§ 399-NN — Sale of digital electronic equipment; diagnostic and repair information

New York § 399-NN

• Jurisdiction: New York
• Law GBS: General Business
• Art. 26: Miscellaneous

Text

§ 399-nn. Sale of digital electronic equipment; diagnostic and repair\ninformation. 1. Definitions. For the purposes of this section, the\nfollowing terms shall have the following meanings:\n (a) "Authorized repair provider" means an individual or business who\nhas an arrangement with the original equipment manufacturer under which\nthe original equipment manufacturer grants to the individual or business\na license to use a trade name, service mark, or other proprietary\nidentifier for the purposes of offering the services of diagnosis,\nmaintenance, or repair of digital electronic equipment under the name of\nthe original equipment manufacturer, or other arrangement with the\noriginal equipment manufacturer to offer such services on behalf of the\noriginal equipment manufacturer.\n (b) "Digital electronic equipment" or "equipment" means any hardware\nproduct manufactured for the first time, and first sold or used in New\nYork on or after July first, two thousand twenty-three, that depends for\nits functioning, in whole or in part, on digital electronics embedded in\nor attached to the product for which the original equipment manufacturer\nmakes available tools, parts, and documentation either through\nauthorized repair providers, its own employees, or any authorized\nthird-party providers. "Digital electronic equipment" or "equipment"\ndoes not include any product sold under a specific\nbusiness-to-government or business-to-business contract, which is not\notherwise offered for sale directly by a retail seller.\n (c) "Documentation" means any manual, diagram, reporting output,\nservice code description, schematic diagram, or similar kinds of\ninformation required for effecting the services of diagnosis,\nmaintenance, or repair of digital electronic equipment.\n (d) "Fair and reasonable terms" means making available parts, tools,\nor documentation as follows:\n (i) With respect to documentation required for repair, that such\ndocumentation is made available by the original equipment manufacturer\nat no charge, except that, when the documentation is requested in\nphysical printed form, a charge may be included for the reasonable\nactual costs of preparing and sending the copy.\n (ii) With respect to tools, that such tools are made available by the\noriginal equipment manufacturer at no charge and without requiring\nauthorization for use or operation of such tool, or imposing impediments\nto access or use of the tool to diagnose, maintain, or repair digital\nelectronic equipment using parts provided by the original equipment\nmanufacturer in accordance with this section, and in a reasonably timely\nmanner, except that, when such tool is requested in physical form, a\ncharge may be included for the reasonable, actual costs of procuring,\npreparing and sending such tool.\n (iii) With respect to parts, that such parts are made available by the\noriginal equipment manufacturer, either directly or indirectly through\nan authorized repair provider or authorized third-party provider, to\nindependent repair providers and owners at reasonable costs and terms\nand which:\n A. are not conditioned on or imposing a substantial obligation or\nrestriction that is not reasonably necessary for enabling the owner or\nindependent repair provider to engage in the diagnosis, maintenance, or\nrepair of digital electronic equipment made by or on behalf of the\noriginal equipment manufacturer; and\n B. are not conditioned on an arrangement described in paragraph (a) of\nthis subdivision.\n (iv) Such parts, tools, and documentation shall be made available to\nan authorized repair provider, and shall further be made available by an\nauthorized repair provider to any independent repair provider or owner,\nprovided that such authorized repair provider is contractually and\npractically permitted by the original equipment manufacturer to sell\nsuch parts, tools, and documentation to any independent repair provider\nor owner, and provided further that such original equipment manufacturer\nshall not:\n A. retaliate against or hinder the ability of any authorized repair\nprovider to sell such parts, tools, or documentation through any means,\nincluding advertising restrictions or product allocation limitations\nunrelated to legitimate product shortages; or\n B. condition or impose a substantial obligation or restriction that is\nnot reasonably necessary for enabling the owner or independent repair\nprovider to engage in the diagnosis, maintenance, or repair of digital\nelectronic equipment made by or on behalf of the original equipment\nmanufacturer.\n (e) "Independent repair provider" means an individual or business\noperating in this state, that does not have an arrangement described in\nparagraph (a) of this subdivision with an original equipment\nmanufacturer, and who is engaged in the services of diagnosis,\nmaintenance, or repair of digital electronic equipment.