What&#39;s the difference between a &quot;representation&quot; and a &quot;representation and warranty?&quot; From what I understand, a "representation" is a statement of fact that underpins e.g., a contract. My understanding is that a "warranty" is a promise that if something isn't true, it will be "made true" during the course of the warranty's life. E.g. "If your widget doesn't work within the first year of sale, we'll give you another one that works." Within the above context, I am confused by the dual term "representation and warranty" or "represents and warrants" in a contract. What exactly does it mean? Put another way, how can something be both a statement of fact and a promise? Or does a term that draws on two other terms have a "third" meaning?
What is a representation and why are they put in contracts? From a practical perspective, a contractual representation is a statement of fact in a signed writing made at an easily provable time that, if false, will support a claim for fraud upon showing the other elements of a claim for fraud that are not also included elsewhere in the contract (e.g. knowledge of falsity, the other party's lack of knowledge of falsity and damages). Some other elements of a common law fraud claim (e.g. publication of the statement to the other party, justifiable reliance, and materiality) are often also established on the face of contract that contains representations identified as such. In a close case, the classification of a statement as a &quot;representation&quot; may also tip the scales if the status of a statement as a statement of a presently existing fact (which a representation must be to be actionable in a fraud action) is disputed. If a representation concerning a key fact foundational to the contract is not true, that might provide a basis to rescind the contract based upon mutual mistake (even if it doesn't amount to fraud). Proof that a false representation was intentionally false may give rise to claims for punitive damages and a right to rescind the contract in addition to a claim for compensatory damages. Representations in a contract also simplify the proof of preliminary facts like the place of incorporation of the signing party, the addresses of the parties, the authority of the person signing it to do so, the fact that someone is not in military service, etc., in a lawsuit arising from the contract on any theory. Sometimes a representation will &quot;estop&quot; a party from asserting something contrary to that representation in litigation. For example, if the seller represents that the transaction is a consumer transaction, and then tries to say that a consumer protection act claim does not apply because it is not a consumer transaction later on in court, when a dispute arises from the transaction, this argument contrary to the representation in the contract is likely to be summarily dismissed based upon that representation. As another example, a party might represent that they agree that $500 an hour is a reasonable fee to pay an attorney in the event that a dispute arises under the contract and a prevailing party in litigation becomes entitled to attorneys' fees, which might reduce litigation over whether a party's attorneys are charging reasonable rates in that context. Similarly, a contractual representation concerning authority to sign is binding on the party for which the signature is made, even if that person doesn't actually have the authority to do so under what is known as the &quot;apparent authority&quot; doctrine in agency law. And, representations often provide context for the transaction that make it easier to interpret other provisions of the contract that would otherwise be ambiguous. For example, a representation that a transaction is being entered into solely for economic business purposes may help a court decide what other representations and disputes are and are not material to the parties, and might cause a court to decide that non-economic damages (i.e. emotional distress) should not be allowed even with respect to fraud claims arising from a misrepresentation (since non-economic damages are as a default rule allowed in connection with fraud claims in many jurisdictions). What are warranties and covenants and why are they put in the contracts? A warranty or covenant is a promise that something will be the case for which there is a remedy if it is not true, without regard to fault on a strict liability basis. Relief for a breach of warranty is generally limited to compensatory damages if breached, and would not generally provide a ground to rescind a contract, but a breach of warranty claim much easier to prove in court because it often doesn't require nearly as much evidence to prove in court as a fraud claim. The evidence beyond the contract itself in a breach of warranty claims is usually in the possession of the aggrieved party prior to bringing a lawsuit. In a fraud claim based upon a representation, in contrast, some of the facts that must be proved to prevail in court (e.g. the