71st OREGON LEGISLATIVE ASSEMBLY--2001 Regular Session
NOTE: Matter within { + braces and plus signs + } in an
amended section is new. Matter within { - braces and minus
signs - } is existing law to be omitted. New sections are within
{ + braces and plus signs + } .
LC 3386
Reprinted
House Bill 3910
Sponsored by Representative WILLIAMS
SUMMARY
The following summary is not prepared by the sponsors of the
measure and is not a part of the body thereof subject to
consideration by the Legislative Assembly. It is an editor's
brief statement of the essential features of the measure as
introduced.
Creates Uniform Computer Information Transactions Act.
A BILL FOR AN ACT
Relating to Uniform Computer Information Transactions Act.
Be It Enacted by the People of the State of Oregon:
{ +
GENERAL PROVISIONS + }
{ +
(Short Title and Definitions) + }
SECTION 1. { + 101. Short title. This 2001 Act may be cited as
the Uniform Computer Information Transactions Act. + }
SECTION 2. { + 102. Definitions. (1) As used in sections 2 to
108 of this 2001 Act:
(a) 'Access contract' means a contract to obtain by electronic
means access to, or information from, an information processing
system of another person, or the equivalent of such access.
(b) 'Access material' means any information or material, such
as a document, address, or access code, that is necessary to
obtain authorized access to information or control or possession
of a copy.
(c) 'Aggrieved party' means a party entitled to a remedy for
breach of contract.
(d) 'Agreement' means the bargain of the parties in fact as
found in their language or by implication from other
circumstances, including course of performance, course of
dealing, and usage of trade as provided in sections 2 to 108 of
this 2001 Act.
(e) 'Attribution procedure' means a procedure to verify that an
electronic authentication, display, message, record, or
performance is that of a particular person or to detect changes
or errors in information. 'Attribution procedure' includes a
procedure that requires the use of algorithms or other codes,
identifying words or numbers, encryption, or callback or other
acknowledgment.
(f) 'Authenticate' means:
(A) To sign; or
(B) With the intent to sign a record, otherwise to execute or
adopt an electronic symbol, sound, message, or process referring
to, attached to, included in, or logically associated or linked
with, that record.
(g) 'Automated transaction' means a transaction in which a
contract is formed in whole or part by electronic actions of one
or both parties which are not previously reviewed by an
individual in the ordinary course.
(h) 'Cancellation' means the ending of a contract by a party
because of breach of contract by another party.
(i) 'Computer' means an electronic device that accepts
information in digital or similar form and manipulates it for a
result based on a sequence of instructions.
(j) 'Computer information' means information in electronic form
that is obtained from or through the use of a computer or that is
in a form capable of being processed by a computer. ' Computer
information' includes a copy of the information and any
documentation or packaging associated with the copy.
(k) 'Computer information transaction' means an agreement or
the performance of it to create, modify, transfer, or license
computer information or informational rights in computer
information. 'Computer information transaction' includes a
support contract under section 71 of this 2001 Act. 'Computer
information transaction' does not include a transaction merely
because the parties' agreement provides that their communications
about the transaction will be in the form of computer
information.
(L) 'Computer program' means a set of statements or
instructions to be used directly or indirectly in a computer to
bring about a certain result. 'Computer program' does not include
separately identifiable informational content.
(m) 'Consequential damages' resulting from breach of contract
includes (i) any loss resulting from general or particular
requirements and needs of which the breaching party at the time
of contracting had reason to know and which could not reasonably
be prevented and (ii) any injury to an individual or damage to
property other than the subject matter of the transaction
proximately resulting from breach of warranty. ' Consequential
damages' does not include direct damages or incidental damages.
(n) 'Conspicuous,' with reference to a term, means so written,
displayed, or presented that a reasonable person against which it
is to operate ought to have noticed it. A term in an electronic
record intended to evoke a response by an electronic agent is
conspicuous if it is presented in a form that would enable a
reasonably configured electronic agent to take it into account or
react to it without review of the record by an individual.
Conspicuous terms include the following:
(A) With respect to a person:
(i) A heading in capitals in a size equal to or greater than,
or in contrasting type, font, or color to, the surrounding text;
(ii) Language in the body of a record or display in larger or
other contrasting type, font, or color or set off from the
surrounding text by symbols or other marks that draw attention to
the language; and
(iii) A term prominently referenced in an electronic record or
display which is readily accessible or reviewable from the record
or display; and
(B) With respect to a person or an electronic agent, a term or
reference to a term that is so placed in a record or display that
the person or electronic agent cannot proceed without taking
action with respect to the particular term or reference.
(o) 'Consumer' means an individual who is a licensee of
information or informational rights that the individual at the
time of contracting intended to be used primarily for personal,
family or household purposes. 'Consumer' does not include an
individual who is a licensee primarily for professional or
commercial purposes, including agriculture, business management,
and investment management other than management of the
individual's personal or family investments.
(p) 'Consumer contract' means a contract between a merchant
licensor and a consumer.
(q) 'Contract' means the total legal obligation resulting from
the parties' agreement as affected by sections 2 to 108 of this
2001 Act and other applicable law.
(r) 'Contract fee' means the price, fee, rent, or royalty
payable in a contract under sections 2 to 108 of this 2001 Act or
any part of the amount payable.
(s) 'Contractual use term' means an enforceable term that
defines or limits the use, disclosure of, or access to licensed
information or informational rights, including a term that
defines the scope of a license.
(t) 'Copy' means the medium on which information is fixed on a
temporary or permanent basis and from which it can be perceived,
reproduced, used or communicated, either directly or with the aid
of a machine or device.
(u) 'Course of dealing' means a sequence of previous conduct
between the parties to a particular transaction that establishes
a common basis of understanding for interpreting their
expressions and other conduct.
(v) 'Course of performance' means repeated performances, under
a contract that involves repeated occasions for performance,
which are accepted or acquiesced in without objection by a party
having knowledge of the nature of the performance and an
opportunity to object to it.
(w) 'Court' includes an arbitration or other dispute-resolution
forum if the parties have agreed to use of that forum or its use
is required by law.
(x) 'Delivery,' with respect to a copy, means the voluntary
physical or electronic transfer of possession or control.
(y) 'Direct damages' means compensation for losses measured by
section 95 (2)(a) or 96 (1)(a) of this 2001 Act. 'Direct damages'
does not include consequential damages or incidental damages.
(z) 'Electronic' means relating to technology having
electrical, digital, magnetic, wireless, optical,
electromagnetic, or similar capabilities.
(aa) 'Electronic agent' means a computer program, or electronic
or other automated means, used independently to initiate an
action, or to respond to electronic messages or performances, on
the person's behalf without review or action by an individual at
the time of the action or response to the message or performance.
(bb) 'Electronic message' means a record or display that is
stored, generated, or transmitted by electronic means for the
purpose of communication to another person or electronic agent.
(cc) 'Financial accommodation contract' means an agreement
under which a person extends a financial accommodation to a
licensee and which does not create a security interest governed
by ORS chapter 79. The agreement may be in any form, including a
license or lease.
(dd) 'Financial services transaction' means an agreement that
provides for, or a transaction that is, or entails access to,
use, transfer, clearance, settlement or processing of:
(A) A deposit, loan, funds or monetary value represented in
electronic form and stored or capable of storage by electronic
means and retrievable and transferable by electronic means, or
other right to payment to or from a person;
(B) An instrument or other item;
(C) A payment order, credit card transaction, debit card
transaction, funds transfer, automated clearinghouse transfer, or
similar wholesale or retail transfer of funds;
(D) A letter of credit, document of title, financial asset,
investment property, or similar asset held in a fiduciary or
agency capacity; or
(E) Related identifying, verifying, access-enabling,
authorizing, or monitoring information.
(ee) 'Financier' means a person that provides a financial
accommodation to a licensee under a financial accommodation
contract and either (i) becomes a licensee for the purpose of
transferring or sublicensing the license to the party to which
the financial accommodation is provided or (ii) obtains a
contractual right under the financial accommodation contract to
preclude the licensee's use of the information or informational
rights under a license in the event of breach of the financial
accommodation contract. 'Financier' does not include a person
that selects, creates, or supplies the information that is the
subject of the license, owns the informational rights in the
information, or provides support for, modifications to, or
maintenance of the information.
(ff) 'Good faith' means honesty in fact and the observance of
reasonable commercial standards of fair dealing.
(gg) 'Goods' means all things that are movable at the time
relevant to the computer information transaction. 'Goods '
includes the unborn young of animals, growing crops, and other
identified things to be severed from realty which are covered by
ORS chapter 72.1070. 'Goods' does not include computer
information, money, the subject matter of foreign exchange
transactions, documents, letters of credit, letter-of-credit
rights, instruments, investment property, accounts, chattel
paper, deposit accounts or general intangibles.
(hh) 'Incidental damages' resulting from breach of contract:
(A) Means compensation for any commercially reasonable charges,
expenses, or commissions reasonably incurred by an aggrieved
party with respect to:
(i) Inspection, receipt, transmission, transportation, care, or
custody of identified copies or information that is the subject
of the breach;
(ii) Stopping delivery, shipment, or transmission;
(iii) Effecting cover or retransfer of copies or information
after the breach;
(iv) Other efforts after the breach to minimize or avoid loss
resulting from the breach; and
(v) Matters otherwise incident to the breach; and
(B) Does not include consequential damages or direct damages.
(ii) 'Information' means data, text, images, sounds, mask
works, or computer programs, including collections and
compilations of them.
(jj) 'Information processing system' means an electronic system
for creating, generating, sending, receiving, storing, displaying
or processing information.
(kk) 'Informational content' means information that is intended
to be communicated to or perceived by an individual in the
ordinary use of the information, or the equivalent of that
information.
(LL) 'Informational rights' include all rights in information
created under laws governing patents, copyrights, mask works,
trade secrets, trademarks, publicity rights, or any other law
that gives a person, independently of contract, a right to
control or preclude another person's use of or access to the
information on the basis of the rights holder's interest in the
information.
(mm) 'Insurance services transaction' means an agreement
between an insurer and an insured which provides for, or a
transaction that is, or entails access to, use, transfer,
clearance, settlement or processing of:
(A) an insurance policy, contract or certificate; or
(B) a right to payment under an insurance policy, contract, or
certificate.
(nn) 'Knowledge,' with respect to a fact, means actual
knowledge of the fact.
(oo) 'License' means a contract that authorizes access to, or
use, distribution, performance, modification, or reproduction of,
information or informational rights, but expressly limits the
access or uses authorized or expressly grants fewer than all
rights in the information, whether or not the transferee has
title to a licensed copy. 'License' includes an access contract,
a lease of a computer program, and a consignment of a copy. '
License' does not include a reservation or creation of a security
interest to the extent the interest is governed by ORS chapter
79.
(pp) 'Licensee' means a person entitled by agreement to acquire
or exercise rights in, or to have access to or use of, computer
information under an agreement to which sections 2 to 108 of this
2001 Act apply. A licensor is not a licensee with respect to
rights reserved to it under the agreement.
(qq) 'Licensor' means a person obligated by agreement to
transfer or create rights in, or to give access to or use of,
computer information or informational rights in it under an
agreement to which sections 2 to 108 of this 2001 Act apply.
Between the provider of access and a provider of the
informational content to be accessed, the provider of content is
the licensor. In an exchange of information or informational
rights, each party is a licensor with respect to the information,
informational rights or access it gives.
(rr) 'Mass-market license' means a standard form used in a
mass-market transaction.
(ss) 'Mass-market transaction' means a transaction that is:
(A) A consumer contract; or
(B) Any other transaction with an end-user licensee if:
(i) The transaction is for information or informational rights
directed to the general public as a whole, including consumers,
under substantially the same terms for the same information;
(ii) The licensee acquires the information or informational
rights in a retail transaction under terms and in a quantity
consistent with an ordinary transaction in a retail market; and
(iii) The transaction is not:
(I) A contract for redistribution or for public performance or
public display of a copyrighted work;
(II) A transaction in which the information is customized or
otherwise specially prepared by the licensor for the licensee,
other than minor customization using a capability of the
information intended for that purpose;
(III) A site license; or
(IV) An access contract.
(tt) 'Merchant' means a person:
(A) That deals in information or informational rights of the
kind involved in the transaction;
(B) That by the person's occupation holds itself out as having
knowledge or skill peculiar to the relevant aspect of the
business practices or information involved in the transaction; or
(C) To which the knowledge or skill peculiar to the practices
or information involved in the transaction may be attributed by
the person's employment of an agent or broker or other
intermediary that by its occupation holds itself out as having
the knowledge or skill.
(uu) 'Nonexclusive license' means a license that does not
preclude the licensor from transferring to other licensees the
same information, informational rights, or contractual rights
within the same scope. 'Nonexclusive license' includes a
consignment of a copy.
(vv) 'Notice' of a fact means knowledge of the fact, receipt of
notification of the fact, or reason to know the fact exists.
(ww) 'Notify' or 'give notice' means to take such steps as may
be reasonably required to inform the other person in the ordinary
course, whether or not the other person actually comes to know of
it.
(xx) 'Party' means a person that engages in a transaction or
makes an agreement under sections 2 to 108 of this 2001 Act.
(yy) 'Person' means an individual, corporation, business trust,
estate, trust, partnership, limited liability company,
association, joint venture, governmental subdivision,
instrumentality, or agency, public corporation, or any other
legal or commercial entity.
(zz) 'Published informational content' means informational
content prepared for or made available to recipients generally,
or to a class of recipients, in substantially the same form. '
Published informational content' does not include informational
content that is:
(A) Customized for a particular recipient by one or more
individuals acting as or on behalf of the licensor, using
judgment or expertise; or
(B) Provided in a special relationship of reliance between the
provider and the recipient.
(aaa) 'Receipt' means:
(A) With respect to a copy, taking delivery; or
(B) With respect to a notice:
(i) Coming to a person's attention; or
(ii) Being delivered to and available at a location or system
designated by agreement for that purpose or, in the absence of an
agreed location or system:
(I) Being delivered at the person's residence, or the person's
place of business through which the contract was made, or at any
other place held out by the person as a place for receipt of
communications of the kind; or
(II) In the case of an electronic notice, coming into existence
in an information processing system or at an address in that
system in a form capable of being processed by or perceived from
a system of that type by a recipient, if the recipient uses, or
otherwise has designated or holds out, that place or system for
receipt of notices of the kind to be given and the sender does
not know that the notice cannot be accessed from that place.
(bbb) 'Receive' means to take receipt.
(ccc) 'Record' means information that is inscribed on a
tangible medium or that is stored in an electronic or other
medium and is retrievable in perceivable form.
(ddd) 'Release' means an agreement by a party not to object to,
or exercise any rights or pursue any remedies to limit, the use
of information or informational rights which agreement does not
require an affirmative act by the party to enable or support the
other party's use of the information or informational rights. '
Release' includes a waiver of informational rights.
(eee) 'Return,' with respect to a record containing contractual
terms that were rejected, refers only to the computer information
and means:
(A) In the case of a licensee that rejects a record regarding a
single information product transferred for a single contract fee,
a right to reimbursement of the contract fee paid from the person
to which it was paid or from another person that offers to
reimburse that fee, on:
(i) Submission of proof of purchase; and
(ii) Proper redelivery of the computer information and all
copies within a reasonable time after initial delivery of the
information to the licensee;
(B) In the case of a licensee that rejects a record regarding
an information product provided as part of multiple information
products integrated into and transferred as a bundled whole but
retaining their separate identity:
(i) A right to reimbursement of any portion of the aggregate
contract fee identified by the licensor in the initial
transaction as charged to the licensee for all bundled
information products which was actually paid, on:
(I) Rejection of the record before or during the initial use of
the bundled product;
(II) Proper redelivery of all computer information products in
the bundled whole and all copies of them within a reasonable time
after initial delivery of the information to the licensee; and
(III) Submission of proof of purchase; or
(ii) A right to reimbursement of any separate contract fee
identified by the licensor in the initial transaction as charged
to the licensee for the separate information product to which the
rejected record applies, on:
(I) Submission of proof of purchase; and
(II) Proper redelivery of that computer information product and
all copies within a reasonable time after initial delivery of the
information to the licensee; or
(C) In the case of a licensor that rejects a record proposed by
the licensee, a right to proper redelivery of the computer
information and all copies from the licensee, to stop delivery or
access to the information by the licensee, and to reimbursement
from the licensee of amounts paid by the licensor with respect to
the rejected record, on reimbursement to the licensee of contract
fees that it paid with respect to the rejected record, subject to
recoupment and setoff.
(fff) 'Scope,' with respect to terms of a license, means:
(A) The licensed copies, information, or informational rights
involved;
(B) The use or access authorized, prohibited, or controlled;
(C) The geographic area, market or location; or
(D) The duration of the license.
(ggg) 'Seasonable,' with respect to an act, means taken within
the time agreed or, if no time is agreed, within a reasonable
time.
