TSA warranties and disclaimers decide whether the seller actually promises anything about the services a buyer is paying for, and a buyer that accepts a pure as-is draft is left with a dependency and no recourse when it fails. Careful TSA negotiation replaces a blanket disclaimer with a floor the buyer can measure and enforce. The seller wants to promise as little as possible. The buyer needs enough certainty to run the business it just bought.
A warranty is a promise about the service. A disclaimer takes that promise away. Sellers draft TSAs to disclaim as much as they can, because they see the TSA as an accommodation delivered at cost rather than a commercial product, and they do not want to carry warranty risk for a business they are exiting. The starting draft often offers the services as-is, with all implied warranties excluded.
From the seller view this feels fair. It is running services it intends to wind down, often through the same teams and systems, and it does not want the buyer to hold it to a higher standard than it set for itself. The instinct is to promise nothing beyond turning the lights on.
The buyer cannot live with that. It is paying for services its operations depend on during the most fragile period of the deal, and a pure as-is position means any drop in quality, any gap, or any failure becomes the buyer problem with no remedy. The disclaimer that looks reasonable to the seller transfers all the operational risk to the party least able to absorb it.
The negotiation is therefore about replacing a blanket disclaimer with a defined floor. The buyer does not need the seller to warrant perfection. It needs a standard concrete enough to plan around and enforce.
The core buyer warranty is straightforward. The seller should warrant that it will deliver the services with reasonable skill and care, at substantially the level it provided in the period before close, and using appropriately qualified personnel. This anchors the service to a known baseline rather than to a promise of nothing, and it gives the buyer a yardstick when performance slips.
The phrase that does the work is the reference to the prior level of service. A seller cannot credibly claim that as-is means worse than what it ran the week before close, so tying the warranty to the historic standard is both fair and hard to resist. The buyer should make that baseline explicit rather than leaving the standard to argument later.
This warranty pairs with the service-level definitions and the credit regime elsewhere in the agreement. Where defined service levels exist, the warranty backs them. Where they do not, the reasonable skill and care standard fills the gap. The buyer treats the warranty and the service-level provisions as one protection, so a failure is measurable and carries a consequence.
A floor of this kind does not turn the seller into a commercial outsourcer. It simply stops as-is from meaning the buyer has bought a dependency with no promise attached.
Some warranties matter too much to fold into a general standard. Compliance with law is the clearest. The buyer wants the seller to warrant that it will deliver the services in accordance with applicable law, including data protection and industry rules, because a service that breaks the law exposes the buyer regardless of how well it otherwise performs.
Data and security warranties sit alongside this. Where the seller processes the buyer data during the TSA, the buyer wants assurance that it will maintain appropriate security, handle data correctly, and not use it beyond the agreed purpose. These promises connect to the data processing terms and the confidentiality obligations, and the buyer resists any disclaimer that quietly removes them.
Authority and freedom from infringement round out the set. The seller should warrant that it has the right to provide the services and that doing so does not breach a third-party agreement or infringe a third-party right, so the buyer is not exposed if the seller delivers using software or contracts it was not entitled to extend. These are core warranties the buyer keeps outside any general disclaimer.
By carving compliance, data, security, and authority out of the disclaimer, the buyer protects the areas where a failure causes harm well beyond the value of the service itself.
Winning a warranty means little if the remedy behind it is empty. A seller that concedes a warranty in one clause can take it back in another by capping liability at a token amount, excluding warranty breaches from recovery, or limiting the remedy to a service credit that does not reflect the harm. The buyer reads the warranties and the liability provisions together, never in isolation.
The buyer position is that a breach of a core warranty should carry a meaningful consequence. Where the cap is low, the buyer seeks to place the most important warranties, such as compliance, data, and authority, among the carve-outs that sit above the cap, so a serious breach is not absorbed by a number set for routine service value.
Disclaimers deserve the same scrutiny. A broad exclusion of indirect or consequential loss, applied without thought, can strip the buyer of recovery for exactly the kind of damage a warranty breach causes. The buyer narrows these exclusions so the disclaimer removes genuinely remote losses, not the direct consequences of the seller failing to keep its core promises.
Reading warranties against the cap, the indemnities, and the exclusions is what turns a promise on paper into protection the buyer can actually rely on.
One obligation should never be left to a best efforts disclaimer. Exit assistance is the support the seller provides to move the buyer off the service, and it is the obligation the whole separation depends on. The buyer wants it treated as a defined service with a warranted standard, not as a vague promise the seller can disclaim when the time comes to deliver it.
A warranted exit assistance obligation keeps the seller accountable for the migration, the knowledge transfer, and the cooperation the buyer needs to stand up its own capability. Without it, a seller that loses interest as the deal recedes can let the exit drift, and the buyer is left paying for a service it cannot leave.
As with the cap and the indemnities, warranties are a pre-signing matter. While the deal is live the buyer can replace the as-is draft with a real floor and protect the core warranties. After signing, it is asking the seller to take on risk it has already escaped, with little to offer in return, so the work belongs firmly before the agreement is executed.
A disciplined buyer settles the warranties and disclaimers during a pre-signing review, alongside the cap and the indemnities, so the services it pays for come with promises it can measure and a remedy it can use.
A seller delivering at cost wants to limit the promises it makes, so it offers the services as-is and disclaims most warranties. The buyer cannot accept a pure as-is position, because it is paying for services it depends on and needs at least a floor of quality and continuity to plan around.
At a minimum, the seller should warrant that it will deliver the services with reasonable skill and care, at substantially the level provided before close, and in compliance with applicable law. That floor turns a vague promise into something the buyer can measure and enforce.
A warranty is only as useful as the remedy behind it. If the liability cap is low or the warranty breach is excluded from recovery, the promise is hollow. The buyer negotiates warranties and the cap together so a breach of a core warranty carries a meaningful consequence.
Yes. Exit assistance is the obligation the separation depends on, so the buyer wants it warranted as a defined service with a standard, not disclaimed as best efforts. A clear warranty on migration support keeps the seller accountable for getting the buyer off the service.
Where to set the cap, what to exclude, and the carve-outs that matter.
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