knowledge of the person making the statement at the time that the statement was false) can usually only be obtained from testimony or out of court statements from an opposing party, or made to an opposing party. Why call something both a representation and a warranty? One both represents and warrants something in a contract so that both sets of remedies are available if the statement proves to be incorrect. There is an easy to litigate remedy of money damages if the statement is not true, and harder to litigate fraud remedies if the statement meets the additional conditions. Other Fine Points N.B. There are other kinds of contract terms in addition to representations and warranties, such as conditions precedent. But, they are beyond the scope of the question and usually don't appear in a representations and warranties (a.k.a. &quot;reps and warranties&quot;) section. A slightly less common phrase is &quot;represents, warrants and covenants&quot;, with the notion being that a warranty usually concerns something that you are promising is true at the time that the contract is signed, while a covenant is something that you promise will be true in the future or on an ongoing basis (sometimes running with the land when real estate is concerned). So, you might &quot;warrant&quot; in a sale of real estate contract that the house you sold someone is free from defects and &quot;covenant&quot; that you will forever refrain from building any other building in a subdivision that impairs its view of the mountains. Or, you might warrant in a corporate bond contract that no more than 5% of a borrower's accounts receivable are currently overdue, and covenant that you will never let more than 10% of the borrow's accounts receivable enter overdue status. But, in modern American English legal writing, the distinction between a warranty and a covenant has largely collapsed and even many sophisticated big business contract lawyers no longer use &quot;represents, warrants and covenants&quot; language in their contracts.
In Australia, the overall representations of the website must not be misleading or deceptive when it comes to the provision of goods or services, in order to comply with Australian Consumer Law. The length of the terms matters. In a very recent case against a homeopathy website, it was noted that (at [47]): The terms and conditions were exceedingly lengthy and it was highly unlikely that any visitor would trawl through them merely to access another part of the Website for free. In this case the significance of the length was not specifically tested. The position of the terms also matters. In another case against a major retailer, it was noted (at [37]) that the conditions visible: a user accessed a link at the bottom of each page of the HN Website titled “Website Terms and Conditions”, such that it was unlikely either condition would be found by a normal reader reading the HN Catalogue or viewing the HN Website This specific matter related to a very specific claim made by the retailer, and so I can't say whether it applies in general to website terms and conditions. Apart from the above cases, I can't find any good examples where the exact form of a website's terms have been considered in determining a case. There are some United States cases referred to in the Wikipedia article for browse wrap. These seem to have been judged in favour of the website operator only when the terms are conspicuous, and/or when the user has had repeated exposure to them (or a link to them), for example over a number of pages. Even where the terms are linked at the bottom of the website, and a user is not required to scroll to the bottom to use the site, terms have been found unenforceable. As far as I know, there's no statutory requirements - in Australia, at least, and quite likely anywhere else - that specify the manner and form that disclaimers may take.
There is something wrong-sounding about that claim. Owning a thing (such as a book) means that you can dispose of it however you want. If it is a physical book, then unless this is a book of top secret classified information, the US government has no control over the item, nor does the copyright holder have any right to prevent you from giving away your copy. Electronic books, however, are another matter, since often you don't buy such books, you buy a license to use the book (like a software license). The license terms of an electronic book could be subject to various controls, and the license might be non-transferable. The underlying logic of this is that under the doctrine of first sale, you are allowed to do whatever you want with intellectual property that you buy, and therefore to restrict re-distribution of electronic IP, software especially is typically not itself sold, and just the permission to use it is. If this is an electronic book, the copyright holder would be able (though not necessarily willing) to permit you to transfer your copy to someone else. Of course you can't give a copy to two people unless you have two licenses.
