Warranty Clauses in Contracts: Express, Implied, and AS-IS Explained
Warranty clauses determine what the seller promises about their product or service. Get the warranty wrong and you have no recourse when things break.
Express vs implied warranties
Express warranties are specific promises written into the contract: "The software will materially conform to the documentation for 90 days." "The goods will be free from defects in materials and workmanship for 12 months."
Implied warranties arise automatically under the UCC and common law, even if the contract is silent. The two most important are the implied warranty of merchantability (the product is fit for its ordinary purpose) and the implied warranty of fitness for a particular purpose (the product is suitable for the buyer’s stated use).
Key takeaway
Express warranties are promises you write. Implied warranties exist automatically unless disclaimed. The AS-IS clause is how sellers disclaim implied warranties.
The AS-IS disclaimer
Almost every software, SaaS, and technology contract includes an AS-IS disclaimer: "EXCEPT AS EXPRESSLY SET FORTH ABOVE, THE SOFTWARE IS PROVIDED AS-IS. PROVIDER DISCLAIMS ALL OTHER WARRANTIES INCLUDING MERCHANTABILITY, FITNESS FOR A PARTICULAR PURPOSE, AND NON-INFRINGEMENT."
This means the only warranty you get is whatever is expressly stated above the disclaimer. Everything else — including that the product will work for your specific use case — is disclaimed.
Watch out: If a contract says "AS-IS" with no express warranty above it, you have zero warranty protection. The vendor promises nothing about the product’s quality or fitness.
Negotiating better warranty terms
For services: push for "professional and workmanlike manner consistent with industry standards" — this is the minimum acceptable warranty.
For software: push for "material conformance with documentation" for at least 90 days, plus a commitment to fix bugs within a reasonable timeframe.
For goods: push for "free from defects in materials and workmanship" for at least 12 months.
Always clarify the remedy: is it repair, replace, or refund? A warranty without a remedy is just a promise.
Pro tip: A warranty without a defined remedy is worthless. Always negotiate what happens when the warranty is breached: repair, replace, or refund.
Check warranty clauses in your contracts
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