Creates provisions relating to product repair requirements

SECOND REGULAR SESSION
HOUSE BILL NO. 3384
103RD GENERAL ASSEMBL Y
INTRODUCED BY REPRESENT A TIVE OVERCAST .
7345H.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 penalty provisions.
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 this section and section 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 licensee the right
5 to use a trade name, service mark, or other pro prietary identifier for the purposes of
6 offering diagnosis, maintenance, or r epair services under the name of the manufactur er .
7 A manufactur er that offers diagnosis, maintenance, or repa ir services for its pr oduct
8 and that does not have an arrangement with an individual or business described in this
9 subdivision shall be consider ed an authorized rep air provi der;
10 (2) "Documentation", manuals, diagrams, r eporting output, schematic
1 1 diagrams, service code descriptions, or other information pr ovided to the authorized
12 r epair pr ovider for the purposes of diagnosis, maintenance, repa ir , or ref urbishment;
13 (3) "Embedded software", pr ogrammable instructions pr ovided on firmwar e
14 deliver ed with certain pr oducts or parts for the purposes of prod uct operation,
15 including all relev ant safety , security , and defect patches and fixes made by the
16 manufactur er for this purpose. "Embedded software" shall include all softwar e that
17 meets this definition, rega rdless of name including, but not limited to, assembly 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.
18 basic internal operating system, internal operating system, machine code, micr ocode, or
19 r oot code;
20 (4) "Fair and reas onable terms", an equitable price in light of relev ant factors
21 including, but not limited to:
22 (a) The net cost to an authorized r epair pr ovider for similar parts,
2 3 documentation, or tools obtained fr om manufactur ers less any discounts, reb ates, or
24 other incentive pr ograms;
25 (b) The cost to the manufactur er for pr eparing and distributing the parts or
26 pr oduct, excluding any r esear ch and development costs incurr ed in designing and
27 implementing, upgrading, or altering the prod uct, but including amortized capital costs
28 for the pr eparation and distribution of the parts; and
29 (c) The price charged by other manufactur ers for similar parts or pr oducts.
30
31 For documentation including, but not limited to, softwar e updates, "fair and reas onable
32 terms" shall mean at no charge, except if documentation is requ ested in printed form,
33 the manufactur er may charge for re asonable costs of pr eparing and sending the
34 documentation. For softwar e tools, "fair and re asonable terms" shall mean at no
35 charge and without req uiring authorization, without req uiring internet access, and
36 without impeding access or use of the pr oduct;
37 (5) "Farm machinery", any mobile equipment or machinery including, but not
38 limited to, tractors, trailers, combines, tillage implements, balers, unmanned air craft
39 systems, off-r oad vehicles, and other equipment, including attachments and r epair parts
40 ther eof, used in the planting, cultivating, irrigating, harvesting, or ranching of
41 agricultural pr oducts, excluding self-pro pelled machines designed primarily for the
42 transportation of persons or pr operty on a stre et or highway;
43 (6) "Independent repai r pro vider", an individual or business operating in the
44 state that is not affiliated with a manufactur er or a manufactur er's authorized dealer of
45 a pro duct but is engaged in the diagnosis, service, maintenance, or r epair of pro ducts. A
46 manufactur er's authorized dealer shall be consider ed an independent repair pr ovider if
47 the dealer engages in the diagnosis, service, maintenance, or r epair of a pr oduct that is
48 not affiliated with the manufactur er;
49 (7) "Manufactur er", an individual or business that, in the ordinary course of its
50 business, is engaged in selling or leasing new pr oducts to consumers or other end users
51 and is engaged in the diagnosis, service, maintenance, or repa ir of those prod ucts;
52 (8) "Owner", an individual or business that lawfully acquires a pr oduct
53 pur chased or used in the state;
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54 (9) "Prod uct", any farm machinery r egardless of the date pur chased, whose
55 functioning depends, in whole or in part, on embedded or attached digital electr onics;
56 (10) "Remote diagnostics", a rem ote data transfer function between certain
57 pr oducts and a pr ovider of repai r services, including for purposes of rem ote diagnostics,
58 settings control s, or location identification;
59 (1 1) "Service parts", rep lacement parts, either new or used, made available by
60 the manufactur er to an authorized rep air provi der for the purposes of rep air;
61 (12) "T ools", any software pr ogram, hardware implement, or other apparatus
62 used for diagnosis, maintenance, or repa ir of a prod uct including, but not limited to,
63 softwar e or other mechanisms that pr ovision, pro gram, or pair a new part, calibrate
64 functionality , or perform a function req uired to bring the pro duct back to fully
65 functional condition;
66 (13) "T rade secr et", anything tangible, intangible, or electr onically store d or
67 kept that constitutes, r epresent s, evidences, or record s intellectual pro perty including,
68 but not limited to:
69 (a) Secr et or confidentially held designs, process es, proced ures, formulas,
70 inventions, or impr ovements;
71 (b) Secr et or confidentially held scientific, technical, mer chandising, pr oduction,
72 financial, business, or management information; or
73 (c) Any trade secr et as that term is defined under paragraph (3) of 18 U.S.C.