(hhh) 'Send' means, with any costs provided for and properly
addressed or directed as reasonable under the circumstances or as
otherwise agreed, to deposit a record in the mail or with a
commercially reasonable carrier, to deliver a record for
transmission to or re-creation in another location or information
processing system, or to take the steps necessary to initiate
transmission to or re-creation of a record in another location or
information processing system. In addition, with respect to an
electronic message, the message must be in a form capable of
being processed by or perceived from a system of the type the
recipient uses or otherwise has designated or held out as a place
for the receipt of communications of the kind sent. Receipt
within the time in which it would have arrived if properly sent,
has the effect of a proper sending.
(iii) 'Standard form' means a record or a group of related
records containing terms prepared for repeated use in
transactions and so used in a transaction in which there was no
negotiated change of terms by individuals except to set the
price, quantity, method of payment, selection among standard
options, or time or method of delivery.
(jjj) 'State' means a State of the United States, the District
of Columbia, Puerto Rico, the Unites States Virgin Islands, or
any territory or insular possession subject to the jurisdiction
of the United States.
(kkk) 'Term,' with respect to an agreement, means that portion
of the agreement which relates to a particular matter.
(LLL) 'Termination' means the ending of a contract by a party
pursuant to a power created by agreement or law otherwise than
because of breach of contract.
(mmm) 'Transfer':
(A) With respect to a contractual interest, includes an
assignment of the contract, but does not include an agreement
merely to perform a contractual obligation or to exercise
contractual rights through a delegate or sublicensee; and
(B) With respect to computer information, includes a sale,
license, or lease of a copy of the computer information and a
license or assignment of informational rights in computer
information.
(nnn) 'Usage of trade' means any practice or method of dealing
that has such regularity of observance in a place, vocation, or
trade as to justify an expectation that it will be observed with
respect to the transaction in question.
(2) The following definitions in the Uniform Commercial Code
apply to this 2001 Act: + }
____NOTE_TO_GOPHER_CUSTOMERS:__________________________________
THE FOLLOWING TABULAR TEXT MAY BE IRREGULAR.
FOR COMPLETE INFORMATION PLEASE SEE THE PRINTED MEASURE.
_______________________________________________________________
{ +
(a) '
Burden of establishing'
ORS 71.2010
(b) '
Document of title'
ORS 71.2010
(c) '
Financial asset'
ORS 78.1020
(d) '
Funds transfer'
ORS 74A.1040
(e) '
Identification
'
to the contract _____
(f) '
Instrument'
ORS 79.1050
(g) '
Investment property'
ORS 79.1150
(h) '
Item'
ORS 74.1040
(i) '
Letter of credit'
ORS 75.1020
(j) '
Payment order'
ORS 74A.1030
(k) '
Sale'
ORS 72.1060 + }
____________________________________________________________
END OF POSSIBLE IRREGULAR TABULAR TEXT
____________________________________________________________
{ +
(General Scope and Terms) + }
SECTION 3. { + 103. Scope; exclusions. (1) Sections 2 to 108
of this 2001 Act apply to computer information transactions.
(2) Except for subject matter excluded in subsection (4) of
this section and as otherwise provided in section 4 of this 2001
Act, if a computer information transaction includes subject
matter other than computer information or subject matter excluded
under subsection (4) of this section, the following rules apply:
(a) If a transaction includes computer information and goods,
sections 2 to 108 of this 2001 Act apply to the part of the
transaction involving computer information, informational rights
in it, and creation or modification of it. However, if a copy of
a computer program is contained in and sold or leased as part of
goods, sections 2 to 108 of this 2001 Act apply to the copy and
the computer program only if:
(A) The goods are a computer or computer peripheral; or
(B) Giving the buyer or lessee of the goods access to or use of
the program is ordinarily a material purpose of transactions in
goods of the type sold or leased.
(b) Subject to subsection (4)(c)(A) of this section, if a
transaction includes an agreement for creating, or for obtaining
rights to create, computer information and a motion picture,
sections 2 to 108 of this 2001 Act do not apply to the agreement
if the dominant character of the agreement is to create or obtain
rights to create a motion picture. In all other such agreements,
sections 2 to 108 of this 2001 Act do not apply to the part of
the agreement that involves a motion picture excluded under
subsection (4)(c)(A) of this section, but does apply to the
computer information.
(c) In all other cases, sections 2 to 108 of this 2001 Act
apply to the entire transaction if the computer information and
informational rights, or access to them, is the primary subject
matter, but otherwise applies only to the part of the transaction
involving computer information, informational rights in it, and
creation or modification of it.
(3) To the extent of a conflict between sections 2 to 108 of
this 2001 Act and ORS chapter 79, ORS chapter 79 governs.
(4) Sections 2 to 108 of this 2001 Act do not apply to:
(a) A financial services transaction;
(b) An insurance services transaction;
(c) An agreement to create, perform or perform in, include
information in, acquire, use, distribute, modify, reproduce, have
access to, adapt, make available, transmit, license or display:
(A) A motion picture or audio or visual programming, other than
in (i) a mass-market transaction or (ii) a submission of an idea
or information or release of informational rights that may result
in making a motion picture or similar information product; or
(B) A sound recording, musical work, or phonorecord as defined
or used in Title 17 of the United States Code as of July 1, 1999,
or an enhanced sound recording, other than in the submission of
an idea or information or release of informational rights that
may result in the creation of such material or a similar
information product;
(d) A compulsory license;
(e) A contract of employment of an individual, other than an
individual hired as an independent contractor to create or modify
computer information, unless the independent contractor is a
freelancer in the news reporting industry as that term is
commonly understood in that industry;
(f) A contract that does not require that information be
furnished as computer information or a contract in which, under
the agreement, the form of the information as computer
information is otherwise insignificant with respect to the
primary subject matter of the part of the transaction pertaining
to the information;
(g) Unless otherwise agreed between the parties in a record:
(A) Telecommunications products or services provided pursuant
to federal or state tariffs; or
(B) Telecommunications products or services provided pursuant
to agreements required or permitted to be filed by the service
provider with a federal or state authority regulating those
services or under pricing subject to approval by a federal or
state regulatory authority; or
(h) Subject matter within the scope of ORS chapters 73, 74,
74A, 75, 77 or 78.
(5) As used in this section:
(a) 'Audio or visual programming' means audio or visual
programming that is provided by broadcast, satellite or cable, as
defined or used in the Communications Act of 1934 and related
regulations as they existed on July 1, 1999, or by similar
methods of delivery.
(b) 'Enhanced sound recording' means a separately identifiable
product or service, the dominant character of which consists of
recorded sounds, and includes (i) statements or instructions the
purpose of which is to allow or control the perception,
reproduction or communication of those sounds or (ii) other
information, as long as recorded sounds constitute the dominant
character of the product or service.
(c) 'Motion picture' means:
(A) 'Motion picture' as defined in Title 17 of the United
States Code as of July 1, 1999; or
(B) A separately identifiable product or service, the dominant
character of which consists of a linear motion picture, and
includes (i) statements or instructions whose purpose is to allow
or control the perception, reproduction, or communication of the
motion picture or (ii) other information, as long as the motion
picture constitutes the dominant character of the product or
service. + }
SECTION 4. { + 104. Mixed transactions: agreement to opt-in
or opt-out. The parties may agree that sections 2 to 108 of this
2001 Act, including contract-formation rules, govern the
transaction, in whole or part, or that other law governs the
transaction and sections 2 to 108 of this 2001 Act do not apply,
if a material part of the subject matter to which the agreement
applies is computer information or informational rights in it
that are within the scope of sections 2 to 108 of this 2001 Act,
or is subject matter within sections 2 to 108 of this 2001 Act
under section 3 (2) of this 2001 Act, or is subject matter
excluded by section 3 (2)(a) or (c) of this 2001 Act. However,
any agreement to do so is subject to the following rules:
(1) An agreement that sections 2 to 108 of this 2001 Act govern
a transaction does not alter the applicability of any statute,
rule, or procedure that may not be varied by agreement of the
parties or that may be varied only in a manner specified by the
statute, rule or procedure, including a consumer protection
statute or administrative rule. In addition, in a mass-market
transaction, the agreement does not alter the applicability of a
law applicable to a copy of information in printed form.
(2) An agreement that sections 2 to 108 of this 2001 Act do not
govern a transaction:
(a) Does not alter the applicability of section 28 or 103 of
this 2001 Act; and
(b) In a mass-market transaction, does not alter the
applicability under sections 2 to 108 of this 2001 Act of the
doctrine of unconscionability or fundamental public policy or the
obligation of good faith.
(3) In a mass-market transaction, any term under this section
which changes the extent to which sections 2 to 108 of this 2001
Act govern the transaction must be conspicuous.
(4) A copy of a computer program contained in and sold or
leased as part of goods and which is excluded from sections 2 to
108 of this 2001 Act by section 3 (2)(a) of this 2001 Act cannot
provide the basis for an agreement under this section that
sections 2 to 108 of this 2001 Act govern the transaction. + }
SECTION 5. { + 105. Relation to federal law; fundamental
public policy; transactions subject to other state law. (1) A
provision of sections 2 to 108 of this 2001 Act that is preempted
by federal law is unenforceable to the extent of the preemption.
(2) If a term of a contract violates a fundamental public
policy, the court may refuse to enforce the contract, enforce the
remainder of the contract without the impermissible term, or
limit the application of the impermissible term so as to avoid a
result contrary to public policy, in each case to the extent that
the interest in enforcement is clearly outweighed by a public
policy against enforcement of the term.
(3) Except as otherwise provided in subsection (4) of this
section, if sections 2 to 108 of this 2001 Act or a term of a
contract under sections 2 to 108 of this 2001 Act conflicts with
a consumer protection statute or administrative rule, the
consumer protection statute or rule governs.
(4) If a law of this state in effect on the effective date of
this 2001 Act applies to a transaction governed by sections 2 to
108 of this 2001 Act, the following rules apply:
(a) A requirement that a term, waiver, notice or disclaimer be
in a writing is satisfied by a record.
(b) A requirement that a record, writing or term be signed is
satisfied by an authentication.
(c) A requirement that a term be conspicuous, or the like, is
satisfied by a term that is conspicuous under section 2 (1)(n) of
this 2001 Act.
(d) A requirement of consent or agreement to a term is
satisfied by a manifestation of assent to the term in accordance
with sections 2 to 108 of this 2001 Act.
(5) The following laws govern in the case of a conflict between
sections 2 to 108 of this 2001 Act and the other law: ______. + }
SECTION 6. { + 106. Rules of construction. (1) Sections 2 to
108 of this 2001 Act must be liberally construed and applied to
promote its underlying purposes and policies to:
(a) Support and facilitate the realization of the full
potential of computer information transactions;
(b) Clarify the law governing computer information
transactions;
(c) Enable expanding commercial practice in computer
information transactions by commercial usage and agreement of the
parties;
(d) Promote uniformity of the law with respect to the subject
matter of sections 2 to 108 of this 2001 Act among states that
enact it; and
(e) Permit the continued expansion of commercial practices in
the excluded transactions through custom, usage and agreement of
the parties.
(2) Except as otherwise provided in section 13 (1) of this 2001
Act, the use of mandatory language or the absence of a phrase
such as 'unless otherwise agreed' in a provision in sections 2 to
108 of this 2001 Act does not preclude the parties from varying
the effect of the provision by agreement.
(3) The fact that a provision of sections 2 to 108 of this 2001
Act imposes a condition for a result does not by itself mean that
the absence of that condition yields a different result.
(4) To be enforceable, a term need not be conspicuous,
negotiated, or expressly assented or agreed to, unless sections 2
to 108 of this 2001 Act expressly so require. + }
SECTION 7. { + 107. Legal recognition of electronic record
and authentication; use of electronic agents. (1) A record or
authentication may not be denied legal effect or enforceability
solely because it is in electronic form.
(2) Sections 2 to 108 of this 2001 Act do not require that a
record or authentication be generated, stored, sent, received, or
otherwise processed by electronic means or in electronic form.
(3) In any transaction, a person may establish requirements
regarding the type of authentication or record acceptable to it.
(4) A person that uses an electronic agent that it has selected
for making an authentication, performance, or agreement,
including manifestation of assent, is bound by the operations of
the electronic agent, even if no individual was aware of or
reviewed the agent's operations or the results of the
operations. + }
SECTION 8. { + 108. Proof and effect of authentication. (1)
Authentication may be proven in any manner, including a showing
that a party made use of information or access that could have
been available only if it engaged in conduct or operations that
authenticated the record or term.
(2) Compliance with a commercially reasonable attribution
procedure agreed to or adopted by the parties or established by
law for authenticating a record authenticates the record as a
matter of law. + }
SECTION 9. { + 109. Choice of law. (1) The parties in their
agreement may choose the applicable law. However, the choice is
not enforceable in a consumer contract to the extent it would
vary a rule that may not be varied by agreement under the law of
the jurisdiction whose law would apply under subsections (2) and
(3) of this section in the absence of the agreement.
(2) In the absence of an enforceable agreement on choice of
law, the following rules determine which jurisdiction's law
governs in all respects for purposes of contract law:
(a) An access contract or a contract providing for electronic
delivery of a copy is governed by the law of the jurisdiction in
which the licensor was located when the agreement was entered
into.
(b) A consumer contract that requires delivery of a copy on a
tangible medium is governed by the law of the jurisdiction in
which the copy is or should have been delivered to the consumer.
(c) In all other cases, the contract is governed by the law of
the jurisdiction having the most significant relationship to the
transaction.
(3) In cases governed by subsection (2) of this section, if the
jurisdiction whose law governs is outside the United States, the
law of that jurisdiction governs only if it provides
substantially similar protections and rights to a party not
located in that jurisdiction as are provided under sections 2 to
108 of this 2001 Act. Otherwise, the law of the state that has
the most significant relationship to the transaction governs.
(4) For purposes of this section, a party is located at its
place of business if it has one place of business, at its chief
executive office if it has more than one place of business, or at
its place of incorporation or primary registration if it does not
have a physical place of business. Otherwise, a party is located
at its primary residence. + }
SECTION 10. { + 110. Contractual choice of forum. (1) The
parties in their agreement may choose an exclusive judicial forum
unless the choice is unreasonable and unjust.
(2) A judicial forum specified in an agreement is not exclusive
unless the agreement expressly so provides. + }
SECTION 11. { + 111. Unconscionable contract or term. (1) If
a court as a matter of law finds a contract or a term thereof to
have been unconscionable at the time it was made, the court may
refuse to enforce the contract, enforce the remainder of the
contract without the unconscionable term, or limit the
application of the unconscionable term so as to avoid an
unconscionable result.
(2) If it is claimed or appears to the court that a contract or
term thereof may be unconscionable, the parties must be afforded
a reasonable opportunity to present evidence as to its commercial
setting, purpose, and effect to aid the court in making the
determination. + }
SECTION 12. { + 112. Manifesting assent; opportunity to
review. (1) A person manifests assent to a record or term if the
person, acting with knowledge of, or after having an opportunity
to review the record or term or a copy of it:
(a) Authenticates the record or term with intent to adopt or
accept it; or
(b) Intentionally engages in conduct or makes statements with
reason to know that the other party or its electronic agent may
infer from the conduct or statement that the person assents to
the record or term.
(2) An electronic agent manifests assent to a record or term
if, after having an opportunity to review it, the electronic
agent:
(a) Authenticates the record or term; or
(b) Engages in operations that in the circumstances indicate
acceptance of the record or term.
(3) If sections 2 to 108 of this 2001 Act or other law requires
assent to a specific term, a manifestation of assent must relate
specifically to the term.
(4) Conduct or operations manifesting assent may be proved in
any manner, including a showing that a person or an electronic
agent obtained or used the information or informational rights
and that a procedure existed by which a person or an electronic
agent must have engaged in the conduct or operations in order to
do so. Proof of compliance with subsection (1)(b) of this
section is sufficient if there is conduct that assents and
subsequent conduct that reaffirms assent by electronic means.
(5) With respect to an opportunity to review, the following
rules apply:
(a) A person has an opportunity to review a record or term only
if it is made available in a manner that ought to call it to the
attention of a reasonable person and permit review.
(b) An electronic agent has an opportunity to review a record
or term only if it is made available in manner that would enable
a reasonably configured electronic agent to react to the record
or term.
(c) If a record or term is available for review only after a
person becomes obligated to pay or begins its performance, the
person has an opportunity to review only if it has a right to a
return if it rejects the record. However, a right to a return is
not required if:
(A) The record proposes a modification of contract or provides
particulars of performance under section 35 of this 2001 Act; or
(B) The primary performance is other than delivery or
acceptance of a copy, the agreement is not a mass-market
transaction, and the parties at the time of contracting had
reason to know that a record or term would be presented after
performance, use or access to the information began.
(d) The right to a return under subsection (5)(c) of this
section may arise by law or by agreement.
(6) The effect of provisions of this section may be modified by
an agreement setting out standards applicable to future
transactions between the parties.
(7) Providers of online services, network access, and
telecommunications services, or the operators of facilities
thereof, do not manifest assent to a contractual relationship
simply by their provision of those services to other parties,
including, without limitation, transmission, routing, or
providing connections, linking, caching, hosting, information
location tools, or storage of materials, at the request or
initiation of a person other than the service provider. + }
SECTION 13. { + 113. Variation by agreement; commercial
practice. (1) The effect of any provision of sections 2 to 108
of this 2001 Act, including an allocation of risk or imposition
of a burden, may be varied by agreement of the parties. However,
the following rules apply:
(a) Obligations of good faith, diligence, reasonableness, and
care imposed by sections 2 to 108 of this 2001 Act may not be
disclaimed by agreement, but the parties by agreement may
determine the standards by which the performance of the
obligation is to be measured if the standards are not manifestly
unreasonable.
