Full Text of SB2638 93rd General Assembly
SB2638 93RD GENERAL ASSEMBLY
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93RD GENERAL ASSEMBLY
State of Illinois
2003 and 2004 SB2638
Introduced 2/4/2004, by Ira I. Silverstein SYNOPSIS AS INTRODUCED: |
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New Act |
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815 ILCS 505/2Z |
from Ch. 121 1/2, par. 262Z |
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Creates the Computer Lemon Act. Establishes rights for purchasers of
defective
computers and specified related devices in the case of ineffective repairs
under warranty,
failure of a manufacturer to take timely action regarding repairs, or repeated
malfunctions
or defects. Requires manufacturers to provide specified notices and keep
specified
records. Provides that a purchaser may bring a civil action against a
manufacturer that
violates the Act and recover damages, attorney's fees, costs, and expert
expenses.
Provides that a knowing violation of the Act constitutes an unlawful practice
under the
Consumer Fraud and Deceptive Business Practices Act, and amends the Consumer
Fraud
and Deceptive Business Practices Act accordingly.
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A BILL FOR
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SB2638 |
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LRB093 18717 WGH 44446 b |
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| AN ACT concerning computers.
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| Be it enacted by the People of the State of Illinois, | 3 |
| represented in the General Assembly:
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| Section 1. Short title. This Act may be cited as the | 5 |
| Computer
Lemon Act .
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| Section 5. Definitions. In this Act:
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| "Brand new computer" means a computer device which has been
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| recently assembled, is unused, and contains no reconditioned
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| parts.
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| "Computer device" means a central processing unit or | 11 |
| terminal
display screen, including all circuitry and | 12 |
| connective devices; a
printer; a modem; a scanner; or any other | 13 |
| device used with a
computer or any programming for a computer, | 14 |
| whether preinstalled
or purchased separately.
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| "Date of sale or lease" means the date when a computer | 16 |
| device
is first delivered to a purchaser.
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| "Manufacturer" means a person or for-profit entity engaged | 18 |
| in
the business of manufacturing or assembling computers or | 19 |
| computer
software or accessories.
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| "Nonconformity" means a defect, condition, or malfunction | 21 |
| that
impairs the use of a computer device or causes it to | 22 |
| operate in a
manner not intended.
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| "Notice" means the means by which a purchaser advises a
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| manufacturer of a nonconformity. Notice may be transmitted by | 25 |
| any of the
following means: by certified or registered mail, | 26 |
| return receipt
requested; by facsimile transmission; | 27 |
| electronically; by e-mail; any
means provided for in the | 28 |
| manufacturer's warranty or service
materials.
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| "Purchaser" means a person who is a resident or temporary
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| resident of the State of Illinois or a business entity that has
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| fewer than 30 personal computers acting either in concert with | 32 |
| a
network or as stand-alone machines and who obtains a computer
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| device by lease, retail sale, internet sale, gift, special
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| contract, or other transaction, whether delivered or currently
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| located in this State.
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| Section 10. Notice to purchaser.
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| (a) At the time of sale or lease of a computer device, a
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| purchaser must be provided by the manufacturer an accurate | 7 |
| written statement of
the purchaser's rights established by this | 8 |
| Act. The statement must
be printed in 14-point boldface type. | 9 |
| The manufacturer must secure
from the purchaser a signed | 10 |
| acknowledgment that the manufacturer
has explained to the | 11 |
| purchaser his or her rights and that the
purchaser understands | 12 |
| those rights. Unless a signed acknowledgment
of rights is | 13 |
| secured, the time limits specified in Section 15 must
be | 14 |
| tolled.
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| (b) The manufacturer
must conspicuously disclose the name | 16 |
| and version number of all
software programs or combinations of | 17 |
| programs that will or may be
likely to cause operating problems | 18 |
| with the computer device. In
any action brought under this Act, | 19 |
| when there is a claim that such
a disclosure was not made, the | 20 |
| burden is on the manufacturer to
prove that such a disclosure | 21 |
| was made.
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| Section 15. Coverage and coverage period.
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| (a) A purchaser of a computer device is entitled to | 24 |
| effective
repairs by the manufacturer for any nonconformity | 25 |
| that arises
during the first 24 months of use, at no cost to | 26 |
| the purchaser.
