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Richard Raysman and Peter Brown

The warranty is among the most essential terms of a software license, as the provision often concerns the functionality and capability of the software. In essence, this is the promise of the licensor as to what the software will or will not do. Many warranties are the subject of concerted negotiations, but often the parties revert to boilerplate as part of a general tendency to forget the importance of the provision in favor of business terms such as price and product line. A licensor typically seeks to limit what it promises, while a licensee regularly seeks to establish that the licensor possesses good and marketable title in the software, that the software will function, and that the software is without any code susceptible to viruses.

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"If a legal project goes wrong, human performance is pretty much the only factor. That s not to say that the lawyer is the only human involved, or that chance, randomness and capriciousness can t play a part. But even so, if there are failings they won t be mechanical. They ll be human, and usually they ll be on us, the lawyers. This is why we need to talk about mistakes."

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