(b) The limitations on enforceability imposed by
unconscionability under section 11 of this 2001 Act and
fundamental public policy under section 5 (2) of this 2001 Act
may not be varied by agreement.
(c) Limitations on enforceability of, or agreement to, a
contract, term, or right expressly stated in the statutes listed
in the following subparagraphs may not be varied by agreement
except to the extent provided in each statute:
(A) The limitations on agreed choice of law in section 9 (1) of
this 2001 Act;
(B) The limitations on agreed choice of judicial forum in
section 10 of this 2001 Act;
(C) The requirements for manifesting assent and opportunity for
review in section 12 of this 2001 Act;
(D) The limitations on enforceability in section 15 of this
2001 Act;
(E) The limitations on a mass-market license in section 23 of
this 2001 Act;
(F) The consumer defense arising from an electronic error in
section 28 of this 2001 Act;
(G) The requirements for an enforceable term in sections 33
(2), 37 (7), 45 (2) and (3) and 91 (1) of this 2001 Act;
(H) The limitations on a financier in sections 55 to 59 of this
2001 Act;
(I) The restrictions on altering the period of limitations in
section 92 (1) and (2) of this 2001 Act; and
(J) The limitations on self-help repossession in sections 102
(2) and 103 of this 2001 Act.
(2) Any usage of trade of which the parties are or should be
aware and any course of dealing or course of performance between
the parties are relevant to determining the existence or meaning
of an agreement. + }
SECTION 14. { + 114. Supplemental principles; good faith;
decision for court; reasonable time; reason to know. (1) Unless
displaced by sections 2 to 108 of this 2001 Act, principles of
law and equity, including the law merchant and the common law of
this state relative to capacity to contract, principal and agent,
estoppel, fraud, misrepresentation, duress, coercion, mistake,
and other validating or invalidating cause, supplement sections 2
to 108 of this 2001 Act. Among the laws supplementing and not
displaced by sections 2 to 108 of this 2001 Act are trade secret
laws and unfair competition laws.
(2) Every contract or duty within the scope of sections 2 to
108 of this 2001 Act imposes an obligation of good faith in its
performance or enforcement.
(3) Whether a term is conspicuous or is unenforceable under
section 5 (1) or (2), 11 or 23 (1) of this 2001 Act and whether
an attribution procedure is commercially reasonable or effective
under section 8, 26 or 27 of this 2001 Act are questions to be
determined by the court.
(4) Whether an agreement has legal consequences is determined
by sections 2 to 108 of this 2001 Act.
(5) Whenever sections 2 to 108 of this 2001 Act require any
action to be taken within a reasonable time, the following rules
apply:
(a) What is a reasonable time for taking the action depends on
the nature, purpose and circumstances of the action.
(b) Any time that is not manifestly unreasonable may be fixed
by agreement.
(6) A person has reason to know a fact if the person has
knowledge of the fact or, from all the facts and circumstances
known to the person without investigation, the person should be
aware that the fact exists. + }
{ +
FORMATION AND TERMS + }
{ +
(Formation of Contract) + }
SECTION 15. { + 201. Formal requirements. (1) Except as
otherwise provided in this section, a contract requiring payment
of a contract fee of $5,000 or more is not enforceable by way of
action or defense unless:
(a) The party against which enforcement is sought authenticated
a record sufficient to indicate that a contract has been formed
and which reasonably identifies the copy or subject matter to
which the contract refers; or
(b) The agreement is a license for an agreed duration of one
year or less or which may be terminated at will by the party
against which the contract is asserted.
(2) A record is sufficient under subsection (1) of this section
even if it omits or incorrectly states a term, but the contract
is not enforceable under that subsection beyond the number of
copies or subject matter shown in the record.
(3) A contract that does not satisfy the requirements of
subsection (1) of this section is nevertheless enforceable if:
(a) A performance was tendered or the information was made
available by one party and the tender was accepted or the
information accessed by the other; or
(b) The party against which enforcement is sought admits in
court, by pleading or by testimony or otherwise under oath, facts
sufficient to indicate a contract has been made, but the
agreement is not enforceable under this paragraph beyond the
number of copies or the subject matter admitted.
(4) Between merchants, if, within a reasonable time, a record
in confirmation of the contract and sufficient against the sender
is received and the party receiving it has reason to know its
contents, the record satisfies subsection (1) of this section
against the party receiving it unless notice of objection to its
contents is given in a record within a reasonable time after the
confirming record is received.
(5) An agreement that the requirements of this section need not
be satisfied as to future transactions is effective if evidenced
in a record authenticated by the person against which enforcement
is sought.
(6) A transaction within the scope of sections 2 to 108 of this
2001 Act is not subject to a statute of frauds contained in
another law of this state. + }
SECTION 16. { + 202. Formation in general. (1) A contract may
be formed in any manner sufficient to show agreement, including
offer and acceptance or conduct of both parties or operations of
electronic agents which recognize the existence of a contract.
(2) If the parties so intend, an agreement sufficient to
constitute a contract may be found even if the time of its making
is undetermined, one or more terms are left open or to be agreed
on, the records of the parties do not otherwise establish a
contract, or one party reserves the right to modify terms.
(3) Even if one or more terms are left open or to be agreed
upon, a contract does not fail for indefiniteness if the parties
intended to make a contract and there is a reasonably certain
basis for giving an appropriate remedy.
(4) In the absence of conduct or performance by both parties to
the contrary, a contract is not formed if there is a material
disagreement about a material term, including a term concerning
scope.
(5) If a term is to be adopted by later agreement and the
parties do not intend to be bound unless the term is so adopted,
a contract is not formed if the parties do not agree to the term.
In that case, each party shall deliver to the other party, or
with the consent of the other party destroy, all copies of
information, access materials, and other materials received or
made, and each party is entitled to a return with respect to any
contract fee paid for which performance has not been received,
has not been accepted, or has been redelivered without any
benefit being retained. The parties remain bound by any
restriction in a contractual use term with respect to information
or copies received or made from copies received pursuant to the
agreement, but the contractual use term does not apply to
information or copies properly received or obtained from another
source. + }
SECTION 17. { + 203. Offer and acceptance in general. Unless
otherwise unambiguously indicated by the language or the
circumstances:
(1) An offer to make a contract invites acceptance in any
manner and by any medium reasonable under the circumstances.
(2) An order or other offer to acquire a copy for prompt or
current delivery invites acceptance by either a prompt promise to
ship or a prompt or current shipment of a conforming or
nonconforming copy. However, a shipment of a nonconforming copy
is not an acceptance if the licensor seasonably notifies the
licensee that the shipment is offered only as an accommodation to
the licensee.
(3) If the beginning of a requested performance is a reasonable
mode of acceptance, an offeror that is not notified of acceptance
or performance within a reasonable time may treat the offer as
having lapsed before acceptance.
(4) If an offer in an electronic message evokes an electronic
message accepting the offer, a contract is formed:
(a) When an electronic acceptance is received; or
(b) If the response consists of beginning performance, full
performance, or giving access to information, when the
performance is received or the access is enabled and necessary
access materials are received. + }
SECTION 18. { + 204. Acceptance with varying terms. (1) For
purposes of this section, an acceptance materially alters an
offer if it contains a term that materially conflicts with or
varies a term of the offer or that adds a material term not
contained in the offer.
(2) Except as otherwise provided in section 19 of this 2001
Act, a definite and seasonable expression of acceptance operates
as an acceptance, even if the acceptance contains terms that vary
from the terms of the offer, unless the acceptance materially
alters the offer.
(3) If an acceptance materially alters the offer, the following
rules apply:
(a) A contract is not formed unless:
(A) A party agrees, such as by manifesting assent, to the other
party's offer or acceptance; or
(B) All the other circumstances, including the conduct of the
parties, establish a contract.
(b) If a contract is formed by the conduct of both parties, the
terms of the contract are determined under section 24 of this
2001 Act.
(4) If an acceptance varies from but does not materially alter
the offer, a contract is formed based on the terms of the offer.
In addition, the following rules apply:
(a) Terms in the acceptance which conflict with terms in the
offer are not part of the contract.
(b) An additional nonmaterial term in the acceptance is a
proposal for an additional term. Between merchants, the proposed
additional term becomes part of the contract unless the offeror
gives notice of objection before, or within a reasonable time
after, it receives the proposed terms. + }
SECTION 19. { + 205. Conditional offer or acceptance. (1) In
this section, an offer or acceptance is conditional if it is
conditioned on agreement by the other party to all the terms of
the offer or acceptance.
(2) Except as otherwise provided in subsection (3) of this
section, a conditional offer or acceptance precludes formation of
a contract unless the other party agrees to its terms, such as by
manifesting assent.
(3) If an offer and acceptance are in standard forms and at
least one form is conditional, the following rules apply:
(a) Conditional language in a standard term precludes formation
of a contract only if the actions of the party proposing the form
are consistent with the conditional language, such as by refusing
to perform, refusing to permit performance, or refusing to accept
the benefits of the agreement, until its proposed terms are
accepted.
(b) A party that agrees, such as by manifesting assent, to a
conditional offer that is effective under paragraph (a) of this
subsection adopts the terms of the offer under section 22 or 23
of this 2001 Act, except a term that conflicts with an expressly
agreed term regarding price or quantity. + }
SECTION 20. { + 206. Offer and acceptance: electronic agents.
(1) A contract may be formed by the interaction of electronic
agents. If the interaction results in the electronic agents'
engaging in operations that under the circumstances indicate
acceptance of an offer, a contract is formed, but a court may
grant appropriate relief if the operations resulted from fraud,
electronic mistake, or the like.
(2) A contract may be formed by the interaction of an
electronic agent and an individual acting on the individual's own
behalf or for another person. A contract is formed if the
individual takes an action or makes a statement that the
individual can refuse to take or say and that the individual has
reason to know will:
(a) Cause the electronic agent to perform, provide benefits, or
allow the use or access that is the subject of the contract, or
send instructions to do so; or
(b) Indicate acceptance, regardless of other expressions or
actions by the individual to which the individual has reason to
know the electronic agent cannot react.
(3) The terms of a contract formed under subsection (2) of this
section are determined under section 22 or 23 of this 2001 Act
but do not include a term provided by the individual if the
individual had reason to know that the electronic agent could not
react to the term. + }
SECTION 21. { + 207. Formation: releases of informational
rights. (1) A release is effective without consideration if it
is:
(a) In a record to which the releasing party agrees, such as by
manifesting assent, and which identifies the informational rights
released; or
(b) Enforceable under estoppel, implied license, or other law.
(2) A release continues for the duration of the informational
rights released if the release does not specify its duration and
does not require affirmative performance after the grant of the
release by:
(a) The party granting the release; or
(b) The party receiving the release, except for relatively
insignificant acts.
(3) In cases not governed by subsection (2) of this section,
the duration of a release is governed by section 38 of this 2001
Act. + }
{ +
(Terms of Records) + }
SECTION 22. { + 208. Adopting terms of records. Except as
otherwise provided in section 23 of this 2001 Act, the following
rules apply:
(1) A party adopts the terms of a record, including a standard
form, as the terms of the contract if the party agrees to the
record, such as by manifesting assent.
(2) The terms of a record may be adopted pursuant to subsection
(1) of this section after beginning performance or use if the
parties had reason to know that their agreement would be
represented in whole or part by a later record to be agreed on
and there would not be an opportunity to review the record or a
copy of it before performance or use begins. If the parties fail
to agree to the later terms and did not intend to form a contract
unless they so agreed, section 16 (5) of this 2001 Act applies.
(3) If a party adopts the terms of a record, the terms become
part of the contract without regard to the party's knowledge or
understanding of individual terms in the record, except for a
term that is unenforceable because it fails to satisfy another
requirement of sections 2 to 108 of this 2001 Act. + }
SECTION 23. { + 209. Mass-market license. (1) A party adopts
the terms of a mass-market license for purposes of section 22 of
this 2001 Act only if the party agrees to the license, such as by
manifesting assent, before or during the party's initial
performance or use of or access to the information. A term is not
part of the license if:
(a) The term is unconscionable or is unenforceable under
section 5 (1) or (2) of this 2001 Act; or
(b) Subject to section 31 of this 2001 Act, the term conflicts
with a term to which the parties to the license have expressly
agreed.
(2) If a mass-market license or a copy of the license is not
available in a manner permitting an opportunity to review by the
licensee before the licensee becomes obligated to pay and the
licensee does not agree, such as by manifesting assent, to the
license after having an opportunity to review, the licensee is
entitled to a return under section 12 of this 2001 Act and, in
addition, to:
(a) Reimbursement of any reasonable expenses incurred in
complying with the licensor's instructions for returning or
destroying the computer information or, in the absence of
instructions, expenses incurred for return postage or similar
reasonable expense in returning the computer information; and
(b) Compensation for any reasonable and foreseeable costs of
restoring the licensee's information processing system to reverse
changes in the system caused by the installation, if:
(A) The installation occurs because information must be
installed to enable review of the license; and
(B) The installation alters the system or information in it but
does not restore the system or information after removal of the
installed information because the licensee rejected the license.
(3) In a mass-market transaction, if the licensor does not have
an opportunity to review a record containing proposed terms from
the licensee before the licensor delivers or becomes obligated to
deliver the information, and if the licensor does not agree, such
as by manifesting assent, to those terms after having that
opportunity, the licensor is entitled to a return. + }
SECTION 24. { + 210. Terms of contract formed by conduct. (1)
Except as otherwise provided in subsection (2) of this section
and subject to section 31 of this 2001 Act, if a contract is
formed by conduct of the parties, the terms of the contract are
determined by consideration of the terms and conditions to which
the parties expressly agreed, course of performance, course of
dealing, usage of trade, the nature of the parties' conduct, the
records exchanged, the information or informational rights
involved, and all other relevant circumstances. If a court cannot
determine the terms of the contract from the foregoing factors,
the supplementary principles of sections 2 to 108 of this 2001
Act apply.
(2) This section does not apply if the parties authenticate a
record of the contract or a party agrees, such as by manifesting
assent, to the record containing the terms of the other
party. + }
SECTION 25. { + 211. Pretransaction disclosures in
Internet-type transactions. This section applies to a licensor
that makes its computer information available to a licensee by
electronic means from its Internet or similar electronic site. In
such a case, the licensor affords an opportunity to review the
terms of a standard form license which opportunity satisfies
section 12 (5) of this 2001 Act with respect to a licensee that
acquires the information from that site, if the licensor:
(1) Makes the standard terms of the license readily available
for review by the licensee before the information is delivered or
the licensee becomes obligated to pay, whichever occurs first,
by:
(a) Displaying prominently and in close proximity to a
description of the computer information, or to instructions or
steps for acquiring it, the standard terms or a reference to an
electronic location from which they can be readily obtained; or
(b) Disclosing the availability of the standard terms in a
prominent place on the site from which the computer information
is offered and promptly furnishing a copy of the standard terms
on request before the transfer of the computer information; and
(2) Does not take affirmative acts to prevent printing or
storage of the standard terms for archival or review purposes by
the licensee. + }
{ +
(Electronic Contracts: Generally) + }
SECTION 26. { + 212. Efficacy and commercial reasonableness
of attribution procedure. The efficacy, including the commercial
reasonableness, of an attribution procedure is determined by the
court. In making this determination, the following rules apply:
(1) An attribution procedure established by law is effective
for transactions within the coverage of the statute or rule.
(2) Except as otherwise provided in subsection (1) of this
section, commercial reasonableness and effectiveness is
determined in light of the purposes of the procedure and the
commercial circumstances at the time the parties agreed to or
adopted the procedure.
(3) An attribution procedure may use any security device or
method that is commercially reasonable under the
circumstances. + }
SECTION 27. { + 213. Determining attribution. (1) An
electronic authentication, display, message, record, or
performance is attributed to a person if it was the act of the
person or its electronic agent, or if the person is bound by it
under agency or other law. The party relying on attribution of an
electronic authentication, display, message, record, or
performance to another person has the burden of establishing
attribution.
(2) The act of a person may be shown in any manner, including a
showing of the efficacy of an attribution procedure that was
agreed to or adopted by the parties or established by law.
(3) The effect of an electronic act attributed to a person
under subsection (1) of this section is determined from the
context at the time of its creation, execution, or adoption,
including the parties' agreement, if any, or otherwise as
provided by law.
(4) If an attribution procedure exists to detect errors or
changes in an electronic authentication, display, message,
record, or performance, and was agreed to or adopted by the
parties or established by law, and one party conformed to the
procedure but the other party did not, and the nonconforming
party would have detected the change or error had that party also
conformed, the effect of noncompliance is determined by the
agreement but, in the absence of agreement, the conforming party
may avoid the effect of the error or change. + }
SECTION 28. { + 214. Electronic error: consumer defenses. (1)
In this section, 'electronic error' means an error in an
electronic message created by a consumer using an information
processing system if a reasonable method to detect and correct or
avoid the error was not provided.
