Warranty exclusion

A warranty disclaimer is a contractual agreement that excludes or limits the statutory warranty rights of the buyer or client in whole or in part. In the IT and media industry, the handling of warranty exclusions is of particular importance due to the complexity of the products and services.

Legal basis:

1. §§ 434 ff. BGB: Regulates the statutory warranty rights in the purchase contract. 2. §§ 633 ff. BGB: Contains the warranty provisions for contracts for work and services. 3. §§ 305 ff. BGB: Governs the use of general terms and conditions (GTC), which often contain warranty exclusions.

Admissibility and limits:

1. individual agreements: In individually negotiated contracts between entrepreneurs, a warranty exclusion is generally permissible. 2. control of general terms and conditions: Warranty exclusions in general terms and conditions are subject to strict restrictions:
– In the B2C area, warranty exclusions in general terms and conditions are generally inadmissible (Section 309 No. 8 b) aa) BGB).
– In the B2B area, they are only possible to a limited extent and must not unreasonably disadvantage the contractual partner (Section 307 BGB). 3. fraudulent intent: If a defect is fraudulently concealed, a warranty exclusion is always invalid. 4. warranty: If a warranty has been assumed, the warranty for the warranty case cannot be excluded.

Special features in the IT and media industry:

1. software contracts: Due to the complexity of software, warranty exclusions are particularly relevant here, but also particularly controversial. 2. open source software: Extensive liability and warranty exclusions are common and often permissible here. 3. cloud services: In SaaS contracts, specific service level agreements (SLAs) are often agreed that modify the warranty. 4. media productions: In the case of creative services, it is often difficult to distinguish between defective and non-defective performance.

Design options:

1. limitation instead of exclusion: Instead of a complete exclusion, a limitation of the warranty to certain aspects or periods can be agreed. 2. staggering: The warranty can be staggered depending on the severity of the defect or the duration of the contractual relationship. 3. obligations to cooperate: The customer’s obligations to cooperate can be defined, non-compliance with which leads to the exclusion of the warranty. 4. replacement services: Instead of the statutory warranty rights, specific replacement services can be agreed.

Practical considerations:

1. risk distribution: A warranty exclusion shifts the risk of defects to the customer, which can make contract negotiations more difficult. 2. customer relationship: Excessive exclusions can affect customer trust and put a strain on the business relationship. 3. industry standard: In some areas of the IT and media industry, certain warranty exclusions are common and expected by customers. 4. insurability: The possibility of insuring against warranty claims should be included in the considerations. 5. documentation: Careful documentation of service provision and acceptance can help to avoid warranty disputes.

Legal risks:

1. ineffectiveness: Excessively far-reaching or inappropriate warranty exclusions can be declared ineffective by the courts. 2. transparency requirement: Warranty exclusions must be formulated clearly and comprehensibly in order to be effective. 3. international contracts: In cross-border contracts, different legal standards can lead to problems.

Conclusion:

Warranty exclusions are an important risk management tool in the IT and media industry, but must be used with caution. They require careful consideration between the protection of one’s own company and the interests of the customer, as well as precise legal drafting. Companies should consider warranty exclusions as part of a comprehensive strategy for quality assurance and customer relationship management. Instead of relying solely on legal safeguards, they should focus primarily on the quality of their products and services and maintain transparent communication with their customers. In an industry characterized by rapid technological change and complex products, well-designed and fairly negotiated warranty provisions can help create legal certainty and build long-term, trusting business relationships.