Read 1st time February 23, 2000, and 1000 copies ordered printed.
ANNE C. WALKER, Chief Clerk
AN ACT
To amend chapter 407, RSMo, relating to merchandising practices by adding thereto eight new sections relating to the computer lemon law.
Section A. Chapter 407, RSMo, is amended by adding thereto eight new sections, to be known as sections 407.1310, 407.1312, 407.1314, 407.1316, 407.1318, 407.1320, 407.1322 and 407.1324, to read as follows:
407.1310. Sections 407.1310 to 407.1324 shall be known and may be cited as the "Computer Lemon Law".
407.1312. For purposes of sections 407.1310 to 407.1324, the following terms shall mean, unless the context clearly indicates otherwise:
(1) "Brand new computer", a computer device which is recently assembled, unused and contains no reconditioned parts;
(2) "Computer device", a central processing unit or terminal display screen, including all circuitry and connective devices, a printer, modem, scanner or other device used with a computer or any programming for a computer, whether preinstalled or purchased separately;
(3) "Date of sale or lease", the date when a computer device is first delivered to a purchaser;
(4) "Manufacturer", a person or for-profit entity engaged in the business of manufacturing or assembling computers or computer software or accessories;
(5) "Nonconformity", a defect, condition or malfunction which impairs the use of a computer device or causes it to operate in a manner not intended;
(6) "Notice", the means by which a purchaser advises a manufacturer of a nonconformity, whether transmitted by any of the following: certified mail, registered mail, return receipt requested, facsimile transmission, electronic, e-mail or any means provided for in the manufacturer's warranty or service materials;
(7) "Purchaser", a person who is a resident or temporary resident of this state or business entity that has fewer than thirty personal computers acting either in concert with a network or as stand-alone machines and who obtains a computer device by lease, retail sale, Internet sale, gift, special contract or other transaction, whether delivered or currently located in this state.
407.1314. 1. A purchaser shall be provided at the time of sale or lease with an accurate statement of the purchaser's rights established by sections 407.1310 to 407.1324 in fourteen-point boldface type. The manufacturer shall secure from the purchaser a signed acknowledgment that the rights have been explained and are understood. Unless a signed acknowledgment of rights is secured, the time limits specified in section 407.1316 shall be tolled.
2. At the time of sale, the manufacturer of a computer device must conspicuously disclose the name of all software programs or combinations of programs, by version number, which will cause or may be likely to cause operating problems with the device. It shall be the burden of the manufacturer to prove in any claim brought pursuant to sections 407.1310 to 407.1324 that such disclosure was made.
407.1316. 1. A purchaser of a computer device shall be entitled to effective repairs by the manufacturer for any nonconformity which shall arise during the first twenty-four months of use, at no cost to the purchaser, except that if the manufacturer has issued a warranty or service contract, the coverage period shall be the greater of the term specified in the warranty or service contract or twenty-four months from the date of purchase.
2. Within five business days after receiving notice from a purchaser of a nonconformity, plus reasonable time for shipping of not more than three business days, the manufacturer shall repair any computer device and return it to the purchaser as follows:
(1) If on-site service is provided for in the warranty, repairs shall be made at the purchaser's location without charge; or
(2) If on-site service is not specified in the warranty, the manufacturer shall arrange and pay for the cost of shipping from the purchaser's location.
3. A purchaser who at the manufacturer's direction conducts diagnostic, troubleshooting or attempted repairs in compliance with subsection 2 of this section, including, but not limited to, partial disassembly, shall for the purposes of sections 407.1310 to 407.1324 be considered the same as if the repairs were attempted by the manufacturer itself.
4. All repairs conducted pursuant to subsection 2 of this section shall be guaranteed by the manufacturer for a term of two years.
5. If the repair is ineffective, the manufacturer shall, upon notice from the consumer, have a second opportunity to make an effective repair at the purchaser's physical location, provided that the repair is completed within three business days. The purchaser shall not be required to ship the unit back to the manufacturer for the final repair opportunity regardless of the manufacturer's willingness to pay for the cost of same.
6. If the second repair is ineffective or if the manufacturer fails to timely respond to the purchaser as required pursuant to this section, the purchaser may elect:
(1) A refund of the full purchase price paid at the time of sale or the full value of the lease, as the case may be, plus finance and collateral charges; or
(2) Delivery of a brand new computer device from the manufacturer, of equal or greater value than the original price paid at the time of acquisition, without charge or offset for use.
7. If more than one nonconformity has been subject to repair, no second repair attempt shall be required before seeking the remedies provided in sections 407.1310 to 407.1324.
8. A manufacturer may, at its discretion, request return of the unrepaired computer device at cost, if the manufacturer has replaced the unit or refunded the purchase price.
9. No computer device returned pursuant to this section may be resold in this state. A violation of this subsection shall be considered a violation of sections 407.010 to 407.130.
10. Notwithstanding subsections 8 and 9 of this section, a manufacturer who refuses to honor the terms of any warranty booklet or materials delivered to the purchaser at, prior to or after the delivery of the computer device shall be in violation of sections 407.010 to 407.130.
407.1318. A manufacturer shall retain records of all contacts, communications, notice transmissions or customer service dialogues between itself and a purchaser and shall maintain a list, by serial number, of all refunds or replacements made pursuant to sections 407.1310 to 407.1324. Copies shall be made available to the purchaser upon demand, regardless of whether the manufacturer utilizes the services of a third party to manage purchaser claims. A violation of this section shall be considered a violation of sections 407.010 to 407.130.
407.1320. 1. If the manufacturer of a computer device violates any provision of sections 407.1310 to 407.1324, the purchaser may initiate an action to recover as damages any and all remedies specified in section 407.1316.
2. In addition to refund or replacement of the computer device pursuant to section 407.1316, a prevailing purchaser shall be entitled to additional exemplary damages of more than one thousand five hundred and less than six thousand dollars, and punitive damages, if necessary.
3. If a purchaser initiates an action in this state for a violation of sections 407.1310 to 407.1324, the manufacturer shall produce at each and every court proceeding in such action a corporate representative who shall be fully aware of the facts and circumstances of the case and have available for the court's review a copy of all data generated pursuant to the provisions of this section.
4. If a purchaser prevails in a claim pursuant to sections 407.1310 to 407.1324, the manufacturer shall pay the purchaser's reasonable attorney fees, costs and expert expenses in resolving and, if necessary, litigating an action pursuant to section 407.1320, regardless of the cost of the computer device.
5. It shall not be a defense pursuant to sections 407.1310 to 407.1324 that a nonconformity was caused by a software programming problem:
(1) If the software was preinstalled by the manufacturer;
(2) Unless the manufacturer produces an expert witness at the proceedings who examined the computer device and can specify the exact cause and correction of the problem;
(3) Unless the manufacturer has strictly complied with the notice provisions of subsection 2 of section 407.1314.
6. A purchaser who seeks relief pursuant to sections 407.1310 to 407.1324 shall not be required to retain the opinion of an expert to prevail against a manufacturer under any circumstances.
407.1322. 1. Nothing in sections 407.1310 to 407.1324 shall limit the purchaser from pursuing any other rights or remedies pursuant to any other law, contract or warranty.
2. The provisions of sections 407.1310 to 407.1324 may not be waived by a purchaser.
407.1324. Sections 407.1310 to 407.1324 shall apply to all computer devices purchased, leased or delivered to a
purchaser after August 28, 2000.
Missouri House of Representatives