(2) In an automated transaction, a consumer is not bound by an
electronic message that the consumer did not intend and which was
caused by an electronic error, if the consumer:
(a) Promptly on learning of the error:
(A) Notifies the other party of the error; and
(B) Causes delivery to the other party or, pursuant to
reasonable instructions received from the other party, delivers
to another person or destroys all copies of the information; and
(b) Has not used, or received any benefit or value from, the
information or caused the information or benefit to be made
available to a third party.
(3) If subsection (2) of this section does not apply, the
effect of an electronic error is determined by other law. + }
SECTION 29. { + 215. Electronic message: when effective;
effect of acknowledgment. (1) Receipt of an electronic message is
effective when received even if no individual is aware of its
receipt.
(2) Receipt of an electronic acknowledgment of an electronic
message establishes that the message was received but by itself
does not establish that the content sent corresponds to the
content received. + }
{ +
(Idea and Information Submissions) + }
SECTION 30. { + 216. Idea or information submission. (1) The
following rules apply to a submission of an idea or information
for the creation, development, or enhancement of computer
information which is not made pursuant to an existing agreement
requiring the submission:
(a) A contract is not formed and is not implied from the mere
receipt of an unsolicited submission.
(b) Engaging in a business, trade or industry that by custom or
practice regularly acquires ideas is not in itself an express or
implied solicitation of the information.
(c) If the recipient seasonably notifies the person making the
submission that the recipient maintains a procedure to receive
and review submissions, a contract is formed only if:
(A) The submission is made and a contract accepted pursuant to
that procedure; or
(B) The recipient expressly agrees to terms concerning the
submission.
(2) An agreement to disclose an idea creates a contract
enforceable against the receiving party only if the idea as
disclosed is confidential, concrete, and novel to the business,
trade, or industry or the party receiving the disclosure
otherwise expressly agreed. + }
{ +
CONSTRUCTION + }
{ +
(General) + }
SECTION 31. { + 301. Parol or extrinsic evidence. Terms with
respect to which confirmatory records of the parties agree or
which are otherwise set forth in a record intended by the parties
as a final expression of their agreement with respect to terms
included therein may not be contradicted by evidence of any
previous agreement or of a contemporaneous oral agreement but may
be explained or supplemented by:
(1) Course of performance, course of dealing or usage of trade;
and
(2) Evidence of consistent additional terms, unless the court
finds the record to have been intended as a complete and
exclusive statement of the terms of the agreement. + }
SECTION 32. { + 302. Practical construction. (1) The express
terms of an agreement and any course of performance, course of
dealing, or usage of trade must be construed whenever reasonable
as consistent with each other. However, if that construction is
unreasonable:
(a) Express terms prevail over course of performance, course of
dealing and usage of trade;
(b) Course of performance prevails over course of dealing and
usage of trade; and
(c) Course of dealing prevails over usage of trade.
(2) An applicable usage of trade in the place where any part of
performance is to occur must be used in interpreting the
agreement as to that part of the performance.
(3) Evidence of a relevant course of performance, course of
dealing, or usage of trade offered by one party in a proceeding
is not admissible unless and until the party offering the
evidence has given the other party notice that the court finds
sufficient to prevent unfair surprise.
(4) The existence and scope of a usage of trade must be proved
as facts. + }
SECTION 33. { + 303. Modification and rescission. (1) An
agreement modifying a contract subject to this 2001 Act needs no
consideration to be binding.
(2) An authenticated record that precludes modification or
rescission except by an authenticated record may not otherwise be
modified or rescinded. In a standard form supplied by a merchant
to a consumer, a term requiring an authenticated record for
modification of the contract is not enforceable unless the
consumer manifests assent to the term.
(3) A modification of a contract and the contract as modified
must satisfy the requirements of sections 15 (1) and 37 (7) of
this 2001 Act if the contract as modified is within those
provisions.
(4) An attempt at modification or rescission that does not
satisfy subsection (2) or (3) of this section may operate as a
waiver if section 79 of this 2001 Act is satisfied. + }
SECTION 34. { + 304. Continuing contractual terms. (1) Terms
of an agreement involving successive performances apply to all
performances, even if the terms are not displayed or otherwise
brought to the attention of a party with respect to each
successive performance, unless the terms are modified in
accordance with sections 2 to 108 of this 2001 Act or the
contract.
(2) If a contract provides that terms may be changed as to
future performances by compliance with a described procedure, a
change proposed in good faith pursuant to that procedure becomes
part of the contract if the procedure:
(a) Reasonably notifies the other party of the change; and
(b) In a mass-market transaction, permits the other party to
terminate the contract as to future performance if the change
alters a material term and the party in good faith determines
that the modification is unacceptable.
(3) The parties by agreement may determine the standards for
reasonable notice unless the agreed standards are manifestly
unreasonable in light of the commercial circumstances.
(4) The enforceability of changes made pursuant to a procedure
that does not comply with subsection (2) of this section is
determined by the other provisions of sections 2 to 108 of this
2001 Act or other law. + }
SECTION 35. { + 305. Terms to be specified. An agreement that
is otherwise sufficiently definite to be a contract is not
invalid because it leaves particulars of performance to be
specified by one of the parties. If particulars of performance
are to be specified by a party, the following rules apply:
(1) Specification must be made in good faith and within limits
set by commercial reasonableness.
(2) If a specification materially affects the other party's
performance but is not seasonably made, the other party:
(a) Is excused for any resulting delay in its performance; and
(b) May perform, suspend performance, or treat the failure to
specify as a breach of contract. + }
SECTION 36. { + 306. Performance under open terms. A
performance obligation of a party that cannot be determined from
the agreement or from other provisions of sections 2 to 108 of
this 2001 Act requires the party to perform in a manner and in a
time that is reasonable in light of the commercial circumstances
existing at the time of agreement. + }
{ +
(Interpretation) + }
SECTION 37. { + 307. Interpretation and requirements for
grant. (1) A license grants:
(a) The contractual rights that are expressly described; and
(b) A contractual right to use any informational rights within
the licensor's control at the time of contracting which are
necessary in the ordinary course to exercise the expressly
described rights.
(2) If a license expressly limits use of the information or
informational rights, use in any other manner is a breach of
contract. In all other cases, a license contains an implied
limitation that the licensee will not use the information or
informational rights otherwise than as described in subsection
(1) of this section. However, use inconsistent with this implied
limitation is not a breach if it is permitted under applicable
law in the absence of the implied limitation.
(3) An agreement that does not specify the number of permitted
users permits a number of users which is reasonable in light of
the informational rights involved and the commercial
circumstances existing at the time of the agreement.
(4) A party is not entitled to any rights in new versions of,
or improvements or modifications to, information made by the
other party. A licensor's agreement to provide new versions,
improvements, or modifications requires that the licensor provide
them as developed and made generally commercially available from
time to time by the licensor.
(5) Neither party is entitled to receive copies of source code,
schematics, master copy, design material, or other information
used by the other party in creating, developing, or implementing
the information.
(6) Terms concerning scope must be construed under ordinary
principles of contract interpretation in light of the
informational rights and the commercial context. In addition, the
following rules apply:
(a) A grant of 'all possible rights and for all media' or ' all
rights and for all media now known or later developed,' or a
grant in similar terms, includes all rights then existing or
later created by law and all uses, media, and methods of
distribution or exhibition, whether then existing or developed in
the future and whether or not anticipated at the time of the
grant.
(b) A grant of an 'exclusive license,' or a grant in similar
terms, means that:
(A) For the duration of the license, the licensor will not
exercise, and will not grant to any other person, rights in the
same information or informational rights within the scope of the
exclusive grant; and
(B) The licensor affirms that it has not previously granted
those rights in a contract in effect when the licensee's rights
may be exercised.
(7) The rules in this section may be varied only by a record
that is sufficient to indicate that a contract has been made and
which is:
(a) Authenticated by the party against which enforcement is
sought; or
(b) Prepared and delivered by one party and adopted by the
other under section 22 or 23 of this 2001 Act. + }
SECTION 38. { + 308. Duration of contract. If an agreement
does not specify its duration, to the extent allowed by other
law, the following rules apply:
(1) Except as otherwise provided in subsection (2) of this
section, the agreement is enforceable for a time reasonable in
light of the licensed subject matter and commercial circumstances
but may be terminated as to future performances at will by either
party during that time on giving seasonable notice to the other
party.
(2) The duration of contractual rights to use licensed subject
matter is a time reasonable in light of the licensed
informational rights and the commercial circumstances. However,
subject to cancellation for breach of contract, the duration of
the license is perpetual as to the contractual rights and
contractual use terms if:
(a) The license is of a computer program that does not include
source code and the license:
(A) Transfers ownership of a copy; or
(B) Delivers a copy for a contract fee the total amount of
which is fixed at or before the time of delivery of the copy; or
(b) The license expressly grants the right to incorporate or
use the licensed information or informational rights with
information or informational rights from other sources in a
combined work for public distribution or public performance. + }
SECTION 39. { + 309. Agreement for performance to party's
satisfaction. (1) Except as otherwise provided in subsection (2)
of this section, an agreement that provides that the performance
of one party is to be to the satisfaction or approval of the
other party requires performance sufficient to satisfy a
reasonable person in the position of the party that must be
satisfied.
(2) Performance must be to the subjective satisfaction of the
other party if:
(a) The agreement expressly so provides, such as by stating
that approval is in the 'sole discretion' of the party, or words
of similar import; or
(b) The agreement is for informational content to be evaluated
in reference to subjective characteristics such as aesthetics,
appeal, suitability to taste or subjective quality. + }
{ +
WARRANTIES + }
SECTION 40. { + 401. Warranty and obligations concerning
noninterference and noninfringement. (1) A licensor of
information that is a merchant regularly dealing in information
of the kind warrants that the information will be delivered free
of the rightful claim of any third person by way of infringement
or misappropriation, but a licensee that furnishes detailed
specifications to the licensor and the method required for
meeting the specifications holds the licensor harmless against
any such claim that arises out of compliance with either the
required specification or the required method except for a claim
that results from the failure of the licensor to adopt, or notify
the licensee of, a noninfringing alternative of which the
licensor had reason to know.
(2) A licensor warrants:
(a) For the duration of the license, that no person holds a
rightful claim to, or interest in, the information which arose
from an act or omission of the licensor, other than a claim by
way of infringement or misappropriation, which will interfere
with the licensee's enjoyment of its interest; and
(b) As to rights granted exclusively to the licensee, that
within the scope of the license:
(A) To the knowledge of the licensor, any licensed patent
rights are valid and exclusive to the extent exclusivity and
validity are recognized by the law under which the patent rights
were created; and
(B) In all other cases, the licensed informational rights are
valid and exclusive for the information as a whole to the extent
exclusivity and validity are recognized by the law applicable to
the licensed rights in a jurisdiction to which the license
applies.
(3) The warranties in this section are subject to the following
rules:
(a) If the licensed informational rights are subject to a right
of privileged use, collective administration, or compulsory
licensing, the warranty is not made with respect to those rights.
(b) The obligations under subsections (1) and (2)(b) of this
section apply solely to informational rights arising under the
laws of the United States or a state, unless the contract
expressly provides that the warranty obligations extend to rights
under the laws of other countries. Language is sufficient for
this purpose if it states that the licensor warrants
'exclusivity, ' ' noninfringement,' 'in specified countries,'
'worldwide' or words of similar import. In that case, the
warranty extends to the specified country or, in the case of a
reference to 'worldwide ' or the like, to all countries within
the description, but only to the extent the rights are recognized
under a treaty or international convention to which the country
and the United States are signatories.
(c) The warranties under subsections (1) and (2)(b) of this
section are not made by a license that merely permits use, or
covenants not to claim infringement because of the use, of rights
under a licensed patent.
(4) Except as otherwise provided in subsection (5) of this
section, a warranty under this section may be disclaimed or
modified only by specific language or by circumstances that give
the licensee reason to know that the licensor does not warrant
that competing claims do not exist or that the licensor purports
to grant only the rights it may have. In an automated
transaction, language is sufficient if it is conspicuous.
Otherwise, language in a record is sufficient if it states 'There
is no warranty against interference with your enjoyment of the
information or against infringement,' or words of similar import.
(5) Between merchants, a grant of a 'quitclaim,' or a grant in
similar terms, grants the information or informational rights
without an implied warranty as to infringement or
misappropriation or as to the rights actually possessed or
transferred by the licensor. + }
SECTION 41. { + 402. Express warranty. (1) Subject to
subsection (3) of this section, an express warranty by a licensor
is created as follows:
(a) An affirmation of fact or promise made by the licensor to
its licensee, including by advertising, which relates to the
information and becomes part of the basis of the bargain creates
an express warranty that the information to be furnished under
the agreement will conform to the affirmation or promise.
(b) Any description of the information which is made part of
the basis of the bargain creates an express warranty that the
information will conform to the description.
(c) Any sample, model or demonstration of a final product that
is made part of the basis of the bargain creates an express
warranty that the performance of the information will reasonably
conform to the performance of the sample, model or demonstration,
taking into account differences that would appear to a reasonable
person in the position of the licensee between the sample, model
or demonstration and the information as it will be used.
(2) It is not necessary to the creation of an express warranty
that the licensor use formal words, such as 'warranty ' or
'guaranty,' or state a specific intention to make a warranty.
However, an express warranty is not created by:
(a) An affirmation or prediction merely of the value of the
information or informational rights;
(b) A display or description of a portion of the information to
illustrate the aesthetics, appeal, suitability to taste,
subjective quality, or the like of informational content; or
(c) A statement purporting to be merely opinion or commendation
of the information or informational rights.
(3) An express warranty or similar express contractual
obligation, if any, exists with respect to published
informational content covered by sections 2 to 108 of this 2001
Act to the same extent that it would exist if the published
informational content had been published in a form that placed it
outside sections 2 to 108 of this 2001 Act. However, if the
warranty or similar express contractual obligation is breached,
the remedies of the aggrieved party are those under sections 2 to
108 of this 2001 Act and the agreement. + }
SECTION 42. { + 403. Implied warranty: merchantability of
computer program. (1) Unless the warranty is disclaimed or
modified, a licensor that is a merchant with respect to computer
programs of the kind warrants:
(a) To the end user that the computer program is fit for the
ordinary purposes for which such computer programs are used;
(b) To the distributor that:
(A) The program is adequately packaged and labeled as the
agreement requires; and
(B) In the case of multiple copies, the copies are within the
variations permitted by the agreement, of even kind, quality and
quantity within each unit and among all units involved; and
(c) That the program conforms to any promises or affirmations
of fact made on the container or label.
(2) Unless disclaimed or modified, other implied warranties
with respect to computer programs may arise from course of
dealing or usage of trade.
(3) No warranty is created under this section with respect to
informational content, but an implied warranty may arise under
section 43 of this 2001 Act. + }
SECTION 43. { + 404. Implied warranty: informational content.
(1) Unless the warranty is disclaimed or modified, a merchant
that, in a special relationship of reliance with a licensee,
collects, compiles, processes, provides, or transmits
informational content warrants to that licensee that there is no
inaccuracy in the informational content caused by the merchant's
failure to perform with reasonable care.
(2) A warranty does not arise under subsection (1) of this
section with respect to:
(a) Published informational content; or
(b) A person that acts as a conduit or provides no more than
editorial services in collecting, compiling, distributing,
processing, providing, or transmitting informational content that
under the circumstances can be identified as that of a third
person.
(3) The warranty under this section is not subject to the
preclusion in section 13 (1)(a) of this 2001 Act on disclaiming
obligations of diligence, reasonableness or care. + }
SECTION 44. { + 405. Implied warranty: licensee's purpose;
system integration. (1) Unless the warranty is disclaimed or
modified, if a licensor at the time of contracting has reason to
know any particular purpose for which the computer information is
required and that the licensee is relying on the licensor's skill
or judgment to select, develop, or furnish suitable information,
the following rules apply:
(a) Except as otherwise provided in paragraph (b) of this
subsection, there is an implied warranty that the information is
fit for that purpose.
(b) If from all the circumstances it appears that the licensor
was to be paid for the amount of its time or effort regardless of
the fitness of the resulting information, the warranty under
paragraph (a) of this subsection is that the information will not
fail to achieve the licensee's particular purpose as a result of
the licensor's lack of reasonable effort.
(2) There is no warranty under subsection (1) of this section
with regard to:
(a) The aesthetics, appeal, suitability to taste, or subjective
quality of informational content; or
(b) Published informational content, but there may be a
warranty with regard to the licensor's selection among published
informational content from different providers if the selection
is made by an individual acting as or on behalf of the licensor.
(3) If an agreement requires a licensor to provide or select a
system consisting of computer programs and goods, and the
licensor has reason to know that the licensee is relying on the
skill or judgment of the licensor to select the components of the
system, there is an implied warranty that the components provided
or selected will function together as a system.
(4) The warranty under this section is not subject to the
preclusion in section 13 (1)(a) of this 2001 Act on disclaiming
diligence, reasonableness or care. + }
SECTION 45. { + 406. Disclaimer or modification of warranty.
(1) Words or conduct relevant to the creation of an express
warranty and words or conduct tending to disclaim or modify an
express warranty must be construed wherever reasonable as
consistent with each other. Subject to section 31 of this 2001
Act with regard to parol or extrinsic evidence, the disclaimer or
modification is inoperative to the extent that such construction
is unreasonable.
