It is common practice in software licence agreement to limit the warranty to substantial conformity with the contractor’s own documentation, and to exclude warranty for bugs, defects, errors, fitness for purpose, etc.

While the Procurement Officer should seek to negotiate changes in this clause, in practice it is very rare that contractors will agree to changes.

Best practice to protect CERN’s interests include:

• Carrying out a price enquiry or invitation to tender to select the contractor and referencing the DO or IT documents (including the specification) in the contract;
• Carrying out a proof of concept based on free trial licences to ensure the product meets CERN’s requirements before making the purchase;
• Including appropriate SLAs and penalties in the software maintenance agreement to help ensure that errors in the software are resolved in good time;
• Implement a pro-rata refund for the unavailability of the Services;
• Implement the best efforts to offer equivalent Services should part or all of it become unavailable.