However, if the manufacturer has issued a | 27 |
| warranty
or service contract, the coverage period must be the | 28 |
| greater of
(i) the term specified in the warranty or service | 29 |
| contract or (ii)
24 months from the date of purchase.
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| (b) Within 5 business days after receiving notice from a
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| purchaser of a nonconformity, plus reasonable time for shipping | 32 |
| of
not more than 3 business days, the manufacturer must repair | 33 |
| any
computer device and return it to the purchaser subject to | 34 |
| the following
conditions:
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| (1) If on-site service is provided for in the warranty,
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| repairs must be made at the purchaser's location without
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| charge.
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| (2) If on-site service is not provided for in the | 5 |
| warranty, the
manufacturer must arrange and pay for the | 6 |
| cost of shipping from
the purchaser's location.
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| (3) If on-site service is conducted by the purchaser, | 8 |
| who, at the
manufacturer's direction, performs diagnostic | 9 |
| tests or troubleshooting
procedures or attempts repairs, | 10 |
| including but not limited to partial
disassembly, the | 11 |
| service is considered to be conducted by the manufacturer.
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| (4) All repairs must be guaranteed by the manufacturer | 13 |
| for a
term of 2 years.
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| (c) If the repair is ineffective, the manufacturer must | 15 |
| have,
upon notice from the purchaser, a second opportunity to | 16 |
| make an
effective repair at the purchaser's physical location, | 17 |
| provided
that the repair is completed within 3 business days. | 18 |
| The
manufacturer may not require the purchaser to ship the unit | 19 |
| back
to the manufacturer for the final repair opportunity | 20 |
| regardless of
the manufacturer's willingness to pay for | 21 |
| shipping costs.
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| (d) If the second repair is ineffective or if the | 23 |
| manufacturer
fails to timely respond to the purchaser as | 24 |
| required under this
Section, the purchaser may elect to do | 25 |
| either of the following:
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| (1) Receive from the manufacturer a refund of the full
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| purchase price paid at the time of sale or the full value | 28 |
| of
the lease, as the case may be, plus finance and | 29 |
| collateral
charges.
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| (2) Receive from the manufacturer delivery of a brand | 31 |
| new
computer device of equal or greater value than the | 32 |
| original
price paid at the time of acquisition, without | 33 |
| charge or offset
for use.
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| If more than one nonconformity has been subject to repair, | 35 |
| no
second repair attempt is required before the purchaser may | 36 |
| seek
the remedies provided in this Act.
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| (e) A manufacturer may, at its discretion, request return | 2 |
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the unrepaired computer device at cost, if the manufacturer | 3 |
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replaced the unit or refunded the purchase price.
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| (f) No computer device returned in accordance with this | 5 |
| Section
may be resold in this State. A violation of this | 6 |
| subsection is a
violation of the Consumer Fraud and Deceptive | 7 |
| Business Practices
Act, and in addition to remedies provided by | 8 |
| that Act, any
subsequent purchaser is entitled to damages in | 9 |
| the amount of
treble the purchase price paid by that purchaser | 10 |
| for the device.
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| (g) Notwithstanding subsections (e) and (f), a | 12 |
| manufacturer who
refuses to honor the terms of any warranty | 13 |
| booklet or materials
delivered to the purchaser at, prior to, | 14 |
| or after the delivery of
the computer device is in violation of | 15 |
| the Consumer Fraud and
Deceptive Business Practices Act, and in | 16 |
| addition to remedies
provided by that Act, the original | 17 |
| purchaser is entitled to
damages in the amount of treble the | 18 |
| purchase price paid by that
purchaser for the device.
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| Section 20. Records. A manufacturer must retain records of | 20 |
| all
contacts, communications, notice transmissions, or | 21 |
| customer
service dialogues between itself and a purchaser and | 22 |
| must maintain
a list, by serial number, of all refunds or | 23 |
| replacements made
under this Act. Copies must be made available | 24 |
| to the purchaser
upon demand, regardless of whether the | 25 |
| manufacturer uses the
services of a third party to manage | 26 |
| purchaser claims. Failure to
comply with this Section is a | 27 |
| violation of the Consumer Fraud and
Deceptive Business | 28 |
| Practices Act, and in addition to remedies
provided by that | 29 |
| Act, the original purchaser is entitled to
damages in the | 30 |
| amount of treble the purchase price paid by that
purchaser for | 31 |
| the device.