74 Section 1839.
407.653. 1. Owners of pr oducts pur chased or used in this state and independent
2 r epair pr oviders shall have the 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 authorized rep air
5 pr oviders. Such information shall be pr ovided in the same manner and at the same time
6 as provi ded to authorized repair prov iders. Such information shall include, but not be
7 limited to, repa ir technical updates, diagnostic softwar e, service access passwords,
8 updates and corr ections to firmwar e, and rel ated documentation;
9 (2) Purch ase service parts, documentation, and tools available upon fair and
10 r easonable terms. Such service parts shall be made available in the same manner and at
11 the same time as given to authorized rep air pro viders. Such service parts shall include
12 updates to firmwar e of parts; and
13 (3) Upon the pur chase or acquisition of a pr oduct, receive a disclosur e of any
14 changes or modifications made to the pro duct by pr evious owners.
15
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16 Nothing in this section shall r equir e the manufactur er to sell service parts if the service
17 parts are no longer available to the manufactur er or the authorized r epair channel of
18 the manufactur er .
19 2. An authorized repa ir pro vider shall have the right to pur chase diagnostic,
20 service, or rep air information of a pr oduct in a format standardized with other
21 manufactur ers instead of a propriet ary format from a manufactur er if the
2 2 manufactur er sells diagnostic, service, or r epair information to independent rep air
23 pr oviders or third-party pr oviders in such a standardized format or if the manufactur er
24 offers terms and conditions mor e favorable to independent repa ir pr oviders or third-
25 party provi ders than the manner and the terms and conditions that ar e available to an
26 authorized r epair pr ovider . However , this subsection shall not apply if the pro prietary
27 format includes diagnostic, service, repa ir , or dealership operations information or
28 functionality not available in a standardized format.
29 3. Owners and independent repai r pr oviders shall have the right to pur chase
30 fr om manufactur ers of prod ucts sold or used in this state all diagnostic repai r tools,
31 incorporating the same diagnostic rep air and rem ote diagnostic capabilities that the
32 manufactur er makes available to its own rep air or engineering staff or any authorized
33 r epair pr oviders, on fair and rea sonable terms.
34 4. For equipment that contains an electr onic security lock or other security-
35 r elated function, the manufactur er shall make available to owners and independent
36 r epair pro viders, on fair and reas onable terms, any special documentation, tools, and
37 parts needed to disable the lock or function and to res et it when disabled in the course of
38 diagnosis, maintenance, or repai r of the equipment. The documentation, tools, and
39 parts may be made available thr ough an appr opriate secure system.
40 5. Manufactur ers that pr ovide rep air information to aftermarket tools,
41 diagnostics, or third-party service information publications and systems have fully
42 satisfied their obligations under this section and ther eafter , ar e not res ponsible for the
43 content and functionality of aftermarket diagnostic tools or service information systems.
