A warranty disclaimer is the clause that switches off the implied promises the law would otherwise read into a deal. By default, contracts for goods carry implied warranties of merchantability and fitness for a particular purpose; a disclaimer removes them and limits the seller to whatever express warranties it chose to give. The catch is that the disclaimer only works if it is conspicuous and uses the right words, and even then some warranties cannot be disclaimed at all.
Reviewed and corrected on 12 October 2026. This is general information, not legal advice; check the cited statute or opinion before relying on it. UCC text is the uniform text as published by Cornell's Legal Information Institute, and your state's version may differ. The negotiating positions on this page are drafting practice, not legal rules.
TL;DR
- A warranty disclaimer removes implied warranties (merchantability, fitness for a particular purpose) and confines the buyer to the seller's express warranties. "As-is" is the strongest common form.
- To disclaim implied warranties in a sale of goods, the uniform UCC text requires the disclaimer to be conspicuous (written so a reasonable person ought to have noticed it), and disclaiming merchantability requires language that mentions merchantability. Words like "as is" and "with all faults" can also work.
- You cannot disclaim everything. A disclaimer is read alongside the express warranties you made (UCC 2-316(1)), it does not clear fraud (California Civil Code 1668 is an example), and consumer-warranty statutes limit disclaimers for consumer products.
- Pair the disclaimer with a tight express warranty and a limitation of liability cap. The disclaimer sets what you promise; the cap sets what a breach can cost.
- The most common review miss is a disclaimer buried in lowercase boilerplate, which risks failing the conspicuousness test and leaving the implied warranties alive.
What a warranty disclaimer actually does
A disclaimer resets the default risk allocation the law imposes. Three things are happening.
1. It strips implied warranties. Under sales law, goods come with an implied warranty of merchantability (they are fit for ordinary use) and, where the seller knows the buyer's purpose, fitness for a particular purpose. The disclaimer removes these so the buyer cannot sue for them.
2. It draws the line at the express warranty. After a disclaimer, the only promises that remain are the express warranties the seller chose to give (for example, "the Services will perform materially as documented for 90 days"). Everything outside that line is the buyer's risk.
3. It must be conspicuous to work. The UCC requires an implied-warranty disclaimer to be visible: for merchantability the language "must mention merchantability and in case of a writing must be conspicuous," and a fitness exclusion "must be by a writing and conspicuous" (2-316(2)). A disclaimer hidden in lowercase mid-paragraph text risks being held ineffective, leaving the implied warranties in place as if the clause were never written.
Why it matters: the dollars at stake
Consider a buyer that pays $500,000 for industrial equipment to run a specific production line. The equipment works in general but cannot handle that line's tolerances, and the buyer loses $400,000 in scrapped output.
This is an illustrative example. The outcome depends on the disclaimer.
- With no valid disclaimer, the implied warranty of fitness for a particular purpose can apply (if the seller knew the intended use and the buyer relied on the seller's skill or judgment to select suitable goods), and the buyer has a claim for the loss.
- With a conspicuous "as-is" disclaimer that names merchantability and disclaims fitness, those implied warranties are gone, and the buyer is limited to any express warranty the seller actually gave.
Same equipment, same loss. A properly drafted, conspicuous disclaimer can be the difference between a $400,000 claim and none. And a disclaimer the seller thought it had, but which a court finds was not conspicuous, may leave the buyer with the claim anyway.
Who wants what
| Seller / supplier | Buyer / customer | |
|---|---|---|
| Implied warranties | Disclaim all, "as-is" | Keep merchantability and fitness |
| Express warranty | Narrow, short, single remedy | Broad, longer, with real remedies |
| Conspicuousness | Capitalized, but otherwise minimal | Wants the disclaimer clear (and, ideally, weak) |
| Statutory / consumer warranties | Disclaim to the maximum allowed | Preserve non-waivable protections |
| Service vs goods | "Services provided as-is" | A performance warranty with a cure |
| Remedy for breach | Repair or replace, sole remedy | Repair, replace, refund, or damages |
The pattern: the seller wants to give one narrow express warranty and disclaim the rest; the buyer wants the implied warranties preserved or a meaningful express warranty in their place.
Market-standard language
A typical disclaimer in a software or goods agreement reads close to this:
DISCLAIMER OF WARRANTIES.
