Clause primer
Disclaimer of implied warranties
The clause limits the seller's or provider's promises to the express warranties written in the agreement and excludes warranties the law would otherwise imply.
Legal information, not legal advice. What a clause does depends on its exact words, the rest of the agreement and the governing law.
Also called: "as is" clause, warranty disclaimer, disclaimer of merchantability and fitness. Where you find it: Software licenses and SaaS terms, sales of goods and equipment, asset purchase agreements, evaluation and beta agreements, and open data or sample terms.
SAMPLE CLAUSE (INVENTED FOR THIS PRIMER)
EXCEPT FOR THE EXPRESS WARRANTIES IN SECTION 8.1, PROVIDER MAKES NO OTHER WARRANTIES, AND PROVIDER DISCLAIMS ALL IMPLIED WARRANTIES, INCLUDING ANY IMPLIED WARRANTY OF MERCHANTABILITY, FITNESS FOR A PARTICULAR PURPOSE, TITLE AND NON-INFRINGEMENT, AND ANY WARRANTY ARISING FROM COURSE OF DEALING OR USAGE OF TRADE. PROVIDER DOES NOT WARRANT THAT THE SERVICE WILL BE UNINTERRUPTED OR ERROR-FREE. ANY BETA FEATURES ARE PROVIDED "AS IS" AND "AS AVAILABLE" WITHOUT WARRANTY OF ANY KIND.
How it works
Carve-back for express warranties
The opening words preserve the warranties the provider did give. A disclaimer without this carve-back can contradict the express warranties and create an ambiguity a court may resolve against the drafter.
Named implied warranties
Merchantability and fitness for a particular purpose are named expressly because, for goods, UCC Section 2-316 sets specific requirements for excluding them, including mention of merchantability and conspicuousness. Naming title and non-infringement matters because they are treated differently from the other implied warranties.
Capital letters
The uppercase text is there to make the disclaimer conspicuous. Formatting is a practical test of enforceability for goods and is often applied by analogy elsewhere.
Performance and beta language
Disclaiming uninterrupted or error-free operation narrows what a customer can claim the service promised. Marking beta features "as is" removes warranties for features the provider has not yet committed to support.
Why it is there
The clause lets the provider define its quality commitments precisely, so liability turns on the express warranties and remedies it priced. It protects the seller or provider against open-ended claims built on implied promises the parties never discussed. For the customer, it signals that the express warranties and any SLA are the whole of what it can rely on, which makes those sections the place to negotiate.
How it works with other clauses
- Express warranties: the disclaimer only works cleanly if it carves back the warranties actually given, so read the two sections together.
- Exclusive remedies: disclaimers usually pair with a clause making repair, replacement or refund the sole remedy, which is a separate mechanism with its own enforceability rules.
- Limitation of liability: the disclaimer narrows what can be claimed, while the cap limits how much; both are typically excluded for fraud or certain indemnities.
- Entire agreement and non-reliance: these support the disclaimer by excluding statements made outside the contract, though they may not bar fraud claims.
Negotiating it
Who it protects: The seller, licensor or service provider.
If it protects you
- Keep the disclaimer conspicuous and the implied warranties named expressly.
- Keep the carve-back limited to the specific express warranty sections.
- Keep "as is" treatment for beta, free and evaluation features.
If it runs against you
- Standard ask: express warranties that the product will perform materially in accordance with its documentation and that services will be performed in a professional manner; fallback: a documentation warranty with a defined repair or refund remedy.
- Ask for an express non-infringement warranty or an IP indemnity if the disclaimer excludes non-infringement.
- Ask that any "as is" language be limited to beta or free features.
Escalate before accepting: A paid production product delivered entirely "as is," with no express performance warranty and no remedy, usually warrants escalation.
What AI explanations get wrong
- Applying UCC Article 2 to a pure SaaS or services agreement as settled law; check whether the transaction is goods, and treat Article 2 as persuasive at most where it is not.
- Treating the disclaimer as also limiting damages; check the separate limitation of liability and exclusive remedy clauses.
- Missing consumer protection limits; check whether any buyer is a consumer, since federal and state consumer laws can restrict disclaimers.
- Overlooking that the disclaimer is not conspicuous in the final formatted document; check the signed version, not a plain-text extract.
Where the law varies
For goods, UCC Section 2-316 as adopted in each state sets the requirements, and states have local variations. For services and software, courts differ on whether and how Article 2 applies, and consumer protection laws in some states limit disclaimers.
Sources
TOOLS
Need a primer like this for a clause in front of you? The Clause Primer Kit, included in All-access, produces one in this format inside the AI tool you already use, with checks built in. For reviewing whole agreements, see the Practice-Area Pack: Commercial and Technology Contracts.