Warranty Disclaimer / As-Is Clause

TL;DR: The warranty disclaimer is the clause that determines whether your client is buying a product with a safety net or jumping without a parachute. It is also one of the most technically demanding provisions to draft correctly - get the magic words wrong, the formatting wrong, or the statutory interaction wrong, and the disclaimer may be void, leaving the seller exposed to warranty claims it thought it had eliminated. The UCC requires conspicuousness. The Magnuson-Moss Act prohibits disclaiming implied warranties on consumer products that carry written warranties. State consumer protection statutes may override your carefully drafted language entirely. And the distinction between a warranty disclaimer and a representation disclaimer is a trap that catches even experienced practitioners. If you draft or review warranty disclaimers, you need to know precisely where the enforceability lines are - because your counterparty certainly will when something goes wrong.

What Is a Warranty Disclaimer?

A warranty disclaimer is a contractual provision by which a seller, licensor, or service provider limits or eliminates the warranties - particularly implied warranties - that would otherwise apply to the transaction by operation of law. The clause typically addresses the implied warranty of merchantability (the product is fit for ordinary use), the implied warranty of fitness for a particular purpose (the product is suitable for the buyer's specific intended use), and, in some contexts, the implied warranty of title and non-infringement.

The most common form of warranty disclaimer is the "as is" clause, which communicates that the buyer is accepting the goods, software, property, or services in their present condition without any warranty regarding their quality, condition, or suitability. In software transactions, the disclaimer often takes the form of the familiar all-caps block: "THE SOFTWARE IS PROVIDED 'AS IS' WITHOUT WARRANTY OF ANY KIND, EXPRESS OR IMPLIED, INCLUDING BUT NOT LIMITED TO THE IMPLIED WARRANTIES OF MERCHANTABILITY, FITNESS FOR A PARTICULAR PURPOSE, AND NON-INFRINGEMENT."

Warranty disclaimers operate in a complex regulatory landscape. Under the Uniform Commercial Code (UCC), which governs the sale of goods in the United States, implied warranties arise automatically and can only be disclaimed through specific statutory language and formatting requirements. The Magnuson-Moss Warranty Act adds a federal overlay for consumer products. State consumer protection statutes - such as the Song-Beverly Consumer Warranty Act in California - may further restrict or prohibit warranty disclaimers in consumer transactions. In the UK, the Consumer Rights Act 2015 renders most warranty disclaimers in consumer contracts unenforceable, while the Unfair Contract Terms Act 1977 applies a reasonableness test in B2B contexts.

It is critical to distinguish warranty disclaimers from several related but distinct concepts. Limitation of liability clauses cap the amount of damages recoverable, but do not eliminate the underlying warranty. Limitation of remedy clauses restrict the types of remedies available (e.g., repair or replace only) while leaving the warranty intact. And disclaimers of representations address pre-contractual statements of fact, which may give rise to misrepresentation claims that survive a warranty disclaimer.

Why It Matters

Key Elements of a Well-Drafted Warranty Disclaimer

Market Position & Benchmarks

Where Does Your Clause Fall?

Market Data

Sample Language by Position

"THE PRODUCT IS PROVIDED 'AS IS' AND 'WITH ALL FAULTS.' SELLER MAKES NO WARRANTIES, REPRESENTATIONS, OR CONDITIONS OF ANY KIND, WHETHER EXPRESS, IMPLIED, STATUTORY, OR OTHERWISE, INCLUDING BUT NOT LIMITED TO THE IMPLIED WARRANTIES OF MERCHANTABILITY, FITNESS FOR A PARTICULAR PURPOSE, TITLE, AND NON-INFRINGEMENT. SELLER DOES NOT WARRANT THAT THE PRODUCT WILL MEET BUYER'S REQUIREMENTS, THAT THE OPERATION OF THE PRODUCT WILL BE UNINTERRUPTED OR ERROR-FREE, OR THAT DEFECTS IN THE PRODUCT WILL BE CORRECTED. THE ENTIRE RISK AS TO THE QUALITY AND PERFORMANCE OF THE PRODUCT IS WITH BUYER."

