Where these clauses commonly appear
- Software and SaaS terms of service
- Used goods and equipment sales
- Consulting and services agreements
- Product sale agreements
- Real estate "as is" sale contracts
Sellers and service providers use these clauses to limit their exposure to claims that a product or service didn’t work as the buyer expected.
The two implied warranties this clause usually disclaims
Merchantability
An implied promise that a product is fit for the ordinary purposes it's used for. Disclaiming this means no such promise is being made.
Fitness for a particular purpose
An implied promise that a product will work for a specific purpose the seller knew about. This is separately disclaimable.
What a disclaimer usually can't remove
Warranty disclaimers generally cannot eliminate express warranties actually made elsewhere in the same contract or in marketing materials, and many states restrict or ban disclaiming warranties on consumer goods entirely, particularly for personal, family, or household use.
Fraud and intentional misrepresentation typically survive any disclaimer regardless of how broadly it's written.
The part most guides skip: check for conflicting express warranties elsewhereA broad “as is” disclaimer can be undercut by a specific promise made elsewhere in the same contract, in a sales brochure, or verbally during negotiation. Courts often find that a clear, specific express warranty survives even next to a broad general disclaimer, so it’s worth checking the rest of the document, and any related materials, for language that might contradict the disclaimer.
Questions to ask before you sign
- Does this disclaim merchantability, fitness for purpose, or both?
- Are there any express warranties made elsewhere in the contract or in marketing materials?
- Does my state restrict warranty disclaimers for this type of purchase?
- Is this a consumer purchase, where disclaimers may be more limited by law?
- Does the disclaimer attempt to cover fraud or intentional misrepresentation?
Sources
- Uniform Commercial Code § 2-316 — exclusion or modification of warranties
- Federal Trade Commission — warranty disclosure rules for consumer products
This is general information, not legal advice. Docly helps you find and understand what a document actually says. It does not tell you whether a clause is enforceable where you live, and it is not a substitute for a lawyer. For a decision with real money attached, get advice from an attorney licensed in your state.
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