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SECOND REGULAR SESSION
HOUSE BILL NO. 2871
103RD GENERAL ASSEMBL Y
INTRODUCED BY REPRESENT A TIVE WEBER.
4358H.01I JOSEPH ENGLER, Chief Clerk
AN ACT
T o amend chapter 407, RSMo, by adding thereto two new sections relating to product repair
requirements, with a penalty provision.
Be it enacted by the General Assembly of the state of Missouri, as follows:
Section A. Chapter 407, RSMo, is amended by adding thereto two new sections, to be
2 known as sections 407.652 and 407.653, to read as follows:
407.652. As used in sections 407.652 and 407.653, the following terms mean:
2 (1) "Authorized re pair pr ovider", an individual or business that has an oral or
3 written arrangement for a definite or indefinite period in which a manufactur er or
4 distributor transfers to a separate business organization or individual license to use a
5 trade name, service mark, or r elative characteristic for the purposes of offering rep air
6 services under the name of the manufactur er;
7 (2) "Documentation", manuals, diagrams, r eporting output, schematic
8 diagrams, or service code descriptions pr ovided to the authorized rep air pr ovider for
9 the purposes of repa ir or ref urbishment;
10 (3) "Embedded software", pr ogrammable instructions pr ovided on firmwar e
11 deliver ed with certain pr oducts for the purposes of pr oduct operation, including all
12 r elevant safety , security , and defect patches and fixes made by the manufactur er for this
13 purpose. "Embedded softwar e" shall include all software that satisfies this definition
14 r egardless if called a differ ent name including, but not limited to, assembly code, basic
15 internal operating system, internal operating system, machine code, micr ocode, or root
16 code;
EXPLANA TION — Matter enclosed in bold-faced brackets [thus] in the above bill is not enacted and is
intended to be omitted from the law . Matter in bold-face type in the above bill is proposed language.
17 (4) "Fair and reas onable terms", an equitable price in light of relev ant factors
18 including, but not limited to:
19 (a) The net cost to the authorized repa ir provi der for similar parts obtained
20 fr om manufactur ers less any discounts, rebates , or other incentive prog rams;
21 (b) The cost to the manufactur er for pr eparing and distributing the parts or
22 pr oduct, excluding any r esear ch and development costs incurr ed in designing and
23 implementing, upgrading, or altering the prod uct, but including amortized capital costs
24 for the pr eparation and distribution of the parts; and
25 (c) The price charged by other manufactur ers for similar parts or pr oducts;
26 (5) "Independent repai r pro vider", an individual or business operating in the
27 state that is not affiliated with a manufactur er or a manufactur er's authorized dealer of
28 a prod uct and that is engaged in the diagnosis, service, maintenance, or repa ir of a
29 pr oduct. A manufactur er's authorized dealer shall be consider ed an independent rep air
30 pr ovider if the dealer engages in the diagnosis, service, maintenance, or rep air of a
31 pr oduct that is not affiliated with the manufactur er;
32 (6) "Manufactur er", an individual or business that, in the ordinary course of its
33 business, is engaged in selling or leasing new pr oducts to consumers or other end users
34 and is engaged in the diagnosis, service, maintenance, or repa ir of those prod ucts;
35 (7) "Owner", an individual or business that lawfully acquires a pr oduct
36 pur chased or used in the state;
37 (8) "Prod uct", any pr oduct regard less of the date purch ased. "Prod uct" shall
38 exclude motor vehicles;
39 (9) "Remote diagnostics", a rem ote data-transfer function between certain
40 pr oducts and a pr ovider of repai r services, including for purposes of rem ote diagnostics,
41 settings control s, or location identification;
42 (10) "Service parts", repla cement parts, either new or used, made available by
43 the manufactur er to the authorized repair pr ovider for the purposes of r epair;
44 (1 1) "T rade secr et", anything tangible or intangible or electr onically stor ed or
45 kept that constitutes, r epresent s, evidences, or record s intellectual pro perty including,
46 but not limited to:
47 (a) Secr et or confidentially held designs, process es, proced ures, formulas,
48 inventions, or impr ovements;
49 (b) Secr et or confidentially held scientific, technical, mer chandising, pr oduction,
50 financial, business, or management information; or
51 (c) Any trade secr et as that term is defined under paragraph (3) of 18 U.S.C.
52 Section 1839.
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407.653. 1. Owners of pr oducts pur chased or used in this state shall have the
2 right to:
3 (1) Access the same diagnostic and repai r information of pro ducts manufactur ed
4 by the manufactur er as the manufactur er makes available to independent rep air
5 pr oviders or authorized rep air provi ders. Such information shall be pr ovided in the
6 same manner and time as provi ded to authorized rep air provi ders. Such information
7 shall include, but not be limited to, re pair technical updates, diagnostic software, service
8 access passwords, updates and corr ections to firmwar e, and r elated documentation; and
9 (2) Purch ase service parts available upon fair and r easonable terms. Such
10 service parts shall be made available in the same manner and time as given to
11 authorized rep air pr oviders. Such service parts shall include updates to firmwar e or
12 parts.
13
14 Nothing in this section shall r equir e the manufactur er to sell service parts if the service
15 parts are no longer available to the manufactur er or the authorized r epair channel of
16 the manufactur er .