EXCEPT FOR THE EXPRESS WARRANTIES SET FORTH IN SECTION [X], THE
SERVICES AND ANY DELIVERABLES ARE PROVIDED "AS IS" AND "AS AVAILABLE,"
AND VENDOR DISCLAIMS ALL OTHER WARRANTIES, WHETHER EXPRESS, IMPLIED,
STATUTORY, OR OTHERWISE, INCLUDING ALL IMPLIED WARRANTIES OF
MERCHANTABILITY, FITNESS FOR A PARTICULAR PURPOSE, TITLE, AND
NON-INFRINGEMENT. VENDOR DOES NOT WARRANT THAT THE SERVICES WILL BE
UNINTERRUPTED, ERROR-FREE, OR SECURE.
The capitalization can do legal work. To disclaim implied warranties in a sale of goods the uniform UCC text requires the disclaimer to be conspicuous, and disclaiming merchantability requires language that mentions merchantability. UCC 1-201(b)(10) defines "conspicuous" as "so written, displayed, or presented that a reasonable person against which it is to operate ought to have noticed it," lists a heading in capitals among the examples, and leaves the decision to the court. The "except for the express warranties in Section X" carve-back keeps the affirmative promises the seller actually wants to stand behind.
The negotiation: standard, fallback, walk-away
The disclaimer is half of a pair; negotiate it against the express warranty.
| Issue | Opening position (seller) | Common compromise | Walk-away (buyer) |
|---|---|---|---|
| Implied warranties | Disclaim all, including title and non-infringement (title needs specific language, UCC 2-312(2)) | Disclaim merchantability and fitness; keep title and non-infringement | No disclaimer; the implied warranties apply |
| Express warranty | "Materially as documented," 30 days | Performance warranty, 90 days, with cure | A robust warranty with refund and damages |
| Remedy | Repair or replace, sole and exclusive | Repair, replace, or refund the fees for the period | Repair, replace, refund, plus damages up to the cap |
| "As-is" scope | Whole agreement provided as-is | As-is for beta or free components only | No as-is anywhere |
| Service availability | No uptime warranty | Uptime warranty in a separate SLA | Uptime warranty with credits |
The usual landing zone keeps a narrow set of implied warranties (title and non-infringement, which buyers care about most) and replaces merchantability and fitness with a defined express performance warranty plus a cure remedy.
Common carve-outs / variations
Disclaimers vary by what they keep and what they cannot reach:
- As-is / where-is sale. The strongest form, common in used-goods, asset, and beta deals. Under UCC 2-316(3)(a), "as is," "with all faults" or other language that calls the buyer's attention to the exclusion removes the implied warranties "unless the circumstances indicate otherwise." Whether "where-is" language has the same effect was not verified. The title warranty can be excluded only by "specific language" (2-312(2)), so name it if you mean to exclude it.
- Keep title and non-infringement. Buyers often accept disclaiming merchantability and fitness but insist on warranties of title (the seller owns it) and non-infringement (it does not violate third-party IP).
- Express-warranty carve-back. "Except for the express warranties in Section X" preserves the affirmative promises the seller wants to keep while disclaiming the rest.
- Buyer examination. Where the buyer has examined the goods (or a sample or model) before contracting "as fully as he desired" or has refused to examine them, there is no implied warranty as to defects an examination ought in the circumstances to have revealed (2-316(3)(b)). Sellers of used or shown goods lean on this; buyers should limit any acknowledgment of inspection to what they actually examined.
- Statutory and consumer floors. Federal and state consumer-warranty statutes limit disclaimers for consumer products (described below). The clause usually adds "to the extent permitted by law."
- Exclusive remedy plus disclaimer. The disclaimer pairs with a "repair or replace" exclusive remedy; if that remedy fails of its essential purpose, the disclaimer or the damages cap can be at risk.
A buyer-protective fallback often reads:
Vendor disclaims the implied warranties of merchantability and fitness
for a particular purpose, but warrants that it has the right to provide
the Services and that the Services do not infringe any third-party
intellectual property right. The foregoing non-infringement warranty
is in addition to Vendor's indemnification obligations in Section [X].
Jurisdiction and enforceability notes
Warranty disclaimers are generally enforceable between businesses, but with real limits:
- Conspicuousness and the words required. Under the UCC section 2-316(2), to exclude the implied warranty of merchantability "the language must mention merchantability and in case of a writing must be conspicuous, and to exclude or modify any implied warranty of fitness the exclusion must be by a writing and conspicuous." Section 2-316(3)(a) adds that, "unless the circumstances indicate otherwise, all implied warranties are excluded by expressions like 'as is', 'with all faults' or other language which in common understanding calls the buyer's attention to the exclusion of warranties and makes plain that there is no implied warranty."