\n (f) "Manufacturer of motor vehicle equipment" means a business engaged\nin the business of manufacturing or supplying components that are used\nin the manufacture, maintenance, or repair of a motor vehicle.\n (g) "Medical device" means an instrument, apparatus, implement,\nmachine, contrivance, implant, or other similar or related article,\nincluding a component part, or accessory, as defined in the federal\nFood, Drug and Cosmetic Act, 21 USC, Section 321 (h) as amended from\ntime to time, which is intended for use in the diagnosis of disease or\nother conditions, or in the cure, mitigation, treatment, or prevention\nof disease, in man or other animals.\n (h) "Motor vehicle" means a vehicle that is designed for transporting\npersons or property on a street or highway and is certified by the\nmanufacturer under all applicable federal safety and emissions standards\nand requirements for distribution and sale in the United States.\n (i) "Motor vehicle dealer" means an individual or business who, in the\nordinary course of business, is engaged in the business of selling or\nleasing motor vehicles to an individual or business pursuant to a\nfranchise agreement, has obtained a license under the vehicle and\ntraffic law, and is engaged in the services of diagnosis, maintenance,\nor repair of motor vehicles or motor vehicle engines pursuant to such\nfranchise agreement.\n (j) "Motor vehicle manufacturer" means a business engaged in the\nmanufacturing or assembling of motor vehicles.\n (k) "Original equipment manufacturer" means any individual or business\nthat, in the normal course of business, is engaged in the business of\nselling or leasing digital electronic equipment manufactured by or on\nbehalf of itself, to any individual or business.\n (l) "Owner" means an individual or business that owns or leases\ndigital electronic equipment purchased or used in this state.\n (m) "Part" or "parts" means any replacement part or assembly of parts,\neither new or used, made available by an original equipment manufacturer\nfor purposes of effecting the services of maintenance or repair of\ndigital electronic equipment manufactured or sold by the original\nequipment manufacturer. Part does not include printed board assemblies\nthat may allow device cloning in violation of 18 U.S.C. Section 1029 or\nother applicable law.\n (n) "Tool" means any software program, hardware implement, or other\napparatus used for diagnosis, maintenance, or repair of digital\nelectronic equipment, including software or other mechanisms that\nprovide, program, pair a part, calibrate functionality, or perform any\nother function required to repair or update the original equipment or\npart back to fully functional condition.\n (o) "Repair" means any act needed to restore digital electronic\nequipment or equipment to fully working order.\n (p) "Maintenance" means any act necessary to keep currently working\ndigital electronic equipment or equipment in fully working order.\n (q) "Diagnosis" means the process of identifying the issue or issues\nthat cause digital electronic equipment or equipment to not be in fully\nworking order.\n (r) "Modifications" or "modify" means any alteration to digital\nelectronic equipment that is not maintenance and not a repair.\n 2. Requirements. An original equipment manufacturer shall make\navailable to any independent repair provider and owner of digital\nelectronic equipment manufactured by or on behalf of or sold by such\noriginal equipment manufacturer, on fair and reasonable terms, any\ndocumentation, parts, and tools required for the diagnosis, maintenance,\nor repair of such digital electronic equipment and parts that are\nmanufactured for the first time, and first sold or used in New York on\nor after July first, two thousand twenty-three. Such documentation,\nparts, and tools shall be made available either directly by an original\nequipment manufacturer or via an authorized repair provider. An original\nequipment manufacturer who, in the regular course of business, offers to\nan owner the services of diagnosis, maintenance or repair of its own\ndigital electronic equipment, and who does not have an arrangement\ndescribed in paragraph (a) of subdivision one of this section with an\nunaffiliated individual or business, shall be considered an authorized\nrepair provider with respect to such equipment.\n 3. Limitations. (a) Nothing in this section shall be construed to\nrequire an original equipment manufacturer to divulge any trade secret\nor license any intellectual property to any owner or independent service\nprovider.