3. Warranties and Disclaimers
What does it mean?
A warranty is a contractual promise, which may be “express” (stated in the agreement) or “implied” by
law. If you want to make sure that an EHR technology developer is obligated to do something or the EHR
will perform in a certain way, you should consider including an express warranty on that subject.
In general, implied warranties may be part of the contract (even if unstated) unless the implied warranties
are expressly disclaimed in the contract. Standard disclaimer of warranty language often refers to some
terms that have their origin in the Uniform Commercial Code (the “UCC”) even though the UCC applies
to the sale of goods and does not always apply to software or services, The UCC implies certain
warranties unless they are expressly disclaimed in a “conspicuous” way, such as a disclaimer in all capital
letters, which is why you will see some portions of the contract written that way. Common treatment of
implied warranties in EHR technology developer contracts is discussed below.
What do you need to know?
EHR technology developer contracts frequently include language disclaiming all implied warranties
(meaning those that are not expressly set forth in the agreement). Therefore, express warranties are very
important in EHR technology developer contracts because protection by implied warranties may not
be allowed under the contract. Combined with the “entire agreement” language (discussed below) found
in most contracts, you may have difficulty enforcing promises or statements that may have been made by
the EHR technology developer in the sales process or in advertisements or product literature, even if you
relied upon those in choosing the EHR technology developer’s product.
Typical EHR technology developer disclaimer language that limits the EHR technology developer’s
responsibility for how or whether the software performs or meets expectations is set forth below:
No Other Warranties. TECHNOLOGY DEVELOPER DISCLAIMS AND
EXCLUDES ALL WARRANTIES, WHETHER EXPRESS OR IMPLIED,
OTHER THAN THOSE EXPRESSLY SET FORTH IN THIS AGREEMENT,
INCLUDING BUT NOT LIMITED TO WARRANTIES OR CONDITIONS
OF TITLE, NON-INFRINGEMENT, SATISFACTORY QUALITY,
MERCHANTABILITY, AND FITNESS FOR A PARTICULAR PURPOSE,
WITH RESPECT TO THE EHR SOFTWARE, FIXES, RELATED
MATERIALS, AND SERVICES. TECHNOLOGY DEVELOPER WILL NOT
BE LIABLE FOR ANY SERVICES OR PRODUCTS PROVIDED BY THIRD
PARTY VENDORS, DEVELOPERS, OR CONSULTANTS USED BY
CUSTOMER IN CONNECTION WITH THE EHR SOFTWARE.
Key Contract Terms for Users to Understand 9