Chapter 810 Oregon Laws 1999

Session Law

AN ACT

HB 3245

Relating to civil actions arising out of computer date failures; and declaring an emergency.

Be It Enacted by the People of the State of Oregon:

SECTION 1. Definitions. As used in sections 1 to 9 of this 1999 Act:

(1) "Computer" means an electronic, magnetic, optical electrochemical or other high-speed data processing device that performs logical, arithmetic or memory functions by the manipulations of electronic or magnetic impulses and includes all input, output, processing, storage or communication facilities that are connected or related to the device. "Computer" includes a component of a computer, such as a microprocessor, memory chip, storage device or input or output device.

(2) "Computer date failure" means:

(a) The inability of a computer product or computer service to properly handle or process dates of calendar year 1999 or subsequent years; or

(b) An incompatibility between:

(A) A computer product or computer service; and

(B) Any other product, service or electronic data in any form, with respect to the handling or processing of dates of calendar year 1999 or subsequent years.

(3) "Computer network" means the interconnection of two or more computers or computer systems by satellite, microwave, line or other communication medium with the capability to transmit information among the computers.

(4) "Computer product" includes a computer, computer network, computer program, computer software, computer system or any component of any of those items.

(5) "Computer program" means an ordered set of data representing coded instructions or statements that when executed by a computer causes the computer to process data or perform specific functions.

(6) "Computer service" means the product of the use of a computer, the information stored in the computer or the personnel supporting the computer, including time, data processing and storage functions.

(7) "Computer software" means a set of computer programs, procedures and associated documentation related to the operation of a computer, computer system or computer network.

(8) "Computer system" means any combination of a computer or computer network with the documentation, computer software or physical facilities supporting the computer or computer network.

SECTION 2. Action for Computer Date Failure. (1) A person may not bring an action for damages caused by a computer date failure unless the complaint in the action alleges with specificity a material defect in a computer product that caused the computer date failure and that caused the damages that are alleged to have resulted from the computer date failure.

(2) Notwithstanding any other provision of law, an action for damages caused by a computer date failure may not be brought by any person later than two years from the date that the person discovered, or in the exercise of reasonable diligence should have discovered, that the computer product or computer service had experienced a computer date failure.

(3) Except as provided in subsection (4) of this section, a person must bring an action against a manufacturer or seller of a computer product or computer service for damages caused by a computer date failure no later than eight years after the product or the service was first purchased for use or consumption in this state. This subsection does not apply to a manufacturer or seller that expressly warranted that the product would not experience a computer date failure.

(4) If a manufacturer or seller of an item that contains a computer product expressly warranted to a person that the item had a useful safe life longer than eight years, the person must bring an action against the manufacturer or seller for damages caused by a computer date failure before the end of the time period warranted by the manufacturer or seller as the useful safe life of the item.

SECTION 3. Opportunity to Cure. (1) Before a claimant may commence an action against a person for damages caused by a computer date failure, the claimant must notify the person of the failure, describe the failure and provide the person a reasonable opportunity to cure the failure or to make restitution.

(2) A person given notice under this section must be provided with at least three months to cure the failure or to make restitution.

(3) If a claimant commences an action against a defendant for harm caused by a computer date failure without providing the defendant an opportunity to cure the failure or to make restitution, the court shall dismiss the action.

SECTION 4. Affirmative Defense; Notice and Repair. (1) It is an affirmative defense to civil liability for damages caused by a computer date failure that:

(a) The defendant notified buyers of the computer product or computer service that the product or service may experience a computer date failure;

(b) The defendant offered to repair, replace or upgrade the product or service, or the component that would experience the computer date failure, at no cost to the buyer other than reasonable and customary charges for shipping, handling and installing the items needed to repair, replace or upgrade the product, service or component; and

(c) The tendered repair, replacement or upgrade would have avoided the harm caused by the computer date failure.

(2) The notice issued under subsection (1) of this section must:

(a) Identify the product, service or component supplied by the defendant that could experience a computer date failure; and

(b) Explain how the buyer may repair, replace or upgrade the product, service or component if repair, replacement or upgrade is available.

