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SECOND REGULAR SESSION
SENATE BILL NO. 1564
103RD GENERAL ASSEMBLY
INTRODUCED BY SENATOR MCCREERY .
4318S.01I KRISTINA MARTIN, Secretary
AN ACT
To 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 1
two new sections, to be known as sections 407.652 and 407.653, 2
to read as follows:3
407.652. As used in this section and section 407.653, 1
the following terms mean: 2
(1) "Authorized repair provider", an individual or 3
business that has an oral or written arrangement for a 4
definite or indefinite period in which a manufacturer or 5
distributor transfers to a separate business organization or 6
individual license to use a trade name, service mark, or 7
relative characteristic for the purposes of offering repair 8
services under the name of the manufacturer; 9
(2) "Documentation", manuals, diagrams, reporting 10
output, schematic diagrams, or service code descriptions 11
provided to the authorized repair provider for the purposes 12
of repair or refurbishment; 13
(3) "Embedded software", programmable instructions 14
provided on firmware delivered with certain products for the 15
purposes of product operation, including all relevant 16
safety, security, and defect patches and fixes made by the 17
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manufacturer for this purpose. "Embedded software" shall 18
include all software that satisfies this definition 19
regardless if called a different name including, but not 20
limited to, assembly code, basic internal operating system, 21
internal operating system, machine code, microcode, or root 22
code; 23
(4) "Fair and reasonable terms", an equitable price in 24
light of relevant factors including, but not limited to: 25
(a) The net cost to the authorized repair provider for 26
similar parts obtained from manufacturers less any 27
discounts, rebates, or other incentive programs; 28
(b) The cost to the manufacturer for preparing and 29
distributing the parts or product, excluding any research 30
and development costs incurred in designing and 31
implementing, upgrading, or altering the product, but 32
including amortized capital costs for the preparation and 33
distribution of the parts; and 34
(c) The price charged by other manufacturers for 35
similar parts or products; 36
(5) "Independent repair provider", an individual or 37
business operating in the state that is not affiliated with 38
a manufacturer or a manufacturer's authorized repair dealer 39
of a product and that is engaged in the diagnosis, service, 40
maintenance, or repair of a product. A manufacturer's 41
authorized repair dealer shall be considered an independent 42
repair provider if the repair dealer engages in the 43
diagnosis, service, maintenance, or repair of a product that 44
is not affiliated with the manufacturer; 45
(6) "Manufacturer", an individual or business that, in 46
the ordinary course of its business, is engaged in selling 47
or leasing new products to consumers or other end users and 48
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is engaged in the diagnosis, service, maintenance, or repair 49
of those products; 50
(7) "Owner", an individual or business that lawfully 51
acquires a product purchased or used in the state; 52
(8) "Product", any product regardless of the date 53
purchased. "Product" shall exclude motor vehicles; 54
(9) "Remote diagnostics", a remote data-transfer 55
function between certain products and a provider of repair 56
services, including for purposes of remote diagnostics, 57
settings controls, or location identification; 58
(10) "Service parts", replacement parts, either new or 59
used, made available by the manufacturer to the authorized 60
repair provider for the purposes of repair; 61
(11) "Trade secret", anything tangible or intangible 62
or electronically stored or kept that constitutes, 63
represents, evidences, or records intellectual property 64
including, but not limited to: 65
(a) Secret or confidentially held designs, processes, 66
procedures, formulas, inventions, or improvements; 67
(b) Secret or confidentially held scientific, 68
technical, merchandising, production, financial, business, 69
or management information; or 70
(c) Any trade secret as that term is defined under 71
paragraph (3) of 18 U.S.C. Section 1839. 72
407.653. 1. Owners of products purchased or used in 1
this state shall have the right to: 2
(1) Access the same diagnostic and repair information 3
of products manufactured by the manufacturer as the 4
manufacturer makes available to independent repair providers 5
or authorized repair providers. Such information shall be 6
provided in the same manner and time as provided to 7
authorized repair providers. Such information shall 8
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include, but not be limited to, repair technical updates, 9
diagnostic software, service access passwords, updates and 10
corrections to firmware, and related documentation; and 11
(2) Purchase service parts available upon fair and 12
reasonable terms. Such service parts shall be made 13
available in the same manner and time as given to authorized 14
repair providers. Such service parts shall include updates 15
to firmware of parts. 16
Nothing in this section shall require the manufacturer to 17
sell service parts if the service parts are no longer 18
available to the manufacturer or the authorized repair 19
channel of the manufacturer. 20
2. An authorized repair provider shall have the right 21
to purchase diagnostic, service, or repair information in a 22
format standardized with other manufacturers instead of a 23
proprietary format from a manufacturer if the manufacturer 24
sells diagnostic, service, or repair information to 25
independent repair providers or third-party providers in 26
such a standardized format or if the manufacturer offers 27
terms and conditions more favorable to independent repair 28
