Section 22-406 - Disclaimer or modification of warranty.
§ 22-406. Disclaimer or modification of warranty.
(a) Construction of words or conduct.- Words or conduct relevant to the creation of an express warranty and words or conduct tending to disclaim or modify an express warranty must be construed wherever reasonable as consistent with each other. Subject to § 22-301 of this title with regard to parol or extrinsic evidence, the disclaimer or modification is inoperative to the extent that such construction is unreasonable.
(b) Applicable rules.- Except as otherwise provided in subsections (c), (d), and (e) of this section, to disclaim or modify an implied warranty or any part of it, but not the warranty in § 22-401 of this subtitle, the following rules apply:
(1) Except as otherwise provided in this subsection:
(A) To disclaim or modify the implied warranty arising under § 22-403 of this subtitle, language must mention "merchantability" or "quality" or use words of similar import and, if in a record, must be conspicuous.
(B) To disclaim or modify the implied warranty arising under § 22-404 of this subtitle, language in a record must mention "accuracy" or use words of similar import.
(2) Language to disclaim or modify the implied warranty arising under § 22-405 of this subtitle must be in a record and be conspicuous. It is sufficient to state "There is no warranty that this information, our efforts, or the system will fulfill any of your particular purposes or needs", or words of similar import.
(3) Language in a record is sufficient to disclaim all implied warranties if it individually disclaims each implied warranty or, except for the warranty in § 22-401 of this subtitle, if it is conspicuous and states "Except for express warranties stated in this contract, if any, this 'information'/'computer program' is provided with all faults, and the entire risk as to satisfactory quality, performance, accuracy, and effort is with the user", or words of similar import.
(4) A disclaimer or modification sufficient under Title 2 or Title 2A of this article to disclaim or modify an implied warranty of merchantability is sufficient to disclaim or modify the warranties under §§ 22-403 and 22-404 of this subtitle. A disclaimer or modification sufficient under Title 2 or Title 2A of this article to disclaim or modify an implied warranty of fitness for a particular purpose is sufficient to disclaim or modify the warranties under § 22-405 of this subtitle.
(c) Expressions of common understanding.- Unless the circumstances indicate otherwise, all implied warranties, but not the warranty under § 22-401 of this subtitle, are disclaimed by expressions like "as is" or "with all faults" or other language that in common understanding calls the licensee's attention to the disclaimer of warranties and makes plain that there are no implied warranties.
(d) Defects that examination would reveal.- If a licensee before entering into a contract has examined the information or the sample or model as fully as it desired or has refused to examine the information, there is no implied warranty with regard to defects that an examination ought in the circumstances to have revealed to the licensee.
(e) Course of performance, course of dealing, usage of trade.- An implied warranty may also be disclaimed or modified by course of performance, course of dealing, or usage of trade.
(f) Ongoing performance.- If a contract requires ongoing performance or a series of performances by the licensor, language of disclaimer or modification which complies with this section is effective with respect to all performances under the contract.
(g) Limitation of remedies.- Remedies for breach of warranty may be limited in accordance with this title with respect to liquidation or limitation of damages and contractual modification of remedy.
(h) Applicability to consumer contract.- The provisions of subsections (a) through (g) of this section do not apply to a consumer contract.
(i) Unenforceable language - Merchantability; fitness for particular purpose.-
(1) Any oral or written language used in a consumer contract, which attempts to exclude or modify any implied warranties of merchantability of a computer program created under § 22-403 of this subtitle, or implied warranties of fitness for a particular purpose under § 22-405 of this subtitle, or exclude or modify the consumer's remedies for a breach of those warranties, is unenforceable.
(2) A merchant may recover from a manufacturer or a licensor that caused the breach any damages resulting from the breach of implied warranties of merchantability or fitness for a particular purpose that could not be disclaimed or modified under this section.
(j) Same - Express warranties.- Any oral or written language used in a consumer contract which attempts to limit or modify a consumer's remedies for breach of a merchant's, licensor's, or manufacturer's express warranties is unenforceable unless the merchant, licensor, or manufacturer provides reasonable and expeditious means of performing the warranty obligations.
(k) Applicability of §§ 22-403 and 22-405.- The provisions of §§ 22-403 and 22-405 of this subtitle do not apply to:
(1) Computer information or a computer program provided for no fee, unless the computer information or computer program is provided in conjunction with the sale or lease of goods, services, other computer information, or another computer program; or
(2) Computer information or a computer program provided as a beta test or similar experimental version of the computer information or computer program.
(l) Applicability of § 22-403.- The provisions of § 22-403 of this subtitle do not apply to a computer program provided under a license that does not impose a license fee for the right to the source code, to make copies, to modify, and to distribute the computer program.
[2000, ch. 11; ch. 61, § 6; 2001, ch. 384.]