Warranties and indemnities in software licence agreements
Produced in partnership with Tom Bohills of Red Deer and John Benjamin of DWF
Warranties and indemnities in software licence agreements

The following TMT guidance note Produced in partnership with Tom Bohills of Red Deer and John Benjamin of DWF provides comprehensive and up to date legal information covering:

  • Warranties and indemnities in software licence agreements
  • Warranties
  • Indemnities

This Practice Note considers the key legal and commercial issues that can arise in a business-to-business context when drafting and negotiating warranties and indemnities in relation to both standard and off-the-shelf software licences as well as more complex arrangements.

For guidance on other key issues affecting software licences, including limitations on liability arising under warranty or indemnity claims, see Practice Note: Key issues in software licence agreements.

See also the following guidance on dispute resolution:

  1. Pre-action: general—overview

  2. Starting a claim—overview

  3. Contractual breach damages and remedies—overview

For guidance on warranties and indemnities specifically in the context of cloud arrangements, including software as a service (SaaS), see Practice Note: Cloud computing—key legal issues.

Warranties

A warranty is a contractual promise (see Bentsen v Taylor & Sons). In most commercial agreements including software licences, warranties are promises that certain facts or statements of affairs are correct, but they may also be promises to do something in the future or ensure that something does not happen.

There are significant differences in market practice between standard and custom software when it comes to the extent of warranty protection that is typically offered. While the suppliers of mass-market software offer very limited warranty protection (or in some cases, none at all, merely saying that the software is provided ‘as is’), customers with leverage or those procuring bespoke software are likely