Test Your Procurement Skills: Reps and Warranties and Disclaimers, Oh My!

posted: > 10 days ago
Source: The Vendor Management Office

Here's an actual disclaimer provision added by a supplier, which immediately followed a representation and warranties section containing, e.g., a warranty against infringement.  I felt all warm and fuzzy when I saw the opening clause in the disclaimer ('Other than as expressly provided for herein...'), believing that my express reps and warranties in the prior section weren't disclaimed and were still valid.  So--specifically in reference to my express reps and warranties--should I feel warm and fuzzy or should I feel cold and prickly?


15. Disclaimer of Warranty.  OTHER THAN AS EXPRESSLY PROVIDED FOR HEREIN, SUPPLIER AND ITS LICENSORS MAKE NO REPRESENTATION, WARRANTY, OR GUARANTY AS TO THE RELIABILITY, TIMELINESS, QUALITY, SUITABILITY, TRUTH, AVAILABILITY, ACCURACY OR COMPLETENESS OF THE SOFTWARE. SUPPLIER AND ITS LICENSORS DO NOT REPRESENT OR WARRANT THAT (A) THE USE OF THE SOFTWARE WILL BE SECURE, UNINTERRUPTED OR ERROR FREE, OR (B) THE SOFTWARE OR THE SERVERS THAT MAKE THE SERVICES AVAILABLE ARE FREE OF VIRUSES OR OTHER HARMFUL COMPONENTS. ALL CONDITIONS, REPRESENTATIONS, AND WARRANTIES, WHETHER EXPRESS, IMPLIED, STATUTORY OR OTHERWISE, INCLUDING, WITHOUT LIMITATION, ANY IMPLIED WARRANTY OF MERCHANTABILITY, OR FITNESS FOR A PARTICULAR PURPOSE, ARE HEREBY DISCLAIMED TO THE MAXIMUM EXTENT PERMITTED BY APPLICABLE LAW BY SUPPLIER AND ITS LICENSORS. THE SOFTWARE HEREUNDER IS BEING DELIVERED OVER THE INTERNET, AND ACCORDINGLY, IS SUBJECT TO LIMITATIONS, DELAYS, AND OTHER PROBLEMS INHERENT IN THE USE OF THE INTERNET AND ELECTRONIC COMMUNICATIONS. SUPPLIER IS NOT RESPONSIBLE FOR ANY DELAYS, DELIVERY FAILURES, VIRUSES, HACKER INTRUSIONS OR OTHER DAMAGE RESULTING FROM SUCH PROBLEMS.