(2) Except as otherwise provided in subsections (3), (4) and
(5) of this section, to disclaim or modify an implied warranty or
any part of it, but not the warranty in section 40 of this 2001
Act, the following rules apply:
(a) Except as otherwise provided in this subsection:
(A) To disclaim or modify the implied warranty arising under
section 42 of this 2001 Act, language must mention '
merchantability' or 'quality' or use words of similar import and,
if in a record, must be conspicuous.
(B) To disclaim or modify the implied warranty arising under
section 43 of this 2001 Act, language in a record must mention '
accuracy' or use words of similar import.
(b) Language to disclaim or modify the implied warranty arising
under section 44 of this 2001 Act must be in a record and be
conspicuous. It is sufficient to state 'There is no warranty that
this information, our efforts, or the system will fulfill any of
your particular purposes or needs,' or words of similar import.
(c) Language in a record is sufficient to disclaim all implied
warranties if it individually disclaims each implied warranty or,
except for the warranty in section 40 of this 2001 Act, if it is
conspicuous and states 'Except for express warranties stated in
this contract, if any, this 'information ' ' computer program' is
provided with all faults, and the entire risk as to satisfactory
quality, performance, accuracy, and effort is with the user,' or
words of similar import.
(d) A disclaimer or modification sufficient under ORS 72.1010
to 72.7250 or ORS chapter 72A to disclaim or modify an implied
warranty of merchantability is sufficient to disclaim or modify
the warranties under sections 42 and 43 of this 2001 Act. A
disclaimer or modification sufficient under ORS 72.1010 to
72.7250 or ORS chapter 72A to disclaim or modify an implied
warranty of fitness for a particular purpose is sufficient to
disclaim or modify the warranties under section 44 of this 2001
Act.
(3) Unless the circumstances indicate otherwise, all implied
warranties, but not the warranty under section 40 of this 2001
Act, are disclaimed by expressions like 'as is' or 'with all
faults' or other language that in common understanding calls the
licensee's attention to the disclaimer of warranties and makes
plain that there are no implied warranties.
(4) If a licensee before entering into a contract has examined
the information or the sample or model as fully as it desired or
has refused to examine the information, there is no implied
warranty with regard to defects that an examination ought in the
circumstances to have revealed to the licensee.
(5) An implied warranty may also be disclaimed or modified by
course of performance, course of dealing or usage of trade.
(6) If a contract requires ongoing performance or a series of
performances by the licensor, language of disclaimer or
modification which complies with this section is effective with
respect to all performances under the contract.
(7) Remedies for breach of warranty may be limited in
accordance with sections 2 to 108 of this 2001 Act with respect
to liquidation or limitation of damages and contractual
modification of remedy. + }
SECTION 46. { + 407. Modification of computer program. A
licensee that modifies a computer program, other than by using a
capability of the program intended for that purpose in the
ordinary course, does not invalidate any warranty regarding
performance of an unmodified copy but does invalidate any
warranties, express or implied, regarding performance of the
modified copy. A modification occurs if a licensee alters code
in, deletes code from, or adds code to the computer program. + }
SECTION 47. { + 408. Cumulation and conflict of warranties.
Warranties, whether express or implied, must be construed as
consistent with each other and as cumulative, but if that
construction is unreasonable, the intention of the parties
determines which warranty is dominant. In ascertaining that
intention, the following rules apply:
(1) Exact or technical specifications displace an inconsistent
sample or model or general language of description.
(2) A sample displaces inconsistent general language of
description.
(3) Express warranties displace inconsistent implied warranties
other than an implied warranty under section 44 (1) of this 2001
Act. + }
SECTION 48. { + 409. Third-party beneficiaries of warranty.
(1) Except for published informational content, a warranty to a
licensee extends to persons for whose benefit the licensor
intends to supply the information or informational rights and
which rightfully use the information in a transaction or
application of a kind in which the licensor intends the
information to be used.
(2) A warranty to a consumer extends to each individual
consumer in the licensee's immediate family or household if the
individual's use would have been reasonably expected by the
licensor.
(3) A contractual term that excludes or limits the persons to
which a warranty extends is effective except as to individuals
described in subsection (2) of this section.
(4) A disclaimer or modification of a warranty or remedy that
is effective against the licensee is also effective against third
persons to which a warranty extends under this section. + }
{ +
TRANSFER OF INTERESTS AND RIGHTS + }
{ +
(Ownership and Transfers) + }
SECTION 49. { + 501. Ownership of informational rights. (1)
If an agreement provides for conveyance of ownership of
informational rights in a computer program, ownership passes at
the time and place specified by the agreement but does not pass
until the program is in existence and identified to the contract.
If the agreement does not specify a different time, ownership
passes when the program and the informational rights are in
existence and identified to the contract.
(2) Transfer of a copy does not transfer ownership of
informational rights. + }
SECTION 50. { + 502. Title to copy. (1) In a license:
(a) Title to a copy is determined by the license;
(b) A licensee's right under the license to possession or
control of a copy is governed by the license and does not depend
solely on title to the copy; and
(c) If a licensor reserves title to a copy, the licensor
retains title to that copy and any copies made of it, unless the
license grants the licensee a right to make and sell copies to
others, in which case the reservation of title applies only to
copies delivered to the licensee by the licensor.
(2) If an agreement provides for transfer of title to a copy,
title passes:
(a) At the time and place specified in the agreement; or
(b) If the agreement does not specify a time and place:
(A) With respect to delivery of a copy on a tangible medium, at
the time and place the licensor completed its obligations with
respect to tender of the copy; or
(B) With respect to electronic delivery of a copy, if a first
sale occurs under federal copyright law, at the time and place at
which the licensor completed its obligations with respect to
tender of the copy.
(3) If the party to which title passes under the contract
refuses delivery of the copy or rejects the terms of the
agreement, title revests in the licensor. + }
SECTION 51. { + 503. Transfer of contractual interest. The
following rules apply to a transfer of a contractual interest:
(1) A party's contractual interest may be transferred unless
the transfer:
(a) Is prohibited by other law; or
(b) Except as otherwise provided in subsection (3) of this
section, would materially change the duty of the other party,
materially increase the burden or risk imposed on the other
party, or materially impair the other party's property or its
likelihood or expectation of obtaining return performance.
(2) Except as otherwise provided in subsection (3) of this
section and section 56 (1)(a)(B) of this 2001 Act, a term
prohibiting transfer of a party's contractual interest is
enforceable, and a transfer made in violation of that term is a
breach of contract and is ineffective to create contractual
rights in the transferee against the nontransferring party,
except to the extent that:
(a) The contract is a license for incorporation or use of the
licensed information or informational rights with information or
informational rights from other sources in a combined work for
public distribution or public performance and the transfer is of
the completed, combined work; or
(b) The transfer is of a right to payment arising out of the
transferor's due performance of less than its entire obligation
and the transfer would be enforceable under subsection (1) of
this section in the absence of the term prohibiting transfer.
(3) A right to damages for breach of the whole contract or a
right to payment arising out of the transferor's due performance
of its entire obligation may be transferred notwithstanding an
agreement otherwise.
(4) A term that prohibits transfer of a contractual interest
under a mass-market license by the licensee must be
conspicuous. + }
SECTION 52. { + 504. Effect of transfer of contractual
interest. (1) A transfer of 'the contract' or of 'all my rights
under the contract,' or a transfer in similar general terms, is a
transfer of all contractual interests under the contract. Whether
the transfer is effective is determined by sections 51 and 56
(1)(a)(B) of this 2001 Act.
(2) The following rules apply to a transfer of a party's
contractual interests:
(a) The transferee is subject to all contractual use terms.
(b) Unless the language or circumstances otherwise indicate, as
in a transfer as security, the transfer delegates the duties of
the transferor and transfers its rights.
(c) Acceptance of the transfer is a promise by the transferee
to perform the delegated duties. The promise is enforceable by
the transferor and any other party to the original contract.
(d) The transfer does not relieve the transferor of any duty to
perform, or of liability for breach of contract, unless the other
party to the original contract agrees that the transfer has that
effect.
(3) A party to the original contract, other than the
transferor, may treat a transfer that conveys a right or duty of
performance without its consent as creating reasonable grounds
for insecurity and, without prejudice to the party's rights
against the transferor, may demand assurances from the transferee
under section 85 of this 2001 Act. + }
SECTION 53. { + 505. Performance by delegate; subcontract.
(1) A party may perform its contractual duties or exercise its
contractual rights through a delegate or a subcontract unless:
(a) The contract prohibits delegation or subcontracting; or
(b) The other party has a substantial interest in having the
original promisor perform or control the performance.
(2) Delegating or subcontracting performance does not relieve
the delegating party of a duty to perform or of liability for
breach.
(3) An attempted delegation that violates a term prohibiting
delegation is not effective. + }
SECTION 54. { + 506. Transfer by licensee. (1) If all or any
part of a licensee's interest in a license is transferred,
voluntarily or involuntarily, the transferee does not acquire an
interest in information, copies, or the contractual or
informational rights of the licensee unless the transfer is
effective under section 51 or 56 (1)(a)(B) of this 2001 Act. If
the transfer is effective, the transferee takes subject to the
terms of the license.
(2) Except as otherwise provided under trade secret law, a
transferee acquires no more than the contractual interest or
other rights that the transferor was authorized to transfer. + }
{ +
(Financing Arrangements) + }
SECTION 55. { + 507. Financing if financier does not become
licensee. If a financier does not become a licensee in connection
with its financial accommodation contract, the following rules
apply:
(1) The financier does not receive the benefits or burdens of
the license.
(2) The licensee's rights and obligations with respect to the
information and informational rights are governed by:
(a) The license;
(b) Any rights of the licensor under other law; and
(c) To the extent not inconsistent with, any financial
accommodation contract between the financier and the licensee,
which may add additional conditions to the licensee's right to
use the licensed information or informational rights. + }
SECTION 56. { + 508. Finance licenses. (1) If a financier
becomes a licensee in connection with its financial accommodation
contract and then transfers its contractual interest under the
license, or sublicenses the licensed computer information or
informational rights, to a licensee receiving the financial
accommodation, the following rules apply:
(a) The transfer or sublicense to the accommodated licensee is
not effective unless:
(A) The transfer or sublicense is effective under section 51 of
this 2001 Act; or
(B) The following conditions are fulfilled:
(i) Before the licensor delivered the information or granted
the license to the financier, the licensor received notice in a
record from the financier giving the name and location of the
accommodated licensee and clearly indicating that the license was
being obtained in order to transfer the contractual interest or
sublicense the licensed information or informational rights to
the accommodated licensee;
(ii) The financier became a licensee solely to make the
financial accommodation; and
(iii) The accommodated licensee adopts the terms of the
license, which terms may be supplemented by the financial
accommodation contract, to the extent the terms of the financial
accommodation contract are not inconsistent with the license and
any rights of the licensor under other law.
(b) A financier that makes a transfer that is effective under
may make only the single transfer or sublicense contemplated by
the notice unless the licensor consents to a later transfer.
(2) If a financier makes an effective transfer of its
contractual interest in a license, or an effective sublicense of
the licensed information or informational rights, to an
accommodated licensee, the following rules apply:
(a) The accommodated licensee's rights and obligations are
governed by:
(A) The license;
(B) Any rights of the licensor under other law; and
(C) To the extent not inconsistent with, the financial
accommodation contract, which may impose additional conditions to
the licensee's right to use the licensed information or
informational rights.
(b) The financier does not make warranties to the accommodated
licensee other than the warranty under section 40 (2)(a) of this
2001 Act and any express warranties in the financial
accommodation contract. + }
SECTION 57. { + 509. Financing arrangements: obligations
irrevocable. Unless the accommodated licensee is a consumer, a
term in a financial accommodation contract providing that the
accommodated licensee's obligations to the financier are
irrevocable and independent is enforceable. The obligations
become irrevocable and independent upon the licensee's acceptance
of the license or the financier's giving of value, whichever
occurs first. + }
SECTION 58. { + 510. Financing arrangements: remedies or
enforcement. (1) Except as otherwise provided in subsection (2)
of this section, on material breach of a financial accommodation
contract by the accommodated licensee, the following rules apply:
(a) The financier may cancel the financial accommodation
contract.
(b) Subject to paragraphs (c) and (d) of this subsection, the
financier may pursue its remedies against the accommodated
licensee under the financial accommodation contract.
(c) If the financier became a licensee and made a transfer or
sublicense that was effective under section 56 of this 2001 Act,
it may exercise the remedies of a licensor for breach, including
the rights of an aggrieved party under section 102 of this 2001
Act, subject to the limitations of section 103 of this 2001 Act.
(d) If the financier did not become a licensee or did not make
a transfer that was effective under section 56 of this 2001 Act,
it may enforce a contractual right contained in the financial
accommodation contract to preclude the licensee's further use of
the information. However, the following rules apply:
(A) The financier has no right to take possession of copies,
use the information or informational rights, or transfer any
contractual interest in the license.
(B) If the accommodated licensee agreed to transfer possession
of copies to the financier in the event of material breach of the
financial accommodation contract, the financier may enforce that
contractual right only if permitted to do so under subsection
(2)(a) of this section and section 51 of this 2001 Act.
(2) The following additional limitations apply to a financier's
remedies under subsection (1) of this section:
(a) A financier described in subsection (1)(c) of this section
that is entitled under the financial accommodation contract to
take possession or prevent use of information, copies or related
materials may do so only if the licensor consents or if doing so
would not result in a material adverse change of the duty of the
licensor, materially increase the burden or risk imposed on the
licensor, disclose or threaten to disclose trade secrets or
confidential material of the licensor, or materially impair the
licensor's likelihood or expectation of obtaining return
performance.
(b) The financier may not otherwise exercise control over, have
access to, or sell, transfer or otherwise use the information or
copies without the consent of the licensor unless the financier
or transferee is subject to the terms of the license and:
(A) The licensee owns the licensed copy, the license does not
preclude transfer of the licensee's contractual rights, and the
transfer complies with federal copyright law for the owner of a
copy to make the transfer; or
(B) The license is transferable by its express terms and the
financier fulfills any conditions to, or complies with any
restrictions on, transfer.
(c) The financier's remedies under the financial accommodation
contract are subject to the licensor's rights and the terms of
the license. + }
SECTION 59. { + 511. Financing arrangements: effect on
licensor's rights. + } { + (1) The creation of a financier's
interest does not place any obligations on or alter the rights of
a licensor.
(2) A financier's interest does not attach to any intellectual
property rights of the licensor unless the licensor expressly
consents to such attachment in a license or another record. + }
{ +
PERFORMANCE + }
{ +
(General) + }
SECTION 60. { + 601. Performance of contract in general. (1)
A party shall perform in a manner that conforms to the contract.
(2) If an uncured material breach of contract by one party
precedes the aggrieved party's performance, the aggrieved party
need not perform except with respect to restrictions in
contractual use terms, but the contractual use terms do not apply
to information or copies properly received or obtained from
another source. In addition, the following rules apply:
(a) The aggrieved party may refuse a performance that is a
material breach as to that performance or a performance that may
be refused under section 81 (2) of this 2001 Act.
(b) The aggrieved party may cancel the contract only if the
breach is a material breach of the whole contract or the
agreement so provides.
(3) Except as otherwise provided in subsection (2) of this
section, tender of performance by a party entitles the party to
acceptance of that performance. In addition, the following rules
apply:
(a) A tender of performance occurs when the party, with
manifest present ability and willingness to perform, offers to
complete the performance.
(b) If a performance by the other party is due at the time of
the tendered performance, tender of the other party's performance
is a condition to the tendering party's obligation to complete
the tendered performance.
(c) A party shall pay or render the consideration required by
the agreement for a performance it accepts. A party that accepts
a performance has the burden of establishing a breach of contract
with respect to the accepted performance.
(4) Except as otherwise provided in sections 62 and 63 of this
2001 Act, in the case of a performance with respect to a copy,
this section is subject to sections 65 to 69 and 81 to 84 of this
2001 Act. + }
SECTION 61. { + 602. Licensor's obligations to enable use.
(1) In this section, 'enable use' means to grant a contractual
right or permission with respect to information or informational
rights and to complete the acts, if any, required under the
agreement to make the information available to the licensee.
(2) A licensor shall enable use by the licensee pursuant to the
contract. The following rules apply to enabling use:
(a) If nothing other than the grant of a contractual right or
permission is required to enable use, the licensor enables use
when the contract becomes enforceable.
(b) If the agreement requires delivery of a copy, enabling use
occurs when the copy is tendered to the licensee.
(c) If the agreement requires delivery of a copy and steps
authorizing the licensee's use, enabling use occurs when the last
of those acts occurs.
(d) In an access contract, enabling use requires tendering all
access material necessary to enable the agreed access.
(e) If the agreement requires a transfer of ownership of
informational rights and a filing or recording is allowed by law
to establish priority of the transferred ownership, on request by
the licensee, the licensor shall execute and tender a record
appropriate for that purpose. + }
SECTION 62. { + 603. Submissions of information to
satisfaction of party. If an agreement requires that submitted
information be to the satisfaction of the recipient, the
following rules apply:
(1) Sections 65 to 69 and 81 to 84 of this 2001 Act do not
apply to the submission.