\n (b) Nothing in this section shall be construed to alter the terms of\nany arrangement described in paragraph (a) of subdivision one of this\nsection in force between an authorized repair provider and an original\nequipment manufacturer, including, but not limited to, the performance\nor provision of warranty or recall repair work by an authorized repair\nprovider on behalf of an original equipment manufacturer pursuant to\nsuch arrangement, except that any provision in such terms that purports\nto waive, avoid, restrict, or limit the original equipment\nmanufacturer's obligations to comply with this section shall be void and\nunenforceable.\n (c) Nothing in this section shall be construed to require an original\nequipment manufacturer or an authorized repair provider to provide to an\nowner or independent repair provider access to information, other than\ndocumentation, that is provided by the original equipment manufacturer\nto an authorized repair provider pursuant to the terms of an arrangement\ndescribed in paragraph (a) of subdivision one of this section.\n (d) Nothing in this section shall be construed to require an original\nequipment manufacturer or authorized repair provider to make available\nany parts, tools or documentation for the purposes of modifying or\nmaking modifications to any digital electronic equipment.\n (e) Nothing in this section shall be construed to require an original\nequipment manufacturer or authorized repair provider to make available\nany parts, tools, or documentation required for the diagnosis,\nmaintenance, or repair of public safety communications equipment, the\nintended use of which is for emergency response or prevention purposes\nby an emergency service organization such as a police, fire or emergency\nmedical services agency.\n (f) Nothing in this section shall be construed to require any original\nequipment manufacturer or authorized repair provider to make available\nany parts, tools, or documentation required for the diagnosis,\nmaintenance, or repair of digital electronic equipment in a manner that\nis inconsistent with or in violation of any federal law, such as gaming\nand entertainment consoles, related software and components.\n (g) Nothing in this section shall be construed to require any original\nequipment manufacturer or authorized repair provider to make available\nany parts, tools, or documentation required for the diagnosis,\nmaintenance, or repair of any home appliance that has a digital\nelectronic product embedded within it, including, but not limited to,\nrefrigerators, ovens, microwaves, air conditioning, heating units, and\nsecurity devices or alarm systems including any related software and\ncomponents.\n (h) Nothing in this section shall prevent an original equipment\nmanufacturer from establishing reasonable training and certification\nprograms for independent repair providers, however, no independent\nrepair provider shall be required to complete any such training or\ncertification program as a condition to be covered by the rights granted\nunder this chapter.\n (i) Nothing in this section shall prevent an original equipment\nmanufacturer from offering parts, such as integrated batteries, to\nindependent repair providers or owners pre-assembled with other parts\nrather than as individual components, where the individual components\nmay pose a heightened safety risk if installed improperly.\n (j) Nothing in this section shall require an original equipment\nmanufacturer to make available special documentation, tools, and parts\nthat would disable or override anti-theft security measures set by the\nowner of the equipment without the owner's authorization.\n 4. Exclusions. Nothing in this section shall apply to:\n (a) a motor vehicle manufacturer, manufacturer of motor vehicle\nequipment, or motor vehicle dealer acting in such capacity, or to any\nproduct or service of a motor vehicle manufacturer, manufacturer of\nmotor vehicle equipment, or motor vehicle dealer acting in such\ncapacity;\n (b) a medical device, as defined in this section, or a digital\nelectronic product found in a medical setting including diagnostic,\nmonitoring, or control equipment or any product or service that they\noffer; or\n (c) a manufacturer, distributor, importer, or dealer of any off-road\n(non-road) equipment, including but not limited to, farm and utility\ntractors, farm implements, farm machinery, forestry equipment,\nindustrial equipment, utility equipment, construction equipment, compact\nconstruction equipment, mining equipment, turf, yard and garden\nequipment, outdoor power equipment (including portable generators),\nmarine, all-terrain sports and recreational vehicles (including racing\nvehicles), stand-alone or integrated stationary or mobile internal\ncombustion engines, other power sources, (including without limitation,\ngenerator sets, electric/battery and fuel cell power), power tools, and\nany tools, technology, attachments, accessories, components and repair\nparts for any of the foregoing.