None because the principle is Freedom to contract There is a general right of any being (natural like a person or even a company) to contract with anyone. Buying someone's service is a contract. A contract forms when: They offer something You offer something Both sides agree on it. (meeting of the minds) It is totally legal for a company to make wears a mask in our place of business a part of either being admitted onto the property or agreeing to contract with you. Noncompliance means as a result that they don't agree to serve you and don't offer to you. In fact, they explicitly reject to contract with you unless you wear a mask, which is their right unless there is a law that would specifically make that reason illegal. There are laws that reduce the freedom of contract, such as the civil right act (protected classes, such as religion, race, sex and more), the Americans with disabilities act (demanding reasonable accommodation), and labor laws (outlawing labor practices or limiting the amount of work or minimum payment) as well as anti-discrimination laws (establishing further classes). However note, that laws need to be written in such a way that they don't discriminate against the company either! One case where freedom to contract was attacked using an anti-discrimination law was Masterpiece Cakeshop - which was decided on first amendment grounds based on the rights of the owner: the law can't force someone to make a product he would not support the message of. Currently, there might only be some ordinance that bans mask policies in Texas, but it is dubious if that might be even an enforceable order from the Texas governor - Especially since OSHA just made adjustments to standards and mandates on the federal level - which include adjustments to respiratory protection fields.
Yes. A license is a legal form of permission to do something (usually, to use a particular property, whether real or digital or intellectual) and the conditions applied to that use. Different licenses for the same property are extremely common, for example, a free license for hobby or non-profit work and a paid license for commercial usage. Other conditions can include the requirement to make the derivative work also available in some manner or to disallow restrictive conditions should the derivative work be licensed itself, even up to requiring the exact same license be applied to all works. Wording the license exactly so that it achieves the goals you intend is the work of a qualified and registered lawyer, and obtaining their services is definitely recommended for this task.
None The contractual chain is you &lt;-> warranty company &lt;-> (potentially others you don’t know about) &lt;-> service provider. Should something go wrong, you would sue your warranty company who might (it is up to them) then sue the service provider. Notwithstanding, it’s likely the service company owes you a duty of care and would be directly liable to you for a negligence claim.
would it be interpreted in favor of the person who did not draft the terms? Yes, provided that the interpretation is reasonable. That is known as the doctrine of contra proferentem. Here, the term "deliverables and associated documents" might entail a contradiction if that term [allegedly or literally] encompasses "source code or content". That depends on what definition(s) of "deliverables and associated documents" can be adduced from the contract. The term could refer to items that are not "source code or content", such as the binary files (i.e., executables and DLLs), instructions &amp; documentation on how to operate and troubleshoot the application, and so forth. In that case, there would be no contradiction because there is no overlap between these items and the source code. if term A) is written on line 10 and term B) is written on line 11, is it resonable to assume term B) takes precedence or modifies term A? No. The sequence of clauses/terms itself does not determine which one outweighs or qualifies the other. Instead, the language used in the contract is indicative of the parties' intent and therefore how the terms of that contract relate to each other.
Some jurisdictions provide for statutory warranties on fitness and merchantability of goods. The effect of these exclusion clauses will vary between jurisdictions, so I will briefly examine two different effects of law with respect to supply of goods. For the United States, certain warranties are implied in the sale of a product, provided for in the Uniform Commercial Code § 2-314, (1) Unless excluded or modified (Section 2-316), a warranty that the goods shall be merchantable is implied in a contract for their sale if the seller is a merchantwith respect to goods of that kind. Under this section the serving for value of food or drink to be consumed either on the premises or elsewhere is a sale. (2) Goods to be merchantable must be at least such as (a) pass without objection in the trade under the contract description; and (b) in the case of fungible goods, are of fair average quality within the description; and (c) are fit for the ordinary purposes for which such goods are used; and (d) run, within the variations permitted by the agreement, of even kind, quality and quantity within each unit and among all units involved; and (e) are adequately contained, packaged, and labeled as the agreement