(2) If the information is not satisfactory to the recipient and
the parties engage in efforts to correct the deficiencies in a
manner and over a time consistent with the ordinary standards of
the business, trade, or industry, neither the efforts nor the
passage of time required for the efforts is an acceptance or a
refusal of the submission.
(3) Except as otherwise provided in subsection (4) of this
section, neither refusal nor acceptance occurs unless the
recipient expressly refuses or accepts the submitted information,
but the recipient may not use the submitted information before
acceptance.
(4) Silence and a failure to act in reference to a submission
beyond a commercially reasonable time to respond entitle the
submitting party to demand, in a record delivered to the
recipient, a decision on the submission. If the recipient fails
to respond within a reasonable time after receipt of the demand,
the submission is deemed to have been refused. + }
SECTION 63. { + 604. Immediately completed performance. If a
performance involves delivery of information or services which,
because of their nature, may provide a licensee, immediately on
performance or delivery, with substantially all the benefit of
the performance or with other significant benefit that cannot be
returned, the following rules apply:
(1) Sections 66 to 69 and 81 to 84 of this 2001 Act do not
apply.
(2) The rights of the parties are determined under section 60
of this 2001 Act and the ordinary standards of the business,
trade or industry.
(3) Before tender of the performance, a party entitled to
receive the tender may inspect the media, labels or packaging but
may not view the information or otherwise receive the performance
before completing any performance of its own that is then
due. + }
SECTION 64. { + 605. Electronic regulation of performance.
(1) In this section, 'automatic restraint' means a program, code,
device or similar electronic or physical limitation the intended
purpose of which is to restrict use of information.
(2) A party entitled to enforce a limitation on use of
information may include an automatic restraint in the information
or a copy of it and use that restraint if:
(a) A term of the agreement authorizes use of the restraint;
(b) The restraint prevents a use that is inconsistent with the
agreement;
(c) The restraint prevents use after expiration of the stated
duration of the contract or a stated number of uses; or
(d) The restraint prevents use after the contract terminates,
other than on expiration of a stated duration or number of uses,
and the licensor gives reasonable notice to the licensee before
further use is prevented.
(3) This section does not authorize an automatic restraint that
affirmatively prevents or makes impracticable a licensee's access
to its own information or information of a third party, other
than the licensor, if that information is in the possession of
the licensee or a third party and accessed without use of the
licensor's information or informational rights.
(4) A party that includes or uses an automatic restraint
consistent with subsection (2) or (3) of this section is not
liable for any loss caused by the use of the restraint.
(5) This section does not preclude electronic replacement or
disabling of an earlier copy of information by the licensor in
connection with delivery of a new copy or version under an
agreement to replace or disable the earlier copy by electronic
means with an upgrade or other new information.
(6) This section does not authorize use of an automatic
restraint to enforce remedies in the event of breach of contract
or of cancellation for breach. + }
{ +
(Performance in Delivery of Copies) + }
SECTION 65. { + 606. Copy: delivery; tender of delivery. (1)
Delivery of a copy must be at the location designated by
agreement. In the absence of a designation, the following rules
apply:
(a) The place for delivery of a copy on a tangible medium is
the tendering party's place of business or, if it has none, its
residence. However, if the parties know at the time of
contracting that the copy is located in some other place, that
place is the place for delivery.
(b) The place for electronic delivery of a copy is an
information processing system designated or used by the licensor.
(c) Documents of title may be delivered through customary
banking channels.
(2) Tender of delivery of a copy requires the tendering party
to put and hold a conforming copy at the other party's
disposition and give the other party any notice reasonably
necessary to enable it to obtain access to, control, or
possession of the copy. Tender must be at a reasonable hour and,
if applicable, requires tender of access material and other
documents required by the agreement. The party receiving tender
shall furnish facilities reasonably suited to receive tender. In
addition, the following rules apply:
(a) If the contract requires delivery of a copy held by a third
person without being moved, the tendering party shall tender
access material or documents required by the agreement.
(b) If the tendering party is required or authorized to send a
copy to the other party and the contract does not require the
tendering party to deliver the copy at a particular destination,
the following rules apply:
(A) In tendering delivery of a copy on a tangible medium, the
tendering party shall put the copy in the possession of a carrier
and make a contract for its transportation that is reasonable in
light of the nature of the information and other circumstances,
with expenses of transportation to be borne by the receiving
party.
(B) In tendering electronic delivery of a copy, the tendering
party shall initiate or cause to have initiated a transmission
that is reasonable in light of the nature of the information and
other circumstances, with expenses of transmission to be borne by
the receiving party.
(c) If the tendering party is required to deliver a copy at a
particular destination, the tendering party shall make a copy
available at that destination and bear the expenses of
transportation or transmission. + }
SECTION 66. { + 607. Copy: performance related to delivery;
payment. (1) If performance requires delivery of a copy, the
following rules apply:
(a) The party required to deliver need not complete a tendered
delivery until the receiving party tenders any performance then
due.
(b) Tender of delivery is a condition of the other party's duty
to accept the copy and entitles the tendering party to acceptance
of the copy.
(2) If payment is due on delivery of a copy, the following
rules apply:
(a) Tender of delivery is a condition of the receiving party's
duty to pay and entitles the tendering party to payment according
to the contract.
(b) All copies required by the contract must be tendered in a
single delivery, and payment is due only on tender.
(3) If the circumstances give either party the right to make or
demand delivery in lots, the contract fee, if it can be
apportioned, may be demanded for each lot.
(4) If payment is due and demanded on delivery of a copy or on
delivery of a document of title, the right of the party receiving
tender to retain or dispose of the copy or document, as against
the tendering party, is conditioned on making the payment
due. + }
SECTION 67. { + 608. Copy: right to inspect; payment before
inspection. (1) Except as otherwise provided in sections 62 and
63, if performance requires delivery of a copy, the following
rules apply:
(a) Except as otherwise provided in this section, the party
receiving the copy has a right before payment or acceptance to
inspect the copy at a reasonable place and time and in a
reasonable manner to determine conformance to the contract.
(b) The party making the inspection shall bear the expenses of
inspection.
(c) A place or method of inspection or an acceptance standard
fixed by the parties is presumed to be exclusive. However, the
fixing of a place, method, or standard does not postpone
identification to the contract or shift the place for delivery,
passage of title or risk of loss. If compliance with the place or
method becomes impossible, inspection must be made as provided in
this section unless the place or method fixed by the parties was
an indispensable condition the failure of which avoids the
contract.
(d) A party's right to inspect is subject to existing
obligations of confidentiality.
(2) If a right to inspect exists under subsection (1) of this
section but the agreement is inconsistent with an opportunity to
inspect before payment, the party does not have a right to
inspect before payment.
(3) If a contract requires payment before inspection of a copy,
nonconformity in the tender does not excuse the party receiving
the tender from making payment unless:
(a) The nonconformity appears without inspection and would
justify refusal under section 81 of this 2001 Act; or
(b) Despite tender of the required documents, the circumstances
would justify an injunction against honor of a letter of credit
under ORS chapter 75.
(4) Payment made under circumstances described in subsection
(2) or (3) of this section is not an acceptance of the copy and
does not impair a party's right to inspect or preclude any of the
party's remedies. + }
SECTION 68. { + 609. Copy: when acceptance occurs. (1)
Acceptance of a copy occurs when the party to which the copy is
tendered:
(a) Signifies, or acts with respect to the copy in a manner
that signifies, that the tender was conforming or that the party
will take or retain the copy despite the nonconformity;
(b) Does not make an effective refusal;
(c) Commingles the copy or the information in a manner that
makes compliance with the party's duties after refusal
impossible;
(d) Obtains a substantial benefit from the copy and cannot
return that benefit; or
(e) Acts in a manner inconsistent with the licensor's
ownership, but the act is an acceptance only if the licensor
elects to treat it as an acceptance and ratifies the act to the
extent it was within contractual use terms.
(2) Except in cases governed by subsection (1)(c) or (d) of
this section, if there is a right to inspect under section 67 of
this 2001 Act or the agreement, acceptance of a copy occurs only
after the party has had a reasonable opportunity to inspect the
copy.
(3) If an agreement requires delivery in stages involving
separate portions that taken together comprise the whole of the
information, acceptance of any stage is conditional until
acceptance of the whole. + }
SECTION 69. { + 610. Copy: effect of acceptance; burden of
establishing; notice of claims. (1) A party accepting a copy
shall pay or render the consideration required by the agreement
for the copy it accepts. Acceptance of a copy precludes refusal
and, if made with knowledge of a nonconformity in a tender, may
not be revoked because of the nonconformity unless acceptance was
on the reasonable assumption that the nonconformity would be
seasonably cured. Acceptance by itself does not impair any other
remedy for nonconformity.
(2) A party accepting a copy has the burden of establishing a
breach of contract with respect to the copy.
(3) If a copy has been accepted, the accepting party shall:
(a) Except with respect to claims of a type described in
section 92 (4)(a) of this 2001 Act, within a reasonable time
after it discovers or should have discovered a breach of
contract, notify the other party of the breach or be barred from
any remedy for the breach; and
(b) If the claim is for breach of a warranty regarding
noninfringement and the accepting party is sued by a third party
because of the breach, notify the warrantor within a reasonable
time after receiving notice of the litigation or be precluded
from any remedy over for the liability established by the
litigation. + }
{ +
(Special Types of Contracts) + }
SECTION 70. { + 611. Access contracts. (1) If an access
contract provides for access over a period of time, the following
rules apply:
(a) The licensee's rights of access are to the information as
modified and made commercially available by the licensor from
time to time during that period.
(b) A change in the content of the information is a breach of
contract only if the change conflicts with an express term of the
agreement.
(c) Unless it is subject to a contractual use term, information
obtained by the licensee is free of any use restriction other
than a restriction resulting from the informational rights of
another person or other law.
(d) Access must be available:
(A) At times and in a manner conforming to the express terms of
the agreement; and
(B) To the extent not expressly stated in the agreement, at
times and in a manner reasonable for the particular type of
contract in light of the ordinary standards of the business,
trade, or industry.
(2) In an access contract that gives the licensee a right of
access at times substantially of its own choosing during agreed
periods, an occasional failure to have access available during
those times is not a breach of contract if it is:
(a) Consistent with ordinary standards of the business, trade,
or industry for the particular type of contract; or
(b) Caused by:
(A) Scheduled downtime;
(B) Reasonable needs for maintenance;
(C) Reasonable periods of failure of equipment, computer
programs or communications; or
(D) Events reasonably beyond the licensor's control, and the
licensor exercises such commercially reasonable efforts as the
circumstances require. + }
SECTION 71. { + 612. Correction and support contracts. (1) If
a person agrees to provide services regarding the correction of
performance problems in computer information, other than an
agreement to cure its own existing breach of contract, the
following rules apply:
(a) If the services are provided by a licensor of the
information as part of a limited remedy, the licensor undertakes
that its performance will provide the licensee with information
that conforms to the agreement to which the limited remedy
applies.
(b) In all other cases, the person:
(A) Shall perform at a time and place and in a manner
consistent with the express terms of the agreement and, to the
extent not stated in the express terms, at a time and place and
in a manner that is reasonable in light of ordinary standards of
the business, trade or industry; and
(B) Does not undertake that its services will correct
performance problems unless the agreement expressly so provides.
(2) Unless required to do so by an express or implied warranty,
a licensor is not required to provide instruction or other
support for the licensee's use of information or access. A person
that agrees to provide support shall make the support available
in a manner and with a quality consistent with express terms of
the support agreement and, to the extent not stated in the
express terms, at a time and place and in a manner that is
reasonable in light of ordinary standards of the business, trade
or industry. + }
SECTION 72. { + 613. Contracts involving publishers, dealers,
and end users. (1) As used in this section:
(a) 'Dealer' means a merchant licensee that receives
information directly or indirectly from a licensor for sale or
license to end users.
(b) 'End user' means a licensee that acquires a copy of the
information from a dealer by delivery on a tangible medium for
the licensee's own use and not for sale, license, transmission to
third persons, or public display or performance for a fee.
(c) 'Publisher' means a licensor, other than a dealer, that
offers a license to an end user with respect to information
distributed by a dealer to the end user.
(2) In a contract between a dealer and an end user, if the end
user's right to use the information or informational rights is
subject to a license by the publisher and there was no
opportunity to review the license before the end user became
obligated to pay the dealer, the following rules apply:
(a) The contract between the end user and the dealer is
conditioned on the end user's agreement to the publisher's
license.
(b) If the end user does not agree, such as by manifesting
assent, to the terms of the publisher's license, the end user has
a right to a return from the dealer. A right under this paragraph
is a return for purposes of sections 12, 22 and 23 of this 2001
Act.
(c) The dealer is not bound by the terms, and does not receive
the benefits, of an agreement between the publisher and the end
user unless the dealer and end user adopt those terms as part of
the agreement.
(3) If an agreement provides for distribution of copies on a
tangible medium or in packaging provided by the publisher or an
authorized third party, a dealer may distribute those copies and
documentation only:
(a) In the form as received; and
(b) Subject to the terms of any license the publisher that the
publisher provides to the dealer to be furnished to end users.
(4) A dealer that enters into an agreement with an end user is
a licensor with respect to the end user under sections 2 to 108
of this 2001 Act. + }
{ +
(Loss and Impossibility) + }
SECTION 73. { + 614. Risk of loss of copy. (1) Except as
otherwise provided in this section, the risk of loss as to a copy
that is to be delivered to a licensee, including a copy delivered
by electronic means, passes to the licensee upon its receipt of
the copy.
(2) If an agreement requires or authorizes a licensor to send a
copy on a tangible medium by carrier, the following rules apply:
(a) If the agreement does not require the licensor to deliver
the copy at a particular destination, the risk of loss passes to
the licensee when the copy is duly delivered to the carrier, even
if the shipment is under reservation.
(b) If the agreement requires the licensor to deliver the copy
at a particular destination and the copy is duly tendered there
in the possession of the carrier, the risk of loss passes to the
licensee when the copy is tendered at that destination.
(c) If a tender of delivery of a copy or a shipping document
fails to conform to the contract, the risk of loss remains with
the licensor until cure or acceptance.
(3) If a copy is held by a third party to be delivered or
reproduced without being moved or a copy is to be delivered by
making access available to a third party resource containing a
copy, the risk of loss passes to the licensee upon:
(a) The licensee's receipt of a negotiable document of title or
other access materials covering the copy;
(b) Acknowledgment by the third party to the licensee of the
licensee's right to possession of or access to the copy; or
(c) The licensee's receipt of a record directing the third
party, pursuant to an agreement between the licensor and the
third party, to make delivery or authorizing the third party to
allow access. + }
SECTION 74. { + 615. Excuse by failure of presupposed
conditions. (1) Unless a party has assumed a different
obligation, delay in performance by a party, or nonperformance in
whole or part by a party, other than of an obligation to make
payments or to conform to contractual use terms, is not a breach
of contract if the delay or nonperformance is of a performance
that has been made impracticable by:
(a) The occurrence of a contingency the nonoccurrence of which
was a basic assumption on which the contract was made; or
(b) Compliance in good faith with any foreign or domestic
statute, governmental rule, regulation, or order, whether or not
it later proves to be invalid.
(2) A party claiming excuse under subsection (1) of this
section shall seasonably notify the other party that there will
be delay or nonperformance.
(3) If an excuse affects only a part of a party's capacity to
perform an obligation for delivery of copies, the party claiming
excuse shall allocate performance among its customers in any
manner that is fair and reasonable and notify the other party of
the estimated quota to be made available. In making the
allocation, the party claiming excuse may include the
requirements of regular customers not then under contract and its
own requirements.
(4) A party that receives notice pursuant to subsection (2) of
this section of a material or indefinite delay in delivery of
copies or of an allocation under subsection (3) of this section,
by notice in a record, may:
(a) Terminate and thereby discharge any executory portion of
the contract; or
(b) Modify the contract by agreeing to take the available
allocation in substitution.
(5) If, after receipt of notice under subsection (2) of this
section, a party does not modify the contract within a reasonable
time not exceeding 30 days, the contract lapses with respect to
any performance affected. + }
{ +
(Termination) + }
SECTION 75. { + 616. Termination: survival of obligations.
(1) Except as otherwise provided in subsection (2) of this
section, on termination all obligations that are still executory
on both sides are discharged.
(2) The following survive termination:
(a) A right based on previous breach or performance of the
contract;
(b) An obligation of confidentiality, nondisclosure, or
noncompetition to the extent enforceable under other law;
(c) A contractual use term applicable to any licensed copy or
information received from the other party, or copies made of it,
which are not returned or returnable to the other party;
(d) An obligation to deliver, or dispose of information,
materials, documentation, copies, records, or the like to the
other party, an obligation to destroy copies, or a right to
obtain information from an escrow agent;
(e) A choice of law or forum;
(f) An obligation to arbitrate or otherwise resolve disputes by
alternative dispute resolution procedures;
(g) A term limiting the time for commencing an action or for
giving notice;
(h) An indemnity term or a right related to a claim of a type
described in section 92 (4)(a) of this 2001 Act;
(i) A limitation of remedy or modification or disclaimer of
warranty;
(j) An obligation to provide an accounting and make any payment
due under the accounting; and
(k) Any term that the agreement provides will survive. + }
SECTION 76. { + 617. Notice of termination. (1) Except as
otherwise provided in subsection (2) of this section, a party may
not terminate a contract except on the happening of an agreed
event, such as the expiration of the stated duration, unless the
party gives reasonable notice of termination to the other party.