\n (d) commercial and industrial electrical equipment (including power\ndistribution equipment, such as medium/low voltage switchgear and\ntransformers, power control equipment, such as medium/low voltage motor\ncontrol and drives, power quality equipment, such as uninterruptable\npower supplies, remote power panels, power distribution units and\nstatic/transfer switches) and any tools, technology, attachments,\naccessories, components and repair parts for any of the foregoing.\n (e) an electronic bicycle manufacturer, distributor, importer,\nretailer or dealer.\n 5. No original equipment manufacturer or authorized repair provider\nshall be liable for any damage or injury caused to any digital\nelectronic equipment, person, or property which occurs as a result of\nrepair, diagnosis, maintenance, or modification performed by an\nindependent repair provider or owner, including but not limited to, any\nindirect, incidental, special or consequential damages; any loss of\ndata, privacy or profits; or any inability to use, or reduced\nfunctionality of, the digital electronic equipment.\n 6. Before repairing digital electronic equipment, independent repair\nproviders shall provide to any customer, and publish on their website\nand the place of business, a written notice that contains the following\ninformation:\n (a) The independent repair provider is not an authorized repair\nprovider for the equipment;\n (b) The consumer should review the terms and conditions of any\nwarranty for the equipment, as repairs not performed by an authorized\nrepair provider may affect the warranty;\n (c) Warranties for consumer products are governed by the federal\nMagnuson-Moss Warranty Act (15 U.S.C. ch. 50 § 2301), which gives\nconsumers rights and protections that apply over conflicting provisions\nin the warranty;\n (d) Under the Magnuson-Moss Warranty Act, a warranty cannot require\nthat maintenance and repairs be performed only by an authorized repair\nprovider; and\n (e) Under the Magnuson-Moss Warranty Act, if damage to equipment is\nshown to be caused by equipment not offered or sold by the original\nequipment manufacturer or by faulty repair performed by a non-authorized\nrepair provider, that damage may not be covered by the warranty, but the\nwarranty may otherwise remain in effect.\n 7. Enforcement by the attorney general. (a) Whenever the attorney\ngeneral shall believe from evidence satisfactory to the attorney general\nthat any person, firm, corporation or association or agent or employee\nthereof has engaged in or is about to engage in any acts or practices in\nviolation of this section, the attorney general may bring an action in\nthe name and on behalf of the people of the state of New York to enjoin\nsuch unlawful acts or practices and to obtain restitution of any moneys\nor property obtained directly or indirectly by any such acts or\npractices in violation of this section. In such proceeding preliminary\nrelief may be granted under article sixty-three of the civil practice\nlaw and rules.\n (b) Except as provided herein, before any violation of this section is\nsought to be enjoined, the attorney general shall give such person,\nfirm, corporation, or association against whom such proceeding is\ncontemplated notice and an opportunity to show in writing, within five\nbusiness days after the delivery of such notice, why proceedings should\nnot be instituted against such person, firm, corporation, or\nassociation. Such notice by the attorney general shall be delivered by\ncertified mail and by first-class mail with proof of mailing. In any\nproceeding in which the attorney general seeks preliminary relief, such\nnotice shall not be required upon a finding by the attorney general that\nsuch notice and opportunity is not in the public interest.\n (c) In connection with any proposed proceeding under this section, the\nattorney general is authorized to take proof and make a determination of\nthe relevant facts, and to issue subpoenas in accordance with the civil\npractice law and rules.\n (d) This subdivision shall apply to all acts or practices declared to\nbe in violation of this section, whether or not subject to any other law\nof this state, and shall not supersede, amend or repeal any other law of\nthis state under which the attorney general is authorized to take any\naction or conduct any inquiry.\n (e) Any person, firm, corporation or association or agent or employee\nthereof who engages in any acts or practices in violation of this\nsection shall be liable to a civil penalty of not more than five hundred\ndollars for each violation, which shall accrue to the state of New York\nand may be recovered in a civil action brought by the attorney general.\n (f) Except in the instance of a dispute arising between an original\nequipment manufacturer and an authorized repair provider related to\neither party's compliance with an existing authorized repair agreement,\nan authorized repair provider shall have all the rights and remedies\nprovided in this section.\n