Guidance

No Warranty - What the Courts Say…

While not all courts will accord the warranty clause a great amount of weight, some, such as the Supreme Court of Delaware, do enforce it "vigorously." ("On Contracts", citing RAA Mgmt., LLC v. Savage Sports Holdings, Inc., No. 577, 2011 (Del. May 18, 2012)).

Market Standard

A study of EULAs by Hillman and Barakat showed "that virtually all of the websites and End User License Agreements (EULAs) we sampled include express warranties on the website and disclaimers of the warranties in the EULAs that may erase all or much of the quality protection."

Warranties and Disclaimers in the Electronic Age. Hillman, Robert A. and Barakat, Ibrahim, Cornell Law Faculty Publications, Paper 19 (2009). Frank Politano, author of Drafting License Agreements (Vol1) notes that "[s]oftware vendors regard the implied warranties as particularly inapplicable to computer software. Though appropriate for products like refrigerators (which buyers reasonably expect to chill or freeze food), the concept of "merchantability" is more problematic in the context of computer software. Because software is complex and rarely error-free, there is far less consensus on what may be "ordinary purposes" for which it is used or what may constitute fitness for those purposes."

Google Books

Alternative 1 - Express Disclaimers

1.1. Disclaimer of Warranties. [Licensor] disclaims to the [fullest] extent authorized by law any and all [other] warranties, whether express or implied, including, without limitation, any implied warranties of [title, non-infringement, quiet enjoyment, integration,] merchantability or fitness for a particular purpose. Without limitation of the foregoing, [Licensor] expressly does not warrant that:

(a) the software will meet your requirements [or expectations];

(b) the software or the software content] will be free of bugs, errors, viruses or other defects;

(c) any results, output, or data provided through or generated by the software will be accurate, up-to-date, complete or reliable;

(d) the software will be compatible with third party software;

(e) any errors in the software will be corrected.

Alternative 2 - Licensee Bears Responsibility

1.2. Software Quality. [Licensee] assumes all responsibility for selecting the software and for the results obtained from the use of the software. [Licensee] shall bear the entire risk as to the quality and the performance of the software.

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  • Organization: Public
  • Updated: 10/21/2018
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Overview

The No Other Warranty clause is common in agreements for both goods and services, especially standard commercial contracts.

The Uniform Commercial Code (the UCC) (which generally covers agreements for the sale of goods, but not services agreements), imposes a number of implied warranties, that apply without even being included in the agreement, unless they are explicitly disclaimed in the agreement.

Under the UCC, the specific implied warranties that apply in any given case will depend on whether the seller is a merchant, a merchant who deals specifically with the kind of goods sold under the agreement, or a non-merchant seller.

These implied warranties include warranties for merchantability, fitness for a particular purpose, and title.

In general, to disclaim implied warranties the disclaimer must explicitly refer to each implied warranty being disclaimed, and be conspicuous and in writing (i.e. in a bold, italicized font).

While most courts have held that software is a "good" (and therefore 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.

A No Warranty clause is typically paired with a clause limiting or eliminating liability for the provider.