All available in:
- Warranty exclusion is a contractual agreement to restrict or exclude statutory warranty rights.
- The legal basis can be found in §§ 434 ff. BGB and §§ 305 ff. BGB for general terms and conditions.
- In the B2C area, warranty exclusions in general terms and conditions are generally not permitted, in the B2B area only to a limited extent.
- Warranty exclusions are particularly relevant in the IT and media industry due to the complexity of the product.
- Careful documentation can help to avoid warranty disputes.
- Companies should consider warranty exclusions as part of a quality assurance strategy.
- Well-designed warranty regulations promote trusting business relationships in a rapidly changing industry.
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. sections 633 et seq. BGB: Contains the warranty provisions for contracts for work and services.
3. sections 305 et seq. BGB: Regulates 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, an exclusion of warranty 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 concealment: If a defect is fraudulently concealed, an exclusion of warranty 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: With 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 services.
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: Specific replacement services can be agreed instead of the statutory warranty rights.
Practical considerations:
1. risk distribution: An exclusion of warranty shifts the risk of defects to the customer, which can make contract negotiations more difficult.
2. customer relationship: Excessive exclusions can impair customer confidence and put a strain on the business relationship.
3. industry standard: In some areas of the IT and media industry, certain warranty exclusions are customary and expected by customers.
4. insurability: The possibility of insuring against warranty claims should be included in the considerations.
5. documentation: Careful documentation of the provision of services 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: Different legal standards can lead to problems with cross-border contracts.
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 quality assurance and customer relationship management strategy. 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 regulations can help to create legal certainty and build long-term, trusting business relationships.
