Yes, This Is A Puff Piece? A Comparative Analysis of the Vendor Defences of Puffery, Statements of Future Intent and Disclaimers — How far does the divergence between promised and actual capabilities of an ERP implementation stretch until the ERP vendor is liable … and then stretch further until the ERP vendor is no longer liable?

In past articles we have reviewed critical lessons learned from various failed ERP implementations and outsourcing transactions. One of the common themes is the divergence between the representations made by technology vendor sales teams as to promised skills, expertise and delivery, and the actually provided skills, expertise and delivery. In turn, the analysis of the resulting lawsuits has emerged, in response to customer allegations of negligent misrepresentation and fraudulent misrepresentation, the vendor defences of puffery and opinion, statements of future intent, and contractual disclaimer. The article begins in this Part 1 by providing an overview of the law of misrepresentation, and then the common vendor defences of puffery and opinion, statements of future intent, and contractual disclaimers, in Canada (I) and in the United States (II). Part 2 will then complete the overview with a look at the European Union (III) and an assessment how these defences were raised by vendors in two recent ERP failure lawsuits (IV), before concluding with lessons learned for vendors and customers (V).