(2) An access contract may be terminated without giving notice.
However, except on the happening of an agreed event, termination
requires giving reasonable notice to the licensee if the access
contract pertains to information owned and provided by the
licensee to the licensor.
(3) A term dispensing with a notice required under this section
is invalid if its operation would be unconscionable. However, a
term specifying standards for giving notice is enforceable if the
standards are not manifestly unreasonable. + }
SECTION 77. { + 618. Termination: enforcement. (1) On
termination of a license, a party in possession or control of
information, copies, or other materials that are the property of
the other party, or are subject to a contractual obligation to be
delivered to that party on termination, shall use commercially
reasonable efforts to deliver or hold them for disposal on
instructions of that party. If any materials are jointly owned,
the party in possession or control shall make them available to
the joint owners.
(2) Termination of a license ends all right under the license
for the licensee to use or access the licensed information,
informational rights, or copies. Continued use of the licensed
copies or exercise of terminated rights is a breach of contract
unless authorized by a term that survives termination.
(3) Each party may enforce its rights under subsections (1) and
(2) of this section by acting pursuant to section 64 of this 2001
Act or by judicial process, including obtaining an order that the
party or an officer of the court take the following actions with
respect to any licensed information, documentation, copies or
other materials to be delivered:
(a) Deliver or take possession of them;
(b) Without removal, render unusable or eliminate the
capability to exercise contractual rights in or use of them;
(c) Destroy or prevent access to them; and
(d) Require that the party or any other person in possession or
control of them make them available to the other party at a place
designated by that party which is reasonably convenient to both
parties.
(4) In an appropriate case, a court of competent jurisdiction
may grant injunctive relief to enforce the parties' rights under
this section. + }
{ +
BREACH OF CONTRACT + }
{ +
(General) + }
SECTION 78. { + 701. Breach of contract; material breach. (1)
Whether a party is in breach of contract is determined by the
agreement or, in the absence of agreement, sections 2 to 108 of
this 2001 Act. A breach occurs if a party without legal excuse
fails to perform an obligation in a timely manner, repudiates a
contract, or exceeds a contractual use term, or otherwise is not
in compliance with an obligation placed on it by sections 2 to
108 of this 2001 Act or the agreement. A breach, whether or not
material, entitles the aggrieved party to its remedies. Whether a
breach of a contractual use term is an infringement or a
misappropriation is determined by applicable informational
property rights law.
(2) A breach of contract is material if:
(a) The contract so provides;
(b) The breach is a substantial failure to perform a term that
is an essential element of the agreement; or
(c) The circumstances, including the language of the agreement,
the reasonable expectations of the parties, the standards and
practices of the business, trade, or industry, and the character
of the breach, indicate that:
(A) The breach caused or is likely to cause substantial harm to
the aggrieved party; or
(B) The breach substantially deprived or is likely
substantially to deprive the aggrieved party of a significant
benefit it reasonably expected under the contract.
(3) The cumulative effect of nonmaterial breaches may be
material. + }
SECTION 79. { + 702. Waiver of remedy for breach of contract.
(1) A claim or right arising out of a breach of contract may be
discharged in whole or part without consideration by a waiver in
a record to which the party making the waiver agrees after
breach, such as by manifesting assent, or which the party making
the waiver authenticates and delivers to the other party.
(2) A party that accepts a performance with knowledge that the
performance constitutes a breach of contract and, within a
reasonable time after acceptance, does not notify the other party
of the breach waives all remedies for the breach, unless
acceptance was made on the reasonable assumption that the breach
would be cured and it has not been seasonably cured. However, a
party that seasonably notifies the other party of a reservation
of rights does not waive the rights reserved.
(3) A party that refuses a performance and fails to identify a
particular defect that is ascertainable by reasonable inspection
waives the right to rely on that defect to justify refusal only
if:
(a) The other party could have cured the defect if it were
identified seasonably; or
(b) Between merchants, the other party after refusal made a
request in a record for a full and final statement of all defects
on which the refusing party relied.
(4) Waiver of a remedy for breach of contract in one
performance does not waive any remedy for the same or a similar
breach in future performances unless the party making the waiver
expressly so states.
(5) A waiver may not be retracted as to the performance to
which the waiver applies.
(6) Except for a waiver made in accordance with subsection (1)
of this section or a waiver made supported by consideration, a
waiver affecting an executory portion of a contract may be
retracted by seasonable notice received by the other party that
strict performance will be required in the future, unless the
retraction would be unjust in view of a material change of
position in reliance on the waiver by that party. + }
SECTION 80. { + 703. Cure of breach of contract. (1) A party
in breach of contract may cure the breach at its own expense if:
(a) The time for performance has not expired and the party in
breach seasonably notifies the aggrieved party of its intent to
cure and, within the time for performance, makes a conforming
performance;
(b) The party in breach had reasonable grounds to believe the
performance would be acceptable with or without monetary
allowance, seasonably notifies the aggrieved party of its intent
to cure, and provides a conforming performance within a further
reasonable time after performance was due; or
(c) In a case not governed by paragraph (a) or (b) of this
subsection, the party in breach seasonably notifies the aggrieved
party of its intent to cure and promptly provides a conforming
performance before cancellation by the aggrieved party.
(2) In a license other than in a mass-market transaction, if
the agreement required a single delivery of a copy and the party
receiving tender of delivery was required to accept a
nonconforming copy because the nonconformity was not a material
breach of contract, the party in breach shall promptly and in
good faith make an effort to cure if:
(a) The party in breach receives seasonable notice of the
specific nonconformity and a demand for cure of it; and
(b) The cost of the effort to cure does not disproportionately
exceed the direct damages caused by the nonconformity to the
aggrieved party.
(3) A party may not cancel a contract or refuse a performance
because of a breach of contract that has been seasonably cured
under subsection (1) of this section. However, notice of intent
to cure does not preclude refusal or cancellation for the uncured
breach. + }
{ +
(Defective Copies) + }
SECTION 81. { + 704. Copy: refusal of defective tender. (1)
Subject to subsection (2) of this section and section 82 of this
2001 Act, tender of a copy that is a material breach of contract
permits the party to which tender is made to:
(a) Refuse the tender;
(b) Accept the tender; or
(c) Accept any commercially reasonable units and refuse the
rest.
(2) In a mass-market transaction that calls for only a single
tender of a copy, a licensee may refuse the tender if the tender
does not conform to the contract.
(3) Refusal of a tender is ineffective unless:
(a) It is made before acceptance;
(b) It is made within a reasonable time after tender or
completion of any permitted effort to cure; and
(c) The refusing party seasonably notifies the tendering party
of the refusal.
(4) Except in a case governed by subsection (2) of this
section, a party that rightfully refuses tender of a copy may
cancel the contract only if the tender was a material breach of
the whole contract or the agreement so provides. + }
SECTION 82. { + 705. Copy: contract with previous vested
grant of rights. If an agreement grants a right in or permission
to use informational rights which precedes or is otherwise
independent of the delivery of a copy, the following rules apply:
(1) A party may refuse a tender of a copy which is a material
breach as to that copy, but refusal of that tender does not
cancel the contract.
(2) In a case governed by subsection (1) of this section, the
tendering party may cure the breach by seasonably providing a
conforming copy before the breach becomes material as to the
whole contract.
(3) A breach that is material with respect to a copy allows
cancellation of the contract only if the breach cannot be
seasonably cured and is a material breach of the whole
contract. + }
SECTION 83. { + 706. Copy: duties upon rightful refusal. (1)
Except as otherwise provided in this section, after rightful
refusal or revocation of acceptance of a copy, the following
rules apply:
(a) If the refusing party rightfully cancels the contract,
section 89 of this 2001 Act applies and all restrictions in
contractual use terms continue.
(b) If the contract is not canceled, the parties remain bound
by all contractual obligations.
(2) On rightful refusal or revocation of acceptance of a copy,
the following rules apply to the extent consistent with section
89 of this 2001 Act:
(a) Any use, sale, display, performance or transfer of the copy
or information it contains, or any failure to comply with a
contractual use term, is a breach of contract. The licensee shall
pay the licensor the reasonable value of any use. However, use
for a limited time within contractual use terms is not a breach,
and is not an acceptance under section 68 (1)(e) of this 2001
Act, if it:
(A) Occurs after the tendering party is seasonably notified of
refusal;
(B) Is not for distribution and is solely part of measures
reasonable under the circumstances to avoid or reduce loss; and
(C) Is not contrary to instructions concerning disposition of
the copy received from the party in breach.
(b) A party that refuses a copy shall:
(A) Deliver the copy and all copies made of it, all access
materials, and documentation pertaining to the refused
information to the tendering party or hold them with reasonable
care for a reasonable time for disposal at that party's
instructions; and
(B) Follow reasonable instructions of the tendering party for
returning or delivering copies, access material, and
documentation, but instructions are not reasonable if the
tendering party does not arrange for payment of or reimbursement
for reasonable expenses of complying with the instructions.
(c) If the tendering party does not give instructions within a
reasonable time after being notified of refusal, the refusing
party, in a reasonable manner to reduce or avoid loss, may store
the copies, access material, and documentation for the tendering
party's account or ship them to the tendering party and is
entitled to reimbursement for reasonable costs of storage and
shipment.
(d) Both parties remain bound by all contractual use terms that
would have been enforceable had the performance not been refused.
(e) In complying with this section, the refusing party shall
act in good faith. Conduct in good faith under this section is
not acceptance or conversion and may not be a ground for an
action for damages under the contract. + }
SECTION 84. { + 707. Copy: revocation of acceptance. (1) A
party that accepts a nonconforming tender of a copy may revoke
acceptance only if the nonconformity is a material breach of
contract and the party accepted it:
(a) On the reasonable assumption that the nonconformity would
be cured, and the nonconformity was not seasonably cured;
(b) During a continuing effort by the party in breach at
adjustment and cure, and the breach was not seasonably cured; or
(c) Without discovery of the nonconformity, if acceptance was
reasonably induced either by the other party's assurances or by
the difficulty of discovery before acceptance.
(2) Revocation of acceptance is not effective until the
revoking party notifies the other party of the revocation.
(3) Revocation of acceptance of a copy is precluded if:
(a) It does not occur within a reasonable time after the party
attempting to revoke discovers or should have discovered the
ground for it;
(b) It occurs after a substantial change in condition not
caused by defects in the information, such as after the party
commingles the information in a manner that makes its return
impossible; or
(c) The party attempting to revoke received a substantial
benefit or value from the information, and the benefit or value
cannot be returned.
(4) A party that rightfully revokes has the same duties and is
under the same restrictions as if the party had refused tender of
the copy. + }
{ +
(Repudiation and Assurances) + }
SECTION 85. { + 708. Adequate assurance of performance. (1) A
contract imposes an obligation on each party not to impair the
other's expectation of receiving due performance. If reasonable
grounds for insecurity arise with respect to the performance of
either party, the aggrieved party may:
(a) Demand in a record adequate assurance of due performance;
and
(b) Until that assurance is received, if commercially
reasonable, suspend any performance, other than with respect to
restrictions in contractual use terms, for which the agreed
return performance has not been received.
(2) Between merchants, the reasonableness of grounds for
insecurity and the adequacy of any assurance offered is
determined according to commercial standards.
(3) Acceptance of any improper delivery or payment does not
impair an aggrieved party's right to demand adequate assurance of
future performance.
(4) After receipt of a justified demand under subsection (1) of
this section, failure, within a reasonable time not exceeding 30
days, to provide assurance of due performance which is adequate
under the circumstances of the particular case is a repudiation
of the contract under section 86 of this 2001 Act. + }
SECTION 86. { + 709. Anticipatory repudiation. (1) If a party
to a contract repudiates a performance not yet due and the loss
of performance will substantially impair the value of the
contract to the other party, the aggrieved party may:
(a) Await performance by the repudiating party for a
commercially reasonable time or resort to any remedy for breach
of contract, even if it has urged the repudiating party to
retract the repudiation or has notified the repudiating party
that it would await its performance; and
(b) In either case, suspend its own performance or proceed in
accordance with section 99 or 100 of this 2001 Act, as
applicable.
(2) Repudiation includes language that one party will not or
cannot make a performance still due under the contract or
voluntary, affirmative conduct that reasonably appears to the
other party to make a future performance impossible. + }
SECTION 87. { + 710. Retraction of anticipatory repudiation.
(1) A repudiating party may retract its repudiation until its
next performance is due unless the aggrieved party, after the
repudiation, has canceled the contract, materially changed its
position, or otherwise indicated that it considers the
repudiation final.
(2) A retraction may be by any method that clearly indicates to
the aggrieved party that the repudiating party intends to perform
the contract. However, a retraction must contain any assurance
justifiably demanded under section 85 of this 2001 Act.
(3) Retraction restores a repudiating party's rights under the
contract with due excuse and allowance to the aggrieved party for
any delay caused by the repudiation. + }
{ +
REMEDIES + }
{ +
(General) + }
SECTION 88. { + 801. Remedies in general. (1) The remedies
provided in sections 2 to 108 of this 2001 Act are cumulative,
but a party may not recover more than once for the same loss.
(2) Except as otherwise provided in sections 90 and 91 of this
2001 Act, if a party is in breach of contract, whether or not the
breach is material, the aggrieved party has the remedies provided
in the agreement or sections 2 to 108 of this 2001 Act, but the
aggrieved party shall continue to comply with any restrictions in
contractual use terms with respect to information or copies
received from the other party and the contractual use terms do
not apply to information or copies properly received or obtained
from another source.
(3) Rescission or a claim for rescission of the contract, or
refusal of the information, does not preclude and is not
inconsistent with a claim for damages or other remedy. + }
SECTION 89. { + 802. Cancellation. (1) An aggrieved party may
cancel a contract if there is a material breach that has not been
cured or waived or the agreement allows cancellation for the
breach.
(2) Cancellation is not effective until the canceling party
gives notice of cancellation to the party in breach, unless a
delay required to notify the party would cause or threaten
material harm or loss to the aggrieved party. The notification
may be in any form reasonable under the circumstances. However,
in an access contract, a party may cancel rights of access
without notice.
(3) On cancellation, the following rules apply:
(a) If a party is in possession or control of licensed
information, documentation, materials, or copies of licensed
information, the following rules apply:
(A) A party that has rightfully refused a copy shall comply
with section 83 (2) of this 2001 Act as to the refused copy.
(B) A party in breach of contract which would be subject to an
obligation to deliver under section 77 of this 2001 Act, shall
deliver all information, documentation, materials and copies to
the other party or hold them with reasonable care for a
reasonable time for disposal at that party's instructions. The
party in breach of contract shall follow any reasonable
instructions received from the other party.
(C) Except as otherwise provided in subparagraphs (A) and (B)
of this paragraph, the party shall comply with section 77 of this
2001 Act.
(b) All obligations that are executory on both sides at the
time of cancellation are discharged, but the following survive:
(A) Any right based on previous breach or performance; and
(B) The rights, duties and remedies described in section 75 (2)
of this 2001 Act.
(c) Cancellation of a license by the licensor ends any
contractual right of the licensee to use the information,
informational rights, copies or other materials.
(d) Cancellation of a license by the licensee ends any
contractual right to use the information, informational rights,
copies, or other materials, but the licensee may use the
information for a limited time after the license has been
canceled if the use:
(A) Is within contractual use terms;
(B) Is not for distribution and is solely part of measures
reasonable under the circumstances to avoid or reduce loss; and
(C) Is not contrary to instructions received from the party in
breach concerning disposition of them.
(e) The licensee shall pay the licensor the reasonable value of
any use after cancellation permitted under paragraph (d) of this
subsection.
(f) The obligations under this subsection apply to all
information, informational rights, documentation, materials, and
copies received by the party and any copies made therefrom.
(4) A term providing that a contract may not be canceled
precludes cancellation but does not limit other remedies.
(5) Unless a contrary intention clearly appears, an expression
such as 'cancellation,' 'rescission,' or the like may not be
construed as a renunciation or discharge of a claim in damages
for an antecedent breach. + }
SECTION 90. { + 803. Contractual modification of remedy. (1)
Except as otherwise provided in this section and in section 91 of
this 2001 Act:
(a) An agreement may provide for remedies in addition to or in
substitution for those provided in sections 2 to 108 of this 2001
Act and may limit or alter the measure of damages recoverable
under sections 2 to 108 of this 2001 Act or a party's other
remedies under sections 2 to 108 of this 2001 Act, such as by
precluding a party's right to cancel for breach of contract,
limiting remedies to returning or delivering copies and repayment
of the contract fee, or limiting remedies to repair or
replacement of the nonconforming copies; and
(b) Resort to a contractual remedy is optional unless the
remedy is expressly agreed to be exclusive, in which case it is
the sole remedy.