providers or third-party providers than the manner and the 29
terms and conditions that are available to an authorized 30
repair provider. However, this subsection shall not apply 31
if the proprietary format includes diagnostic, service, 32
repair, or dealership operations information or 33
functionality not available in a standardized format. 34
3. Owners and independent repair providers shall have 35
the right to purchase from manufacturers of products sold or 36
used in this state all diagnostic repair tools, 37
incorporating the same diagnostic repair and remote 38
diagnostic capabilities that the manufacturer makes 39
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available to its own repair or engineering staff or any 40
authorized repair providers, upon fair and reasonable terms. 41
4. Manufacturers that provide repair information to 42
aftermarket tools, diagnostics, or third-party service 43
information publications and systems have fully satisfied 44
their obligations under this section and thereafter are not 45
responsible for the content and functionality of aftermarket 46
diagnostic tools or service information systems. 47
5. Manufacturers of products sold or used in the state 48
for the purposes of providing security-related functions 49
shall not exclude diagnostic, service, or repair information 50
necessary to reset a security-related electronic function 51
from information provided to owners and independent repair 52
providers. If necessary for security purposes, 53
manufacturers may provide information necessary to reset and 54
unlock system or security-related electronic modules to 55
owners and independent repair providers through an 56
appropriate secure data release system. 57
6. Nothing in this section shall require the 58
manufacturer to divulge a trade secret. 59
7. Notwithstanding any law or rule to the contrary, 60
this section shall not be read, interpreted, or construed to 61
abrogate, interfere with, contradict, or alter the terms of 62
an agreement executed between an authorized repair provider 63
and a manufacturer including, but not limited to, performing 64
warranty or recall repair work by an authorized repair 65
provider on behalf of a manufacturer pursuant to the 66
authorized repair agreement. Except in the case of a 67
dispute arising between a manufacturer and its authorized 68
repair provider related to either party's compliance with an 69
existing repair agreement, an authorized repair provider has 70
all the rights and remedies provided in this section. 71
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8. This section shall not require manufacturers or 72
authorized repair providers to provide an owner or 73
independent repair provider access to nondiagnostic and 74
nonrepair information provided by a manufacturer to an 75
authorized repair provider pursuant to the terms of an 76
authorizing agreement. 77
9. (1) An independent repair provider or owner who 78
believes that a manufacturer has failed to provide 79
information, including documentation, updates to firmware, 80
safety and security corrections, diagnostics, documentation, 81
or a tool required by this section, shall notify the 82
manufacturer in writing and give the manufacturer thirty 83
days from the time the manufacturer receives the complaint 84
to cure the failure. If the manufacturer cures the failure 85
within thirty days, damages are limited to actual damages in 86
any subsequent litigation. 87
(2) If the manufacturer fails to respond to the notice 88
provided in subdivision (1) of this subsection or if an 89
independent repair provider or owner is not satisfied with 90
the manufacturer's cure, the independent repair provider or 91
owner may file a complaint in circuit court. The complaint 92
shall include: 93
(a) Written information confirming that the 94
complainant attempted to acquire and use, through the then 95
available standard support function provided by the 96
manufacturer, all relevant diagnostics, tools, service 97
parts, documentation, and updates to embedded software, 98
including communication with customer assistance via the 99
manufacturer's then standard process, if made available by 100
the manufacturer; and 101
(b) Evidence of manufacturer notification as required 102
in subdivision (1) of this subsection. 103
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10. No manufacturer shall be required to provide any 104
information or service parts under subsection 1 of this 105
section if the product for which the information or service 106
parts are sought is under a valid warranty for repair or 107
replacement of the product. 108
11. The attorney general shall enforce the provisions 109
of this section. Each violation of this section shall be 110
punishable by a fine of five hundred dollars, which shall be 111
deposited into the school fund of the county in which the 112
complaint arose. 113
12. This section shall not apply to manufacturers or 114
distributors of a medical device as defined in the Federal 115
Food, Drug, and Cosmetic Act, or a digital electronic 116
product or software manufactured for use in a medical 117
setting including diagnostic, monitoring, or control 118
equipment or any product or service that the manufacturer or 119
distributor of a medical device offers. 120
13. This section shall not apply to a manufacturer, 121
dealer, distributor, integrator, installer, or monitoring 122
service provider of a central station security device or 123
alarm system, including, but not limited to, all central 124
station alarm systems used to prevent, detect, protect 125
against, or respond to fire, carbon monoxide risks, falls, 126
medical alerts, or security incidents, or control access to 127
residential, commercial, and governmental property, 128
services, or information systems. 129
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