Warranties and representations: what are you promising?
Warranties and representations are factual promises in a contract. Learn the difference, what 'as is' disclaimers do, how long warranties last, and which promises to push back on.
The short answer
A representation is a statement of fact you promise is true at signing ("the software does not infringe anyone's IP"). A warranty is a promise that something will be true or will be fixed ("the software will work as documented for 12 months"). If either turns out false, the other side can claim damages — and with warranties, often terminate. These clauses convert sales talk into legal liability.
Why these clauses matter more than the price
Most of a contract describes what will happen. Warranties and representations describe what is true. When a deal goes wrong, the first question a lawyer asks is: what did each side promise was true?
A warranty breach claim is usually easier to win than a negligence claim — you only have to show the promise was broken, not that anyone was careless. That is why these short, boring paragraphs carry so much of the contract's real risk.
Common warranties you will see
In services and software deals you will typically see promises that the work will be performed professionally, that it will not infringe third-party IP, that the signatory has authority to sign, and that the product will conform to its documentation for a period.
Each of those is a potential lawsuit. Read them as a list of ways you could owe money, and check each one is something you can actually stand behind.
- Authority — both sides are allowed to sign.
- Non-infringement — the work does not copy anyone else's IP.
- Conformity — the product does what the documentation says.
- Professional standards — work performed with reasonable skill and care.
- Compliance with law — the product or service meets applicable regulations.
The 'as is' disclaimer
Most commercial contracts end with an ALL-CAPS paragraph disclaiming every warranty not written in the contract: no implied warranties of merchantability, no fitness for a particular purpose, no promises from the sales pitch.
The effect: if it is not written in the contract, it was never promised. If the salesperson swore the software handles your use case, that promise is legally worthless unless it is in the document. Get the promises that made you sign written in.
How long do warranties last?
A conformity warranty usually has a time limit — 30, 90, or 365 days — and an exclusive remedy, often "repair, re-perform, or refund". That means for that category of problem, a refund may be all you can ever claim, even if the failure cost you far more.
Some warranties survive termination: authority, non-infringement, and confidentiality promises often outlive the contract itself. Check the survival clause.
Sample clause language
Illustrative wording, written for this guide — not copied from any real contract.
Vendor warrants that the Services will be performed in a professional and workmanlike manner, and that the Software will materially conform to its documentation for ninety (90) days from delivery. Customer's exclusive remedy for breach of this warranty is re-performance or a refund of fees paid for the non-conforming Services.
Time-limited, with a defined remedy — typical and generally acceptable if the product is genuinely standard.
THE SERVICES ARE PROVIDED "AS IS". VENDOR MAKES NO WARRANTIES OF ANY KIND, EXPRESS OR IMPLIED, INCLUDING ANY WARRANTY OF MERCHANTABILITY, FITNESS FOR A PARTICULAR PURPOSE, OR NON-INFRINGEMENT, WHETHER ARISING BY LAW, COURSE OF DEALING, OR OTHERWISE.
You get no promises at all — not even that the product does what its own website says. Ask for at least a basic conformity warranty.
Red flags to look for
- A blanket "as is" disclaimer paired with big promises in the sales materials.
- Warranty periods so short (e.g. 10 days) that defects cannot realistically surface.
- An exclusive remedy of "repair or refund" for a product your business depends on.
- You warranting things you cannot control, like your customer's data being legal.
- Survival language keeping your warranties alive forever while theirs expire in days.
What to ask for
- Get the specific promises that made you buy written into the warranty section.
- Extend the conformity warranty to at least 90 days for software.
- Carve IP infringement out of the exclusive remedy — it should be covered by the indemnity.
- Add a knowledge qualifier ("to Vendor's knowledge") where you cannot verify a fact absolutely.
- Make mutual the promises both sides can honestly give, like authority and compliance with law.
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Frequently asked questions
What happens if a warranty is breached?
The innocent side can claim damages — usually the cost of fixing the problem — and sometimes terminate. The contract's exclusive-remedy and liability-cap clauses decide how much they can actually recover.
Are verbal promises from the salesperson enforceable?
Almost never, because the disclaimer and entire-agreement clauses erase them. If a promise matters, write it into the contract or an attached statement of work.
What does 'to the best of our knowledge' mean in a representation?
It softens an absolute promise into a promise about what you actually know. Useful for facts you cannot verify perfectly, but beware — "knowledge" sometimes includes what you should have known after reasonable checks.
Related guides
This guide is general educational information about how these clauses usually work. It is not legal advice, and contract law differs by jurisdiction. For a decision that matters, speak to a qualified lawyer.