"EXCEPT FOR THE EXPRESS WARRANTIES SET FORTH IN SECTION 8.1, VENDOR DISCLAIMS ALL WARRANTIES, WHETHER EXPRESS, IMPLIED, STATUTORY, OR OTHERWISE, INCLUDING THE IMPLIED WARRANTIES OF MERCHANTABILITY, FITNESS FOR A PARTICULAR PURPOSE, AND NON-INFRINGEMENT. VENDOR DOES NOT WARRANT THAT THE SERVICE WILL BE UNINTERRUPTED OR ERROR-FREE. The foregoing disclaimer shall not apply to the extent prohibited by applicable law, in which case Vendor's warranty shall be limited to the minimum scope and duration permitted by such law."

"Vendor disclaims the implied warranty of fitness for a particular purpose. All other implied warranties, including the implied warranty of merchantability and the implied warranty of non-infringement, remain in full force and effect. Nothing in this Section limits or qualifies the express warranties set forth in Sections 8.1 through 8.4 or Vendor's obligations under the Service Level Agreement attached as Exhibit B. For the avoidance of doubt, the warranty disclaimer in this Section does not apply to Vendor's representations in Section 7, which shall survive in accordance with Section 12.3."

Example Clause Language

"Licensor warrants that, for a period of 90 days from the date of delivery (the 'Warranty Period'), the Software will perform in substantial conformance with the Documentation. Licensor's sole obligation and Licensee's exclusive remedy for breach of this warranty shall be, at Licensor's option, to (a) correct the non-conformance, (b) replace the Software, or (c) refund the license fees paid for the non-conforming Software. EXCEPT FOR THE EXPRESS WARRANTY SET FORTH IN THIS SECTION, THE SOFTWARE IS PROVIDED 'AS IS' AND LICENSOR DISCLAIMS ALL OTHER WARRANTIES, WHETHER EXPRESS, IMPLIED, STATUTORY, OR OTHERWISE, INCLUDING THE IMPLIED WARRANTIES OF MERCHANTABILITY, FITNESS FOR A PARTICULAR PURPOSE, TITLE, AND NON-INFRINGEMENT. LICENSOR DOES NOT WARRANT THAT THE SOFTWARE WILL OPERATE WITHOUT INTERRUPTION OR ERROR, OR THAT ALL DEFECTS WILL BE CORRECTED."

"Buyer acknowledges and agrees that Buyer is purchasing the Property in its present 'AS IS, WHERE IS, WITH ALL FAULTS' condition and without any warranties, representations, or guarantees, either express or implied, of any kind, nature, or type whatsoever from or on behalf of Seller, including without limitation any warranties or representations as to the physical condition of the Property, the environmental condition of the Property, the suitability of the Property for any particular use, compliance of the Property with applicable laws, zoning, or building codes, or the accuracy of any information provided by Seller regarding the Property. Buyer acknowledges that Buyer has conducted or has had the opportunity to conduct such inspections and investigations of the Property as Buyer deems necessary and is relying solely upon Buyer's own inspections, investigations, and analyses in entering into this Agreement. Notwithstanding the foregoing, nothing in this Section shall relieve Seller of liability for fraud or intentional misrepresentation."

"Seller warrants that the Equipment shall be free from defects in materials and workmanship under normal use and service for a period of 12 months from the date of delivery (the 'Warranty Period'). Seller further warrants that it has good title to the Equipment, free and clear of all liens and encumbrances. EXCEPT FOR THE EXPRESS WARRANTIES SET FORTH IN THIS SECTION 9, SELLER MAKES NO OTHER WARRANTY OF ANY KIND, EXPRESS OR IMPLIED, AND SPECIFICALLY DISCLAIMS THE IMPLIED WARRANTIES OF MERCHANTABILITY AND FITNESS FOR A PARTICULAR PURPOSE. Buyer's exclusive remedy for breach of the express warranty shall be repair or replacement of the defective Equipment, at Seller's sole option, provided that Buyer notifies Seller in writing of the defect within the Warranty Period and returns the Equipment to Seller's facility at Buyer's expense."