- Title. The warranty of title "will be excluded or modified only by specific language or by circumstances which give the buyer reason to know that the person selling does not claim title in himself" (2-312(2)). The merchant's warranty against infringement applies "[u]nless otherwise agreed" (2-312(3)). Whether general "as is" wording alone counts as specific language about title was not verified in our October 2026 review, so a seller that wants to exclude title and non-infringement should say so by name, as the model clause above does.
- Examination and trade usage. Section 2-316(3)(b) removes implied warranties as to defects an examination ought in the circumstances to have revealed, where the buyer examined the goods "as fully as he desired" or refused to examine them. Section 2-316(3)(c) lets course of dealing, course of performance, or usage of trade exclude or modify an implied warranty even without express disclaimer language.
- Express warranties. Section 2-316(1) tells courts to construe words creating an express warranty and words negating or limiting it as consistent "wherever reasonable," and makes the negation or limitation "inoperative to the extent that such construction is unreasonable." In practice a disclaimer that contradicts an express warranty the seller gave is likely to give way, though the parol evidence rule in section 2-202 can limit what extrinsic evidence of the warranty a court hears. Do not promise something and disclaim it in the same breath.
- Unconscionability. Under UCC section 2-302(1), a court that finds a contract or clause "unconscionable at the time it was made" may refuse to enforce it, enforce the rest, or limit the clause. What a party must show is a matter of state case law, which we did not survey. Conspicuousness alone does not save a disclaimer a court finds oppressive.
- Consumer protections. Under the federal Magnuson-Moss Warranty Act (15 U.S.C. 2308), "No supplier may disclaim or modify ... any implied warranty to a consumer with respect to such consumer product if (1) such supplier makes any written warranty to the consumer with respect to such consumer product, or (2) at the time of sale, or within 90 days thereafter, such supplier enters into a service contract with the consumer which applies to such consumer product." Implied warranties "may be limited in duration to the duration of a written warranty of reasonable duration, if such limitation is conscionable and is set forth in clear and unmistakable language and prominently displayed on the face of the warranty." A disclaimer in violation "shall be ineffective for purposes of this chapter and State law." The Act turns on the product, not the buyer: a "consumer product" is tangible personal property "normally used for personal, family, or household purposes" (15 U.S.C. 2301(1)), and the FTC's rule says products used for both personal and commercial purposes come within the definition (16 C.F.R. 700.1(a)). So a business that buys a consumer product is not automatically outside the Act. States add their own rules. Massachusetts makes language that attempts to exclude or modify the implied warranties of merchantability and fitness for consumer goods and services unenforceable (Mass. Gen. Laws ch. 106, section 2-316A(2)), and unenforceable for injury to the person in any sale of goods and services (section 2-316A(4)). Other states were not surveyed.
- Failure of essential purpose. If the exclusive remedy fails (a repair-or-replace promise the seller cannot deliver), UCC 2-719(2) provides that "remedy may be had as provided in this Act," and the effect on the damages cap is tested alongside the limitation of liability clause. Courts disagree on whether a consequential-damages exclusion survives (compare Chatlos Systems, Inc. v. National Cash Register Corp., 635 F.2d 1081 (3d Cir. 1980), with RRX Industries, Inc. v. Lab-Con, Inc., 772 F.2d 543 (9th Cir. 1985)).
This page is general information, not legal advice. Whether a disclaimer works depends on the governing law, whether goods or services are sold, and the facts, so check the controlling law before relying on one.
Review checklist: red flags to catch
- The disclaimer is lowercase and buried, failing the conspicuousness requirement.
- It tries to disclaim merchantability without using the word "merchantability."
- The disclaimer contradicts an express warranty the seller gave elsewhere in the contract.
- No carve-back for title and non-infringement, which buyers usually need.
- An "as-is" label slapped on a paid, production deal where the buyer expected a performance warranty.
- A disclaimer paired with a "repair or replace" sole remedy with no fallback if that remedy fails.
- The disclaimer ignores consumer-warranty rules that apply to the transaction (Magnuson-Moss, state consumer-warranty acts).
- A broad acknowledgment that the buyer "inspected and accepts" the goods, which the seller may cite for a section 2-316(3)(b) examination defense beyond what was actually reviewed.
- A disclaimer so one-sided it leaves the buyer no remedy at all, inviting an unconscionability challenge that can take the whole clause down.
How it interacts with other clauses
A disclaimer rarely stands alone; read it with:
- Representations and warranties: the disclaimer marks where the affirmative warranties stop.
