Warranties: AS IS (no warranties)

Warranties: AS IS (no warranties)

Ordinarily, an NDA does not require the discloser to make any warranties regarding the accuracy, completeness, or usefulness of the information disclosed. Rather, the parties can agree that information is disclosed on an “AS IS” basis:

Exemplar N27A-1

The parties specifically disclaim any express or implied warranty as to the Confidential Material and provide such Confidential Material solely on an “as is” basis.

Or as the following exemplars illustrate, the parties can also agree to affirmatively waive or expressly disclaim specific warranties:

Exemplar N27A-2

None of the Information which may be disclosed or exchanged by the Parties shall constitute any representation, warranty, assurance, guarantee or other inducement by either Party to the other of any kind, and, in particular, with respect to the quality, correctness, fitness for purpose or the non-infringement of trade marks, patents, copyrights or any other intellectual property rights, or other rights of third parties.

Exemplar N27A-3

Except as may otherwise be expressly stated herein, all Confidential Information is delivered on an “as is” basis and all representations and warranties, express or implied, are hereby disclaimed. Without limitation to the foregoing, the Discloser disclaims all representations and warranties with respect to the following matters: (1) that the Confidential Information is accurate or reliable for any purpose whatsoever; (2) that the use of the Confidential Information does not infringe any intellectual property rights held by third parties; and (3) the implied warranties of merchantability and fitness for a particular purpose.

Alternatively, rather than try to disclaim warranties, a party can simply refuse to accept any liability regarding the accuracy or use of disclosed information:

Exemplar N27A-4

Discloser shall not have any liability or responsibility for errors or omissions in, or any decisions made by Recipient in reliance on, any Information disclosed under this Agreement.

The following exemplar illustrates one exception to the no-warranty approach, by imposing a duty to disclose known defects:

Exemplar N27A-5

PROPRIETARY INFORMATION IS PROVIDED “AS IS” WITH ALL FAULTS. IN NO EVENT SHALL THE DISCLOSING PARTY BE LIABLE FOR THE ACCURACY OR COMPLETENESS OF THE PROPRIETARY INFORMATION. However, a Disclosing Party has a duty to notify the Receiving Party of any known defects if the Receiving Party is expected to rely on such information. None of the Proprietary Information disclosed by the parties constitutes any representation, warranty, assurance, guarantee or inducement by either party to the other with respect to the infringement of trademarks, patents, copyrights; any right of privacy; or any rights of third persons.