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| Section 25. Civil actions.
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| (a) If the manufacturer of a computer device violates any
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| provision of this Act, the purchaser may initiate a civil |
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| action
to recover as damages any and all remedies specified in | 2 |
| this Act.
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| (b) In addition to refund or replacement of the computer | 4 |
| device
under Section 15, a prevailing purchaser is entitled to | 5 |
| an
additional award of $6,000.
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| (c) If a purchaser initiates an action in this State for a
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| violation of this Act, the manufacturer must produce at each | 8 |
| and
every court proceeding in that action a corporate | 9 |
| representative
who is fully aware of the facts and | 10 |
| circumstances of the case and
has available for the court's | 11 |
| review a copy of all records
required by Section 20.
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| Section 30. Attorney's fees; costs; expenses. If a | 13 |
| purchaser prevails in a
claim
under this Act, the manufacturer | 14 |
| must pay the purchaser's
reasonable attorney's fees, costs, and | 15 |
| expert expenses in resolving
and, if necessary, litigating an | 16 |
| action under Section 25,
regardless of the cost of the computer | 17 |
| device.
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| Section 35. Prohibited defenses. It is not a defense under | 19 |
| this
Act that a nonconformity was caused by a software | 20 |
| programming
problem under the following conditions:
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| (1) If the software was preinstalled by the | 22 |
| manufacturer.
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| (2) Unless the manufacturer produces an expert witness | 24 |
| at the
proceedings who examined the computer device and can | 25 |
| specify the
exact cause and correction of the problem.
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| (3) Unless the manufacturer has strictly complied with | 27 |
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notice provisions of subsection (b) of Section 10.
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| Section 40. Expert witness. A purchaser who seeks relief | 29 |
| under
this Act must not under any circumstances be required to | 30 |
| retain
the opinion of an expert to prevail against a | 31 |
| manufacturer.
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| Section 45. Application of the Consumer Fraud and Deceptive
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| Business Practices Act. A violation of any provision of this | 2 |
| Act
is also a violation of the Consumer Fraud and Deceptive | 3 |
| Business
Practices Act.
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| Section 50. Rights preserved. Nothing in this Act limits | 5 |
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purchaser from pursuing any other rights or remedies under | 6 |
| any
other law, contract, or warranty.
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| Section 55. No waiver. The provisions of this Act
may not | 8 |
| be waived by a purchaser.
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| Section 60. Applicability. This Act applies to all | 10 |
| computer
devices purchased, leased, or delivered to a purchaser | 11 |
| on or after
the effective date of this Act.
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| Section 90. The Consumer Fraud and Deceptive Business | 13 |
| Practices
Act is amended by changing Section 2Z as follows:
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| (815 ILCS 505/2Z) (from Ch. 121 1/2, par. 262Z)
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| Sec. 2Z. Violations of other Acts. Any person who knowingly | 16 |
| violates
the Computer Lemon Act, the Automotive Repair Act,
the | 17 |
| Home Repair and Remodeling Act,
the Dance Studio Act,
the | 18 |
| Physical Fitness Services Act,
the Hearing Instrument Consumer | 19 |
| Protection Act,
the Illinois Union Label Act,
the Job Referral | 20 |
| and Job Listing Services Consumer Protection Act,
the Travel | 21 |
| Promotion Consumer Protection Act,
the Credit Services | 22 |
| Organizations Act,
the Automatic Telephone Dialers Act,
the | 23 |
| Pay-Per-Call Services Consumer Protection Act,
the Telephone | 24 |
| Solicitations Act,
the Illinois Funeral or Burial Funds Act,
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| the Cemetery Care Act,
the Safe and Hygienic Bed Act,
the | 26 |
| Pre-Need Cemetery Sales Act,
the High Risk Home Loan Act, | 27 |
| subsection (a) or (b) of Section 3-10 of the
Cigarette Tax Act, | 28 |
| subsection
(a) or (b) of Section 3-10 of the Cigarette Use Tax | 29 |
| Act, the Electronic
Mail Act, or paragraph (6)
of
subsection | 30 |
| (k) of Section 6-305 of the Illinois Vehicle Code
commits an | 31 |
| unlawful practice within the meaning of this Act.
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| (Source: P.A. 92-426, eff. 1-1-02; 93-561, eff. 1-1-04.)
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