"As Is" and "As Available" in Online Legal Agreements

When you run a website or app, offer an online service or sell goods online, you may make certain promises to customers. "As Is" and "As Available" clauses can help make clear that any promises you do make are limited and that you are not making other promises. Here's what you need to know and do.

What is an "As Is" or "As Available" Clause?

"As Is" and "As Available" are both types of warranty disclaimer, which means making clear to the other party that you are not making a specific promise. The idea is to cover you against any claims for damage if the other party argues that you made a promise (whether explicitly or implicitly).

The terms "As Is" and "As Available" are alternative names for this type of clause. They are also specific phrases that commonly appear in such clauses.

While the two terms are similar, they have different uses:

"As Is" means you are not making any promises about a product or service beyond what is visible. It originates from real estate contracts and for businesses it's most suited to physical goods which may have some damage or limitations. The term deters claims that you (the seller) should have explicitly told the buyer about these issues. Instead, you are saying it's the sellers responsibility to check if the product meets their needs, even with any damage or limitations.

The term can apply more widely, for example to mean that you aren't promising the product or service will perform a particular function. In its broadest sense it means you aren't making any promises except those you've explicitly listed.

"As Available" means you aren't making an open-ended promise that something will be available all the time without restriction. It's more suited to services and subscriptions. The idea is to cover yourself against claims of damage if the service is ever not available, for example because of a technical problem or because you have to temporarily withdraw it. This can include claims for:

• Refunds for some or all of the money the customer paid for the service.
• Compensation for consequential loss such as somebody who uses your services or software for work losing revenue.

Are "As Is" and "As Available" Clauses Legally Required and Are They Legally Valid?

There's no legal requirement to use an "As Is" or "As Available" clause. Consumer and contract laws don't require such clauses because, while they can aid clarity and avoid conflict, they are more about protecting the seller than the buyer.

In most cases, the clauses are legal to use as long as both sides agree. However, some consumer law may restrict the way you use an "As Is" clause. For example, in many European countries, consumers have the right to reject an item and get a refund within 14 days if they aren't able to physically inspect it before the purchase, such as with internet shopping. This can override an "As Is" clause.

Should I Use "As Is" and "As Available" Clauses in Online Agreements?

Using "As Is" and "As Available" clauses benefits you as a seller. It limits the claims people can make against you for claimed loss or damage if something goes wrong. This can reduce both the cost and hassle of dealing with any legal claim, and the risk of a court finding against you.

The clauses are particularly useful for dealing with unclear or ambiguous cases. For example, if you offer an online accounting tool and your servers go down, customers may argue it was reasonable to expect they would always be able to use the tools and thus they deserve compensation.

You could counter that it's reasonable that your service may occasionally be briefly unavailable as long as as you get it back up and running again as soon as possible.

Having a clear "As Available" clause removes the need to argue about who is acting reasonably in this situation.

Where Would I Use an "As Is" or "As Available" Clause?

These clauses can appear in any legal agreement between a seller/service provider and a customer. Examples include:

• Terms and Conditions Agreement
• Terms of Service
• Sales Contract
• End User License Agreement

It's rare to have a standalone clause in a legal document that's specifically titled "As Is" or "As Available." Instead, you can include the phrases to reinforce and clarify a wider clause. Most commonly this will be titled "Warranties," "Warranty Disclaimer" or "Liability and Warranties."

What Should I Put in an "As Is" or "As Available" Clause and How Do I Present It?

The terms "As Is" and "As Available" are established in many legal systems with an accepted meaning. This means you could simply use phrasing such as "The service is provided on an 'As Is' and 'As Available' basis."

Remember to use the correct term or terms depending on your specific situation: "As Is" when you are stressing the condition of a product (or the limitations of a service) and "As Available" when you are stressing the potential unavailability of a service or subscription.

You may want to go into more detail to avoid two problems:

• A court decides you weren’t clear enough.
• Your customer doesn’t understand the legal point you’re making. (Even if you are legally in the right and would win any legal dispute in this case, it’s not good for customer relations if people feel misled or unclear about their rights.)

Instead, consider giving specifics of what you are actually saying.

For "As Is" you could explicitly say the user accepts the goods in their current condition, including any damage or deterioration.

For "As Available" you could explicitly say you do not guarantee the service or subscription will always be available and could give examples of when this may not be the case.

Giving specific examples for either term can be useful, but make clear the list of examples is not exhaustive.

You can use italics, bold or capitals to draw attention to either the entire clause or the specific words "As Is" and "As Available." This isn't a legal requirement and doesn't automatically have extra legal force, but can be useful if you want to put particular emphasis on the terms.

Examples of "As Is" and "As Available" Clauses

Here's some of the ways real businesses use these types of clauses.

MSCI uses "As Is" to introduce a clause highlighting the absence of any warranty about the data it is providing:

Nautilus International gives both a general "As Is" warning and specific examples of guarantees it isn't making:

The Financial Reporting Council introduces the "As Is" and "As Available" disclaimers and then gives specific examples of how both apply in practice:

Caledonia uses an extensive "as is" and "as available" clause but makes clear it is not attempting to ignore or override any legal limits on such clauses:

Registers of Scotland emphasizes its lack of liability if the site is unavailable (a risk it had introduced with the "as available" term):

The operators of Castle of Mey use capitals to draw attention to the specific terms in its clause:

Places Leisure shows how an "As Is" clause can be useful even when there's no physical product involved:

Cyanagen doesn't use the term "As Is" but its combination of specific examples and a general warranty disclaimer have the same effect:

Similarly, Worralls Grove doesn't use the specific term "As Available" but its clause of WiFi availability has the same effect:

You may be interested in our article about Warranty Policies for further reading.

Summary

"As Is" and "As Available" are both types of warranty disclaimer. That's a clause in a legal document that makes clear you are not promising something. It stops the other party (eg a customer) arguing that you explicitly or implicitly promised something and they are due compensation if you don't meet this promise.

"As Is" is more commonly associated with physical goods and means the buyer accepts them in the state they are in at the time, even if they've been damaged or deteriorated such as with used goods. More widely it can mean you aren't making any promises beyond what you specifically mention.

"As Available" means you aren't guaranteeing something (usually a service) will always be available. This means the customer isn't automatically due compensation if the service is temporarily unavailable, particularly when this isn't your fault.

You can have dedicated clauses for these points; use the specific wording "As Is" and "As Available" in a wider clause; or use similar wording that clearly explains you are disclaiming or limiting a promise. The key is to make your point clearly and remove any ambiguity.