(3) Notice under subsection (1) of this section must be sent or published at least three months before the date of the computer date failure and not more than three years before that date.

(4) A defendant meets the requirement of notice under subsection (1) of this section if the defendant:

(a) Timely delivers the notice to the claimant;

(b) Timely sends the notice to all registered buyers by mail, courier, electronic mail or fax to the last known address or fax number provided by the buyer; or

(c) Timely publishes the notice on the defendant's Internet site, if the defendant has a site.

SECTION 5. Affirmative Defense; Reliance. (1) In an action for fraud, misrepresentation, breach of warranty or other similar action based on the alleged falsity or misleading character of a statement relating to the susceptibility of a computer product, computer service or component to computer date failure, it is an affirmative defense to liability for harm caused by a computer date failure that the defendant:

(a) Relied on the representation or express warranty of a vendor or supplier of the computer product or computer service who is independent of the defendant that the product, service or component would not experience a computer date failure; and

(b) The defendant did not have actual knowledge that the representation or warranty was not true.

(2) For the purposes of subsection (1)(a) of this section, a representation by a vendor or supplier of the computer product, computer service or component that a product, service or component is "Year 2000 Compliant" or "Millennium Bug Free" or complies with a computer date standard established by a state or federal regulatory agency or a national or international service organization, or any similar representation, satisfies the condition of a representation or express warranty.

SECTION 6. Affirmative Defense; Compliance Testing. (1) It is an affirmative defense to civil liability for harm caused by a computer date failure of a computer product or computer service that:

(a) The defendant examined the product or service to determine if it would experience a computer date failure;

(b) The defendant repaired, replaced or upgraded the product or service, or a component of the product or service, identified in the examination as subject to computer date failure;

(c) The defendant tested the product or service, or the component of the product or service, after it was repaired to determine if it would experience a computer date failure; and

(d) The product or service successfully passed the test.

(2) A defendant may satisfy all or part of the requirements of this section through an independent contractor.

NOTE: Section 7 was deleted by amendment. Subsequent sections were not renumbered.

SECTION 8. Punitive Damages. In an action to recover damages for harm caused by a computer date failure, a court may award punitive damages against a defendant only if the claimant proves by clear and convincing evidence that the defendant acted fraudulently or with malice.

SECTION 9. Applicability. (1) Except as provided in this section, sections 1 to 9 of this 1999 Act apply to any action in which a claimant seeks recovery of damages for harm caused by a computer date failure, regardless of the legal theory or statute on which the action is based, including an action based in tort, contract or breach of an express or implied warranty. Sections 1 to 9 of this 1999 Act also apply to any action based on an alleged failure to properly detect, disclose, prevent, report or remedy a computer date failure.

(2) Sections 1 to 9 of this 1999 Act do not apply to any action to collect workers' compensation benefits under the workers' compensation laws of this state.

(3) Sections 1 to 9 of this 1999 Act do not create any duty or any cause of action.

(4) Sections 1 to 9 of this 1999 Act shall not be construed to limit or restrict the right of parties to enter into written agreements on the issues of liability and damages for a computer date failure. Sections 1 to 9 of this 1999 Act do not limit the right of parties to recover damages in accordance with the terms of written agreements.

(5) Sections 1 to 9 of this 1999 Act do not affect the rights or obligations of parties under a contract of insurance.

SECTION 10. (1) Except as provided in subsection (2) of this section, sections 1 to 9 of this 1999 Act apply only to civil actions commenced on or after the effective date of this 1999 Act.

(2) Sections 1 to 9 of this 1999 Act apply to an action commenced before the effective date of this 1999 Act if:

(a) Trial of the matter has not commenced before the effective date of this 1999 Act; or

(b) A new trial or retrial following motion, appeal or otherwise has been ordered and the new trial or retrial commences on or after the effective date of this 1999 Act.

SECTION 11. The section captions used in this 1999 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 1999 Act.

SECTION 12. This 1999 Act being necessary for the immediate preservation of the public peace, health and safety, an emergency is declared to exist, and this 1999 Act takes effect on its passage.

Approved by the Governor July 20, 1999

Filed in the office of Secretary of State July 20, 1999

Effective date July 20, 1999

__________