44 6. If a manufactur er has made an expr ess warranty with res pect to a pr oduct
45 and the wholesale price of the equipment is one hundred dollars or mor e, the
46 manufactur er shall pr ovide the parts, tools, and documentation needed to r epair the
47 pr oduct during the warranty period at an equitable price, with convenient delivery , and
48 with an enabled functionality , considering:
49 (1) The actual cost to the manufactur er to pre pare and distribute the part, tool,
50 or documentation, exclusive of any res earch and development costs incurr ed;
51 (2) The ability of owners or independent rep air pr oviders to afford the part, tool,
52 or documentation; and
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53 (3) The means by which the part, tool, or documentation is distributed.
54 7. Manufactur ers of pr oducts sold or used in the state for the purposes of
55 pr oviding security-r elated functions shall not exclude diagnostic, service, or rep air
56 information necessary to r eset a security-r elated electr onic function fr om information
57 pr ovided to owners and independent re pair pr oviders. If necessary for security
58 purposes, manufactur ers shall pro vide information necessary to r eset and unlock system
59 or security-r elated electr onic modules to owners and independent rep air pro viders
60 thr ough an appr opriate secure data rel ease system.
61 8. Nothing in this section shall r equir e the manufactur er to divulge a trade secr et
62 to an owner or to an independent repa ir pr ovider , except as necessary to prov ide
63 documentation, parts, and tools on fair and reas onable terms.
64 9. Notwithstanding any law or rule to the contrary , this section shall not be rea d,
65 interpr eted, or construed to abrog ate, interfer e with, contradict, or alter the terms of an
66 agr eement executed between an authorized rep air provi der and a manufactur er
67 including, but not limited to, performing warranty or recal l rep air work by an
68 authorized repai r pro vider on behalf of a manufactur er pursuant to the authorized
69 r epair agreement. Except in the case of a dispute arising between a manufactur er and
70 its authorized repa ir prov ider rel ated to either party's compliance with an existing
71 r epair agr eement, an authorized repai r pr ovider shall have all the rights and rem edies
72 pr ovided in this section.
73 10. This section shall not req uire manufactur ers or authorized r epair pro viders
74 to pro vide an owner or independent repa ir pr ovider access to nondiagnostic and
75 nonr epair information provi ded by a manufactur er to an authorized rep air provi der
76 under the agr eement between the manufactur er and the authorized repa ir pr ovider .
77 1 1. (1) An independent re pair pr ovider or owner who believes that a
78 manufactur er has failed to pr ovide information including, but not limited to,
79 documentation, updates to firmwar e, safety and security correct ions, diagnostics,
80 documentation, or a tool req uired by this section shall notify the manufactur er in
81 writing and give the manufactur er thirty days fr om the date the manufactur er r eceives
82 the complaint to cur e the failur e. If the manufactur er cur es the complaint within thirty
83 days, damages are limited to actual damages in any subsequent litigation.
84 (2) If the manufactur er fails to r espond in a timely manner to the notice
85 described under subdivision (1) of this subsection or if an independent r epair provi der
86 or an owner is not satisfied with the manufactur er's cure, the independent rep air
87 pr ovider or the owner may file a complaint in district court. The complaint shall
88 include:
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89 (a) Written information confirming that the complainant attempted to acquire
90 and use, thr ough the then-available standard support function prov ided by the
91 manufactur er , all re levant diagnostics, tools, service parts, documentation, and updates
92 to embedded softwar e, including communication with customer assistance via the
93 manufactur er's then-standard process , if made available by the manufactur er; and
94 (b) Evidence of manufactur er notification as requ ired in subdivision (1) of this
95 subsection.
96 12. No manufactur er shall be requ ired to prov ide any information or service
97 parts under subsection 1 of this section if the pr oduct for which the information or
98 service parts ar e sought is under a valid warranty for rep air or rep lacement of the
99 pr oduct.
100 13. The attorney general shall enforce this section. Each violation of this section
101 shall be punishable by a ten-thousand-dollar fine, which shall be distributed to schools
102 under Article IX, Section 7 of the Constitution of Missouri.
✔
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