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

Plaintiff irth Solutions (plaintiff) provided software that helped utility entities manage notifications of excavation projects that will impact their property (the software). The notifications are known as "dig tickets." When a utility receives a dig ticket, it must delineate the location of its assets at an excavation site in order to protect assets and avoid interruption of services. To deal with dig tickets, utilities hire "contract locators" to identify and mark locations responsive to the ticket. These contract locators in turn utilize products like the Software to manage and process dig tickets.

Defendant S&S Utilities Engineering (defendant) is a contract locator. In August 2017, defendant licensed the software (the license) from plaintiff's predecessor in interest, Bytronics. The license set forth that Bytronics would provide defendant with software support within specific time periods. The support also entailed correcting any defects in the software. In November 2017, plaintiff acquired Bytronics and was assigned the license.