information or advice.

Discussion

Does UCC Apply to Software?

Richard Raysman (Holland & Knight ) and Peter Brown (Baker & Hostetler) write "[c]ourts have held that software is a good under the UCC, and that even if a software agreement provides for installation, training, technical support, and upgrade services, this fact does not automatically convert an agreement into a services contract," However, they write further: "Due to the nature of software transactions, there is no national consensus regarding whether software license agreements signed by commercial parties are contracts for the sale of "goods" and therefore within the UCC's purview."

How the UCC Is Applied to Software Contracts, New York Law Journal, March 9, 2011.

See also, Applying the UCC to Software License Agreements.

Uniform Computer Information Transactions Act

"The Uniform Computer Information Transactions Act (UCITA) is a proposed state contract law developed to regulate transactions in computer information products such as computer software, online databases, software access contracts or e-books." UCITA Online.

Requirements for Disclaimer of Implied Warranty

To disclaim the implied warranty the "seller must clearly and explicitly do so at the time of contracting by using words that communicate the risks that fall on the buyer." However, even where expressly disclaimed the doctrine of unconscionability may override the disclaimer where "the term is part of a contract of adhesion and, when the term...considered in its context...would be unconscionable." California Small Claims Court, s7.19 UCC -Disclaimer of Implied Warranty.

Performance Warranties

Diane W. Savage of Cooley Godward Kronish LLP state that no matter how well drafted disclaimer of warranty "they will not protect the supplier in the event that the supplier has engaged in business practices which constitute negligent or intentional misrepresentation or fraud." Performance Warranties in Computer Contracts. She concludes by providing a thorough performance warranty checklist.