A case study on legal drafting - ‘as is’ clauses.

I read through a Ts and Cs update from a workflow automation provider today, and noticed this clause:

'NOTWITHSTANDING ANYTHING CONTAINED HEREIN, ANY SERVICE PROVIDED DURING A FREE TRIAL PERIOD IS PROVIDED "AS-IS" WITHOUT ANY REPRESENTATIONS, WARRANTIES, OR INDEMNITIES.'

What is an ‘as is’ clause?

An 'as is' clause is typically included to notify customers that they are taking the services as they are, without any contractual promises on service standards/quality. I’m not looking at how to use one of these clauses (a full overview of these clauses is for another time), but what struck me was the drafting.

Why is it drafted like this?

Look at the drafting. Is it obvious what the clause is about? Does it make sense to a non-lawyer (without having to re-read it 3 times)? Why is the drafter still using words like 'notwithstanding’ and 'herein' and do people know (or perhaps care!) what they mean?

Could it be redrafted?

Yes, absolutely. There are lots of ways we could redraft it to make it more straightforward and easy to understand. One option might be:

'There are no warranties or representations given for services provided in the free trial period'.

Does this sound better? Is it easier to understand? (Assuming you know what warranties and representations are - but sometimes some legal terms are necessary).

I’d say so! And we don’t lose any of the message or the core components of the clause either.

The take home point?
When drafting your contracts, don't overcomplicate things - use modern, plain language and always consider if that is the most effective and straightforward way to get your point across.