- Limitation of liability: both must be conspicuous, and a failed exclusive remedy can put the cap at risk too.
- Indemnification: a non-infringement warranty often pairs with an IP indemnity.
- Service level agreement: the uptime warranty the disclaimer would otherwise sweep away usually lives in the SLA.
For the full review process, see the in-house contract review playbook and, for SaaS deals, how to review a SaaS agreement.
FAQ
What is a warranty disclaimer? It is a clause that removes the implied warranties the law would otherwise read into a contract (merchantability and fitness for a particular purpose) and limits the buyer to the seller's express warranties. "As-is" is the strongest common form, signaling no warranties beyond any expressly stated.
Which implied warranties can you disclaim? In a sale of goods that is not a consumer sale you can disclaim merchantability and fitness for a particular purpose if the language meets UCC 2-316. Title can be excluded only by specific language (2-312(2)), and the merchant's warranty against infringement applies "[u]nless otherwise agreed" (2-312(3)). A disclaimer is read alongside the express warranties you gave, and consumer-warranty statutes limit disclaimers for consumer products.
Why do warranty disclaimers have to be in all capitals? They do not have to be, but the UCC requires an implied-warranty disclaimer in a sale of goods to be conspicuous, meaning written so that a reasonable person ought to have noticed it. UCC 1-201(b)(10) lists a heading in capitals, or language in larger or contrasting type, font or color, as examples, and the court decides. Capitalization or bold is a common way to meet that standard. A disclaimer buried in lowercase boilerplate risks being held ineffective, leaving the implied warranties in place.
What does "as-is" mean in a contract? "As is" (or "with all faults") tells the buyer it takes the goods or services in their current condition with no implied warranties. In a goods sale, UCC 2-316(3)(a) says such language excludes the implied warranties unless the circumstances indicate otherwise, but buyers should still confirm whether title and non-infringement, or any express warranty, survive.
Can you disclaim a warranty you already made? Not reliably. UCC 2-316(1) makes a negation or limitation "inoperative to the extent that" reading it as consistent with the express warranty "is unreasonable," so a disclaimer that contradicts an express warranty the seller gave is likely to give way. Do not promise the product performs as documented and disclaim that promise in the same agreement.
What happens if the disclaimer is not conspicuous? A court can hold it ineffective for the implied warranties it tried to remove, which leaves those warranties alive as if the clause were never written. That is why a non-conspicuous disclaimer is one of the most expensive drafting misses for a seller.
Does a warranty disclaimer apply to services? Sellers commonly disclaim warranties for services too, often as "services provided as is" alongside a narrow express performance warranty. The implied-warranty rules in UCC Article 2 are written for goods, and implied-warranty rules for services come from common law or other statutes, which we did not survey. Whether a particular disclaimer works for services depends on the governing law.
Can you disclaim implied warranties in a consumer contract? Often not. Under the federal Magnuson-Moss Warranty Act, a supplier that gives a written warranty on a consumer product, or sells a service contract on it at the time of sale or within 90 days, cannot disclaim implied warranties; it may only limit their duration to the written warranty's term, and only in clear and unmistakable language prominently displayed on the face of the warranty. Some states go further (Massachusetts makes disclaimers of the implied warranties of merchantability and fitness for consumer goods unenforceable). The Act turns on the type of product, so it can reach a business buyer of a consumer product.
Does inspecting the goods waive the implied warranties? It can. Under UCC section 2-316(3)(b), if the buyer has examined the goods (or a sample or model) before contracting "as fully as he desired" or has refused to examine them, there is no implied warranty as to defects an examination ought in the circumstances to have revealed. A signed acknowledgment that the buyer "inspected and accepts" the goods can broaden that defense, so buyers should tie any such statement to what they actually looked at.
What is the difference between a warranty disclaimer and a limitation of liability? The disclaimer controls what the seller promises: it strips implied warranties so there is nothing to breach. The limitation of liability controls what a breach can cost: it caps damages and carves out consequential losses if a promise that survives is broken. Sellers use both because they work differently, and a failed exclusive remedy can put either at risk.
Can a warranty disclaimer be thrown out even if it is in all capitals? Yes. Conspicuousness is necessary but not sufficient. A disclaimer can still give way to an express warranty it contradicts (2-316(1)), a consumer-warranty statute such as Magnuson-Moss, a fraud claim (California Civil Code 1668 declares contracts exempting a party from its own fraud against public policy), or a finding that the clause was unconscionable when made (UCC section 2-302).