Common Contract Types

Negotiation Playbook

Key Drafting Notes

Common Pitfalls

Jurisdiction Notes

United States: Warranty disclaimer law in the US is governed primarily by UCC Article 2 (for goods), with significant overlays from the Magnuson-Moss Warranty Act (for consumer products with written warranties), the FTC's Rule on Pre-Sale Availability of Written Warranty Terms, and state consumer protection statutes. The UCC's requirements under § 2-316 - mentioning "merchantability," conspicuousness, and the "as is" safe harbor - are well-established but heavily litigated. Key variations exist among states: some states (e.g., Mississippi, Kansas, West Virginia) prohibit the disclaimer of implied warranties in consumer transactions by statute, regardless of how the disclaimer is drafted. In software transactions, the applicability of UCC Article 2 to software licenses (as opposed to software sold as goods) remains unsettled, with courts in different jurisdictions reaching different conclusions. The proposed Uniform Computer Information Transactions Act (UCITA), which would have created a comprehensive framework for software warranties, was adopted by only two states (Maryland and Virginia) before the project was withdrawn.

United Kingdom: English law takes a significantly more restrictive approach to warranty disclaimers than the US. In consumer contracts, the Consumer Rights Act 2015 (CRA) renders most attempts to exclude or restrict implied terms (including satisfactory quality, fitness for purpose, and conformity with description) unenforceable. Traders cannot contract out of these statutory protections, and any attempt to do so is void. In B2B contracts, the Unfair Contract Terms Act 1977 (UCTA) subjects exclusion clauses to a "reasonableness" test - the clause is enforceable only if it was a fair and reasonable term to include, having regard to the circumstances known or contemplated by the parties at the time of contracting. Factors relevant to reasonableness include the relative bargaining power of the parties, whether the buyer received an inducement to accept the clause, and whether the buyer knew or should have known of the exclusion. The Sale of Goods Act 1979, as amended, implies warranties of satisfactory quality and fitness for purpose that can be excluded in B2B contracts only if the exclusion satisfies the UCTA reasonableness test. In practice, broad "as is" disclaimers that are routinely enforced in US commercial contracts may be unenforceable in the UK even between sophisticated commercial parties.

European Union and Civil Law Jurisdictions: EU consumer protection directives - particularly the Consumer Sales Directive (1999/44/EC, replaced by the Sale of Goods Directive 2019/771) and the Digital Content Directive (2019/770) - establish mandatory warranty protections for consumers that cannot be disclaimed by contract. These directives require a minimum 2-year legal guarantee period for goods and digital content, during which the seller bears the burden of proving that a defect did not exist at the time of delivery. Member state implementations vary in the details but are uniformly consumer-protective. In B2B transactions, civil law jurisdictions generally allow warranty disclaimers but subject them to good faith requirements and, in some cases, prohibit the disclaimer of warranties for latent defects known to the seller. Under German law (BGB §§ 434–442), warranty disclaimers in standard-form contracts (AGB) are subject to strict scrutiny under §§ 305–310 BGB, and blanket disclaimers of merchantability are unlikely to survive judicial review. French law (Articles 1641–1649 of the Code Civil) distinguishes between professional sellers (who are presumed to know of latent defects and cannot disclaim liability for them) and non-professional sellers (who may disclaim). In cross-border transactions, the CISG (United Nations Convention on Contracts for the International Sale of Goods) implies a warranty of conformity under Article 35 that can be excluded by agreement, but the exclusion must be clear and should specifically reference the CISG to be effective.

Related Clauses

This glossary entry is provided for informational and educational purposes only and does not constitute legal advice. Warranty disclaimer requirements vary significantly by jurisdiction, transaction type, and the nature of the goods or services involved. Consult qualified legal counsel before drafting, negotiating, or relying on any warranty disclaimer provision.