17 2. An authorized repa ir pro vider shall have the right to pur chase diagnostic,
18 service, or repai r information in a format standardized with other manufactur ers
19 instead of a prop rietary format fr om a manufactur er if the manufactur er sells
20 diagnostic, service, or r epair information to independent rep air pr oviders or third-party
21 pr oviders in such a standardized format or if the manufactur er offers terms and
22 conditions mor e favorable to independent r epair pro viders or third-party pro viders
23 than the manner and the terms and conditions that are available to an authorized rep air
24 pr ovider . However , this subsection shall not apply if the pr oprietary format includes
25 diagnostic, service, repair , or dealership operations information or functionality not
26 available in a standardized format.
27 3. Owners and independent repai r pr oviders shall have the right to pur chase
28 fr om manufactur ers of prod ucts sold or used in this state all diagnostic repai r tools,
29 incorporating the same diagnostic rep air and rem ote diagnostic capabilities that the
30 manufactur er makes available to its own rep air or engineering staff or any authorized
31 r epair pr oviders, upon fair and reas onable terms.
32 4. Manufactur ers that pr ovide rep air information to aftermarket tools,
33 diagnostics, or third-party service information publications and systems have fully
34 satisfied their obligations under this section and ther eafter ar e not res ponsible for the
35 content and functionality of aftermarket diagnostic tools or service information systems.
36 5. Manufactur ers of pr oducts sold or used in the state for the purposes of
37 pr oviding security-r elated functions shall not exclude diagnostic, service, or rep air
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38 information necessary to r eset a security-r elated electr onic function fr om information
39 pr ovided to owners and independent re pair pr oviders. If necessary for security
40 purposes, manufactur ers may prov ide information necessary to res et and unlock system
41 or security-r elated electr onic modules to owners and independent rep air pro viders
42 thr ough an appr opriate secure data rel ease system.
43 6. Nothing in this section shall requi re the manufactur er to divulge a trade
44 secr et.
45 7. Notwithstanding any law or rule to the contrary , this section shall not be rea d,
46 interpr eted, or construed to abrog ate, interfer e with, contradict, or alter the terms of an
47 agr eement executed between an authorized rep air provi der and a manufactur er
48 including, but not limited to, performing warranty or recal l rep air work by an
49 authorized repai r pro vider on behalf of a manufactur er pursuant to the authorized
50 r epair agreement. Except in the case of a dispute arising between a manufactur er and
51 its authorized repa ir prov ider rel ated to either party's compliance with an existing
52 r epair agr eement, an authorized repa ir pr ovider has all the rights and rem edies
53 pr ovided in this section.
54 8. This section shall not r equir e manufactur ers or authorized rep air prov iders to
55 pr ovide an owner or independent repa ir provi der access to nondiagnostic and nonr epair
56 information provi ded by a manufactur er to an authorized repai r provi der pursuant to
57 the terms of an authorizing agr eement.
58 9. (1) An independent r epair pr ovider or owner who believes that a
59 manufactur er has failed to pr ovide information, including documentation, updates to
60 firmwar e, safety and security correct ions, diagnostics, documentation, or a tool r equir ed
61 by this section, shall notify the manufactur er in writing and give the manufactur er
62 thirty days fr om the time the manufactur er recei ves the complaint to cur e the failure. If
63 the manufactur er cures the complaint within thirty days, damages are limited to actual
64 damages in any subsequent litigation.
65 (2) If the manufactur er fails to r espond to the notice pr ovided in subdivision (1)
66 of this subsection or if an independent repair provi der or owner is not satisfied with the
67 manufactur er's cur e, the independent repa ir pr ovider or owner may file a complaint in
68 cir cuit court. The complaint shall include:
69 (a) Written information confirming that the complainant attempted to acquire
70 and use, thr ough the then available standard support function provi ded by the
71 manufactur er , all re levant diagnostics, tools, service parts, documentation, and updates
72 to embedded softwar e, including communication with customer assistance via the
73 manufactur er's then standard pr ocess, if made available by the manufactur er; and
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74 (b) Evidence of manufactur er notification as requ ired in subdivision (1) of this
75 subsection.
76 10. No manufactur er shall be requ ired to prov ide any information or service
77 parts under subsection 1 of this section if the pr oduct for which the information or
78 service parts ar e sought is under a valid warranty for rep air or rep lacement of the
79 pr oduct.
80 1 1. The attorney general shall enforce this section. Each violation of this section
81 shall be punishable by a five-hundr ed-dollar fine, which shall be deposited into the
82 school fund of the county in which the complaint ar ose.
83 12. This section shall not apply to manufactur ers or distributors of a medical
84 device as defined in the Federal Food, Drug, and Cosmetic Act, or a digital electr onic
85 pr oduct or softwar e manufactur ed for use in a medical setting, including diagnostic,
86 monitoring, or control equipment or any prod uct or service that the manufactur er or
87 distributor of a medical device offers.
88 13. This section shall not apply to a manufactur er , dealer , distributor , integrator ,
89 installer , or monitoring service pr ovider of a central station security device or alarm
90 system including, but not limited to, all central station alarm systems used to pr event,
91 detect, pro tect against, or r espond to fir e, carbon monoxide risks, falls, medical alerts,
92 or security incidents, or control access to res idential, commer cial, and governmental
93 pr operty , services, or information systems.
✔
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