(2) Subject to subsection (3) of this section, if performance
of an exclusive or limited remedy causes the remedy to fail of
its essential purpose, the aggrieved party may pursue other
remedies under sections 2 to 108 of this 2001 Act.
(3) Failure or unconscionability of an agreed exclusive or
limited remedy makes a term disclaiming or limiting consequential
or incidental damages unenforceable unless the agreement
expressly makes the disclaimer or limitation independent of the
agreed remedy.
(4) Consequential damages and incidental damages may be
excluded or limited by agreement unless the exclusion or
limitation is unconscionable. Exclusion or limitation of
consequential damages for personal injury in a consumer contract
for a computer program that is subject to sections 2 to 108 of
this 2001 Act and is contained in consumer goods is prima facie
unconscionable, but exclusion or limitation of damages for a
commercial loss is not unconscionable. + }
SECTION 91. { + 804. Liquidation of damages. (1) Damages for
breach of contract by either party may be liquidated by agreement
in an amount that is reasonable in light of:
(a) The loss anticipated at the time of contracting;
(b) The actual loss; or
(c) The actual or anticipated difficulties of proving loss in
the event of breach.
(2) If a term liquidating damages is unenforceable under this
section, the aggrieved party may pursue the remedies provided in
sections 2 to 108 of this 2001 Act, except as limited by other
terms of the contract.
(3) If a party justifiably withholds delivery of copies because
of the other party's breach of contract, the party in breach is
entitled to restitution for any amount by which the sum of the
payments it made for the copies exceeds the amount of the
liquidated damages payable to the aggrieved party in accordance
with subsection (1) of this section. The right to restitution is
subject to offset to the extent that the aggrieved party
establishes:
(a) A right to recover damages other than under subsection (1)
of this section; and
(b) The amount or value of any benefits received by the party
in breach, directly or indirectly, by reason of the contract.
(4) A term that does not liquidate damages, but that limits
damages available to the aggrieved party, must be evaluated under
section 90 of this 2001 Act. + }
SECTION 92. { + 805. Limitation of actions. (1) Except as
otherwise provided in subsection (2) of this section, an action
for breach of contract must be commenced within the later of four
years after the right of action accrues or one year after the
breach was or should have been discovered, but not later than
five years after the right of action accrues.
(2) If the original agreement of the parties alters the period
of limitations, the following rules apply:
(a) The parties may reduce the period of limitation to not less
than one year after the right of action accrues but may not
extend it.
(b) In a consumer contract, the period of limitation may not be
reduced.
(3) Except as otherwise provided in subsection (4) of this
section, a right of action accrues when the act or omission
constituting a breach of contract occurs, even if the aggrieved
party did not know of the breach. A right of action for breach of
warranty accrues when tender of delivery of a copy pursuant to
section 65 of this 2001 Act, or access to the information,
occurs. However, if the warranty expressly extends to future
performance of the information or a copy, the right of action
accrues when the performance fails to conform to the warranty,
but not later than the date the warranty expires.
(4) In the following cases, a right of action accrues on the
later of the date the act or omission constituting the breach of
contract occurred or the date on which it was or should have been
discovered by the aggrieved party, but not earlier than the date
for delivery of a copy if the claim relates to information in the
copy:
(a) A breach of warranty against third-party claims for:
(A) Infringement or misappropriation; or
(B) Libel, slander or the like;
(b) A breach of contract involving a party's disclosure or
misuse of confidential information; or
(c) A failure to provide an indemnity or to perform another
obligation to protect or defend against a third-party claim.
(5) If an action commenced within the period of limitation is
so concluded as to leave available a remedy by another action for
the same breach of contract, the other action may be commenced
after expiration of the period of limitation if the action is
commenced within six months after conclusion of the first action,
unless the action was concluded as a result of voluntary
discontinuance or dismissal for failure or neglect to prosecute.
(6) This section does not alter the law on tolling of the
statute of limitations and does not apply to a right of action
that accrued before the effective date of this 2001 Act. + }
SECTION 93. { + 806. Remedies for fraud. Remedies for
material misrepresentation or fraud include all remedies
available under sections 2 to 108 of this 2001 Act for
nonfraudulent breach of contract. + }
{ +
(Damages) + }
SECTION 94. { + 807. Measurement of damages in general. (1)
Except as otherwise provided in the contract, an aggrieved party
may not recover compensation for that part of a loss which could
have been avoided by taking measures reasonable under the
circumstances to avoid or reduce loss. The burden of establishing
a failure of the aggrieved party to take measures reasonable
under the circumstances is on the party in breach of contract.
(2) A party may not recover:
(a) Consequential damages for losses resulting from the content
of published informational content unless the agreement expressly
so provides; or
(b) Damages that are speculative.
(3) The remedy for breach of contract for disclosure or misuse
of information that is a trade secret or in which the aggrieved
party has a right of confidentiality includes as consequential
damages compensation for the benefit obtained as a result of the
breach.
(4) For purposes of sections 2 to 108 of this 2001 Act, market
value is determined as of the date of breach of contract and the
place for performance.
(5) Damages or expenses that relate to events after the date of
entry of judgment must be reduced to their present value as of
that date. In this subsection, 'present value' means the amount,
as of a date certain, of one or more sums payable in the future
or the value of one or more performances due in the future,
discounted to the date certain. The discount is determined by the
interest rate specified by the parties in their agreement unless
that rate was manifestly unreasonable when the agreement was
entered into. Otherwise, the discount is determined by a
commercially reasonable rate that takes into account the
circumstances of each case when the agreement was entered
into. + }
SECTION 95. { + 808. Licensor's damages. (1) In this section,
' substitute transaction' means a transaction by the licensor
which would not have been possible except for the licensee's
breach and which transaction is for the same information or
informational rights with the same contractual use terms as the
transaction to which the licensee's breach applies.
(2) Except as otherwise provided in section 94 of this 2001
Act, a breach of contract by a licensee entitles the licensor to
recover the following compensation for losses resulting in the
ordinary course from the breach, less expenses avoided as a
result of the breach, to the extent not otherwise accounted for
under this subsection:
(a) Damages measured in any combination of the following ways
but not to exceed the contract fee and the market value of other
consideration required under the contract for the performance
that was the subject of the breach:
(A) The amount of accrued and unpaid contract fees and the
market value of other consideration earned but not received for:
(i) Any performance accepted by the licensee; and
(ii) Any performance to which section 63 of this 2001 Act
applies;
(B) For performances not governed by subparagraph (A) of this
paragraph, if the licensee repudiated or wrongfully refused the
performance or the licensor rightfully canceled and the breach
makes possible a substitute transaction, the amount of loss as
determined by contract fees and the market value of other
consideration required under the contract for the performance
less:
(i) The contract fees and market value of other consideration
received from an actual and commercially reasonable substitute
transaction entered into by the licensor in good faith and
without unreasonable delay; or
(ii) The market value of a commercially reasonable hypothetical
substitute transaction;
(C) For performances not governed by subparagraph (A) of this
paragraph, if the breach does not make possible a substitute
transaction, lost profit, including reasonable overhead, that the
licensor would have realized on acceptance and full payment for
performance that was not delivered to the licensee because of the
licensee's breach; or
(D) Damages calculated in any reasonable manner; and
(b) Consequential and incidental damages. + }
SECTION 96. { + 809. Licensee's damages. (1) Subject to
subsection (2) of this 2001 Act and except as otherwise provided
in section 94 of this 2001 Act, a breach of contract by a
licensor entitles the licensee to recover the following
compensation for losses resulting in the ordinary course from the
breach or, if appropriate, as to the whole contract, less
expenses avoided as a result of the breach to the extent not
otherwise accounted for under this section:
(a) Damages measured in any combination of the following ways,
but not to exceed the market value of the performance that was
the subject of the breach plus restitution of any amounts paid
for performance not received and not accounted for within the
indicated recovery:
(A) With respect to performance that has been accepted and the
acceptance not rightfully revoked, the value of the performance
required less the value of the performance accepted as of the
time and place of acceptance;
(B) With respect to performance that has not been rendered or
that was rightfully refused or acceptance of which was rightfully
revoked:
(i) The amount of any payments made and the value of other
consideration given to the licensor with respect to that
performance and not previously returned to the licensee;
(ii) The market value of the performance less the contract fee
for that performance; or
(iii) The cost of a commercially reasonable substitute
transaction less the contract fee under the breached contract, if
the substitute transaction was entered into by the licensee in
good faith and without unreasonable delay for substantially
similar information with the same contractual use terms; or
(C) Damages calculated in any reasonable manner; and
(b) Incidental and consequential damages.
(2) The amount of damages must be reduced by any unpaid
contract fees for performance by the licensor which has been
accepted by the licensee and as to which the acceptance has not
been rightfully revoked. + }
SECTION 97. { + 810. Recoupment. (1) Except as otherwise
provided in subsection (2) of this section, an aggrieved party,
upon notifying the party in breach of contract of its intention
to do so, may deduct all or any part of the damages resulting
from the breach from any payments still due under the same
contract.
(2) If a breach of contract is not material with reference to
the particular performance, an aggrieved party may exercise its
rights under subsection (1) of this section only if the agreement
does not require further affirmative performance by the other
party and the amount of damages deducted can be readily
liquidated under the agreement. + }
{ +
(Remedies Related to Performance) + }
SECTION 98. { + 811. Specific performance. (1) Specific
performance may be ordered:
(a) If the agreement provides for that remedy, other than an
obligation for the payment of money;
(b) If the contract was not for personal services and the
agreed performance is unique; or
(c) In other proper circumstances.
(2) An order for specific performance may contain any
conditions considered just and must provide adequate safeguards
consistent with the contract to protect the confidentiality of
information, information and informational rights of both
parties. + }
SECTION 99. { + 812. Completing performance. (1) On breach of
contract by a licensee, the licensor may:
(a) Identify to the contract any conforming copy not already
identified if, at the time the licensor learned of the breach,
the copy was in its possession;
(b) In the exercise of reasonable commercial judgment for
purposes of avoiding loss and effective realization on effort or
investment, complete the information and identify it to the
contract, cease work on it, relicense or dispose of it, or
proceed in any other commercially reasonable manner; and
(c) Pursue any remedy for breach that has not been waived.
(2) On breach by a licensee, both parties remain bound by all
restrictions in contractual use terms, but the contractual use
terms do not apply to information or copies properly received or
obtained from another source. + }
SECTION 100. { + 813. Continuing use. On breach of contract
by a licensor, the following rules apply:
(1) A licensee that has not canceled the contract may continue
to use the information and informational rights under the
contract. If the licensee continues to use the information or
informational rights, the licensee is bound by all terms of the
contract, including contractual use terms, obligations not to
compete, and obligations to pay contract fees.
(2) The licensee may pursue any remedy for breach that has not
been waived.
(3) The licensor's rights remain in effect but are subject to
the licensee's remedy for breach, including any right of
recoupment or setoff. + }
SECTION 101. { + 814. Discontinuing access. On material
breach of an access contract or if the agreement so provides, a
party may discontinue all contractual rights of access of the
party in breach and direct any person that is assisting the
performance of the contract to discontinue its performance. + }
SECTION 102. { + 815. Right to possession and to prevent use.
(1) On cancellation of a license, the licensor has the right:
(a) To possession of all copies of the licensed information in
the possession or control of the licensee and any other materials
pertaining to that information which by contract are to be
returned or delivered by the licensee to the licensor; and
(b) To prevent the continued exercise of contractual and
informational rights in the licensed information under the
license.
(2) Except as otherwise provided in section 101 of this 2001
Act, a licensor may exercise its rights under subsection (1) of
this section without judicial process only if this can be done:
(a) Without a breach of the peace;
(b) Without a foreseeable risk of personal injury or
significant physical damage to information or property other than
the licensed information; and
(c) In accordance with section 103 of this 2001 Act.
(3) In a judicial proceeding, the court may enjoin a licensee
in breach of contract from continued use of the information and
informational rights and may order the licensor or a judicial
officer to take the steps described in section 77 of this 2001
Act.
(4) A party has a right to an expedited judicial hearing on a
request for prejudgment relief to enforce or protect its rights
under this section.
(5) The right to possession under this section is not available
to the extent that the information, before breach of the license
and in the ordinary course of performance under the license, was
so altered or commingled that the information is no longer
identifiable or separable.
(6) A licensee that provides information to a licensor subject
to contractual use terms has the rights and is subject to the
limitations of a licensor under this section with respect to the
information it provides. + }
SECTION 103. { + 816. Limitations on electronic self-help.
(1) As used in this section, 'electronic self-help' means the use
of electronic means to exercise a licensor's rights under section
102 (2) of this 2001 Act.
(2) On cancellation of a license, electronic self-help is not
permitted, except as provided in this section. Electronic
self-help is prohibited in mass-market transactions.
(3) If the parties agree to permit electronic self-help, the
licensee shall separately manifest assent to a term authorizing
use of electronic self-help. The term must:
(a) Provide for notice of exercise as provided in subsection
(4) of this section;
(b) State the name of the person designated by the licensee to
which notice of exercise must be given and the manner in which
notice must be given and place to which notice must be sent to
that person; and
(c) Provide a simple procedure for the licensee to change the
designated person or place.
(4) Before resorting to electronic self-help authorized by a
term of the license, the licensor shall give notice in a record
to the person designated by the licensee stating:
(a) That the licensor intends to resort to electronic self-help
as a remedy on or after 15 days following receipt by the licensee
of the notice;
(b) The nature of the claimed breach that entitles the licensor
to resort to self-help; and
(c) The name, title and address, including direct telephone
number, facsimile number or e-mail address, to which the licensee
may communicate concerning the claimed breach.
(5) A licensee may recover direct and incidental damages caused
by wrongful use of electronic self-help. The licensee may also
recover consequential damages for wrongful use of electronic
self-help, whether or not those damages are excluded by the terms
of the license, if:
(a) Within the period specified in subsection (4)(a) of this
section, the licensee gives notice to the licensor's designated
person describing in good faith the general nature and magnitude
of damages;
(b) The licensor has reason to know the damages of the type
described in subsection (6) of this section may result from the
wrongful use of electronic self-help; or
(c) The licensor does not provide the notice required in
subsection (4) of this section.
(6) Even if the licensor complies with subsections (3) and (4)
of this section, electronic self-help may not be used if the
licensor has reason to know that its use will result in
substantial injury or harm to the public health or safety or
grave harm to the public interest substantially affecting third
persons not involved in the dispute.
(7) A court of competent jurisdiction of this state shall give
prompt consideration to a petition for injunctive relief and may
enjoin, temporarily or permanently, the licensor from exercising
electronic self-help even if authorized by a license term or
enjoin the licensee from misappropriation or misuse of computer
information, as may be appropriate, upon consideration of the
following:
(a) Grave harm of the kinds stated in subsection (6) of this
section, or the threat thereof, whether or not the licensor has
reason to know of those circumstances;
(b) Irreparable harm or threat of irreparable harm to the
licensee or licensor;
(c) That the party seeking the relief is more likely than not
to succeed under its claim when it is finally adjudicated;
(d) That all of the conditions to entitle a person to the
relief under the laws of this state have been fulfilled; and
(e) That the party that may be adversely affected is adequately
protected against loss, including a loss because of
misappropriation or misuse of computer information, that it may
suffer because the relief is granted under sections 2 to 108 of
this 2001 Act.
(8) Before breach of contract, rights or obligations under this
section may not be waived or varied by an agreement, but the
parties may prohibit use of electronic self-help, and the
parties, in the term referred to in subsection (3) of this
section, may specify additional provisions more favorable to the
licensee.
(9) This section does not apply if the licensor obtains
possession of a copy without a breach of the peace and the
electronic self-help is used solely with respect to that
copy. + }
{ +
MISCELLANEOUS PROVISIONS + }
SECTION 104. { + 901. Severability. If any provision of
sections 2 to 108 of this 2001 Act or its application to any
person or circumstances is held invalid, the invalidity does not
affect other provisions or applications of sections 2 to 108 of
this 2001 Act which can be given effect without the invalid
provision or application, and to this end the provisions of
sections 2 to 108 of this 2001 Act are severable. + }
SECTION 105. { + 902. Effective date. This 2001 Act takes
effect ______. + }
SECTION 106. { + 903. Repeals. The following acts and parts
of acts are repealed ______. + }
SECTION 107. { + 904. Previous rights and transactions.
Contracts that are enforceable and rights of action that accrue
before the effective date of this 2001 Act are governed by the
law then in effect unless the parties agree to be governed by
sections 2 to 108 of this 2001 Act. + }
SECTION 108. { + 905. Electronic signatures in global and
national commerce act. The provisions of sections 2 to 108 of
this 2001 Act governing the legal effect, validity, or
enforceability of electronic records or signatures, and of
contracts formed or performed with the use of such records or
signatures conform to the requirements of Section 102 of the
Electronic Signatures in Global and National Commerce Act, Pub.
L. No. 106-229, 114 Stat. 464 (2000), and supersede, modify, and
limit the Electronic Signatures in Global and National Commerce
Act. + }
SECTION 109. { + The unit and section captions used in this
2001 Act are provided only for the convenience of the reader and
do not become part of the statutory law of this state or express
any legislative intent in the enactment of this 2001 Act. + }
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