Can you claim that your product is fit for purpose when it uses OSS software which does not guarantee it

documentationlicensingspecifications

I am working on a product for a client that must be valid and fit for purpose.

It's built on a LAMP stack (PHP/Cake), so there's GPL, MIT, PHP, APACHE licenses:

"AS IS" BASIS, WITHOUT WARRANTIES OR CONDITIONS OF ANY KIND, either express or implied, including, without limitation, any warranties or conditions of TITLE, NON-INFRINGEMENT, MERCHANTABILITY, or FITNESS FOR A PARTICULAR PURPOSE. You are solely responsible for determining the appropriateness of using or redistributing the Work and assume any risks associated with Your exercise of permissions under this License.

My rationale that my product is valid and fit for purposes:

  • The signed UAT doc proves validity and fitness for purpose.
  • The stack is so widely used by developers, industry and end users (netcraft, gartner etc. stats), that there is a consensus that it IS fit for purpose. (ie we can disregard the fitness for purpose statement in the warranty disclaimer to an extent)

Is this a valid point? Can I make claims that my software is fit for purpose?

Best Answer

First of all, as others have said, there's a difference between software actually working versus software being sold with a legal guarantee that it works.

The disclaimer text you cite means that the original licensor you got the software from does not grant any kind of warranty. You can offer the software yourself with a warranty attached. The original authors don't offer a legal guarantee that the software works, but there's no reason why you can't make such a guarantee to your client. (Whether or not you think it's a good idea to attach a legal guarantee to something you didn't write is another matter entirely.)

Specifically, section 4 of the GPL states:

You may charge any price or no price for each copy that you convey, and you may offer support or warranty protection for a fee.

I'm not sure if a license must grant you the capability to add warranties explicitly (I'm not a lawyer, but I think the answer is no -- my intuition is that you should be able to offer guarantees on virtually whatever you want). In any case, the GPL unambiguously offers you the ability to add your own warranties while conveying the software to a client.

I'm not sure about BSD, since it requires you to preserve the disclaimer, but perhaps you can offer warranty protection notwithstanding the disclaimer in the license. In effect, you might say, "I assert a warranty that this work as a whole is fit for some purpose (even though some works this larger work is derived from do not carry such a warranty)." Always ensure, of course, that your warranty terms do not violate the licenses of any of your included works.

However, again, I'm not a lawyer, and if your client has requested a warranty of fitness of purpose, he's probably looking for some vetted legal protection. You should consult a lawyer to draft the text of such a warranty.

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