may require; and (f) conform to the promise or affirmations of fact made on the container or label if any. (3) Unless excluded or modified (Section 2-316) other implied warranties may arise from course of dealing or usage of trade. The Uniform Commercial Code § 2-315 states that: Where the seller at the time of contracting has reason to know any particular purpose for which the goods are required and that the buyer is relying on the seller's skill or judgment to select or furnish suitable goods, there is unless excluded or modified under the next section an implied warranty that the goods shall be fit for such purpose. This means that the warranties in § 2-314 will generally apply to products that are sold, unless excluded as per § 2-316 UCC § 2-316 (2) Subject to subsection (3), to exclude or modify the implied warranty of merchantability or any part of it the language must mention merchantability and in case of a writing must be conspicuous, and to exclude or modify any implied warranty of fitness the exclusion must be by a writing and conspicuous. Licenses that specifically exclude implied warranty are sanctioned by the UCC, and therefore would be considered in the United States. UCC §2-106 defines a sale as passing of title from the seller to the buyer for a price. States may have additional laws that may affect the interpretation of the UCC. For example, Ark.Code Ann. § 4–1–201(32): (29) "Purchase" means taking by sale, lease, discount, negotiation, mortgage, pledge, lien, security interest, issue or reissue, gift, or any other voluntary transaction creating an interest in property. However, Neuhoff v. Marvin Lumber and Cedar Co., 370 F.3d 197 (1st Cir.2004) held that windows provided free of charge to replace defective windows did not come with implied warranty. However, not all jurisdictions allow the exclusion of implied warranty. For instance, consider Australian Consumer Law. (Part 3-2, Division 1): 54 Guarantee as to acceptable quality (1) If: (a) a person supplies, in trade or commerce, goods to a consumer; and (b) the supply does not occur by way of sale by auction; there is a guarantee that the goods are of acceptable quality. (2) Goods are of acceptable quality if they are as: (a) fit for all the purposes for which goods of that kind are commonly supplied; and (b) acceptable in appearance and finish; and (c) free from defects; and (d) safe; and (e) durable; as a reasonable consumer fully acquainted with the state and condition of the goods (including any hidden defects of the goods), would regard as acceptable having regard to the matters in subsection (3). 64 Guarantees not to be excluded etc. by contract (1) A term of a contract (including a term that is not set out in the contract but is incorporated in the contract by another term of the contract) is void to the extent that the term purports to exclude, restrict or modify, or has the effect of excluding, restricting or modifying: (a) the application of all or any of the provisions of this Division; or (b) the exercise of a right conferred by such a provision; or (c) any liability of a person for a failure to comply with a guarantee that applies under this Division to a supply of goods or services. (2) A term of a contract is not taken, for the purposes of this section, to exclude, restrict or modify the application of a provision of this Division unless the term does so expressly or is inconsistent with the provision. 67 Conflict of laws If: (a) the proper law of a contract for the supply of goods or services to a consumer would be the law of any part of Australia but for a term of the contract that provides otherwise; or (b) a contract for the supply of goods or services to a consumer contains a term that purports to substitute, or has the effect of substituting, the following provisions for all or any of the provisions of this Division: (i) the provisions of the law of a country other than Australia; (ii) the provisions of the law of a State or a Territory; the provisions of this Division apply in relation to the supply under the contract despite that term. What the above sections mean : (54) there are implied statutory warranties (64) that cannot be excluded by contract, (67) and applies even if the proper law of a contract is not Australia. It is important to note that these do not depend on the existence of a contract (see 54(1)); gifts are covered, though I am unaware of any case law on this. In addition, title (s51) and non-infringement ("undisturbed possession") (s52) must be guaranteed by the supplier and cannot be excluded. In addition, the mere existence of this statement, purporting to limit or remove guarantees that cannot be limited or excluded, puts the supplier in breach of s29 as they are making a "false or misleading statement in connection with the supply, possible supply or promotion of goods or services". This is a criminal or civil offence and can be punished by fines of up to $1.1 million for a body corporate and $220,000 for a person other than a body corporate plus injunctions, damages, compensatory orders and other remedies. However, a simple "To the extent permitted by law ..." at the start would make this legal. So, does it have an effect? Sometimes. But not always. And at least in the United States, there are specific requirements if you want to exclude implied/statutory warranty.