Generally speaking, a warranty in the context of a software license is a stipulation or promise that the subject of the license is or shall be as stated within the terms of the license. Moreover, the warranty agrees to protect the recipient if that fact is or becomes untrue. There are of course carve-outs from a warranty provision, including that the warranting party disclaims liability for reliance on the operation and functioning of the underlying software.

This issue recently arose in irth Solutions v. S&S Utilities Engineering¸ No. 19-cv-613-FPG 2019 WL5694247 (W.D.N.Y. Nov. 4, 2019). In this case, the U.S. District Court for the Western District of New York confronted a dispute about the preeminence of a specific warranty provision in a license over the general warranties the licensee alleged were included in other provisions therein. This column deals with the resolution of this dispute in favor of the licensor, on grounds that the warranty provision and related risk acknowledgment provision exculpated the licensor for liability, irrespective of the potential hints at warranties included elsewhere in the license. den

Facts and Procedural History