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| [ Introduced ] | [ House Amendment 001 ] |
92_HB1046eng HB1046 Engrossed LRB9206412WHcs 1 AN ACT concerning computers. 2 Be it enacted by the People of the State of Illinois, 3 represented in the General Assembly: 4 Section 1. Short title. This Act may be cited as the 5 Computer Lemon Act. 6 Section 5. Definitions. In this Act: 7 "Brand new computer" means a computer device which has 8 been recently assembled, is unused, and contains no 9 reconditioned parts. 10 "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 13 other device used with a computer or any programming for a 14 computer, whether preinstalled or purchased separately. 15 "Date of sale or lease" means the date when a computer 16 device is first delivered to a purchaser. 17 "Manufacturer" means a person or for-profit entity 18 engaged in the business of manufacturing or assembling 19 computers or computer software or accessories. 20 "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. 23 "Notice" means the means by which a purchaser advises a 24 manufacturer of a nonconformity. Notice may be transmitted 25 by any of the following means: by certified or registered 26 mail, return receipt requested; by facsimile transmission; 27 electronically; by e-mail; any means provided for in the 28 manufacturer's warranty or service materials. 29 "Purchaser" means a person who is a resident or temporary 30 resident of the State of Illinois or a business entity that 31 has fewer than 30 personal computers acting either in concert HB1046 Engrossed -2- LRB9206412WHcs 1 with a network or as stand-alone machines and who obtains a 2 computer device by lease, retail sale, internet sale, gift, 3 special contract, or other transaction, whether delivered or 4 currently located in this State. 5 Section 10. Notice to purchaser. 6 (a) At the time of sale or lease of a computer device, a 7 purchaser must be provided by the manufacturer an accurate 8 written statement of the purchaser's rights established by 9 this Act. The statement must be printed in 14-point boldface 10 type. The manufacturer must secure from the purchaser a 11 signed acknowledgment that the manufacturer has explained to 12 the purchaser his or her rights and that the purchaser 13 understands those rights. Unless a signed acknowledgment of 14 rights is secured, the time limits specified in Section 15 15 must be tolled. 16 (b) The manufacturer must conspicuously disclose the 17 name and version number of all software programs or 18 combinations of programs that will or may be likely to cause 19 operating problems with the computer device. In any action 20 brought under this Act, when there is a claim that such a 21 disclosure was not made, the burden is on the manufacturer to 22 prove that such a disclosure was made. 23 Section 15. Coverage and coverage period. 24 (a) A purchaser of a computer device is entitled to 25 effective repairs by the manufacturer for any nonconformity 26 that arises during the first 24 months of use, at no cost to 27 the purchaser. However, if the manufacturer has issued a 28 warranty or service contract, the coverage period must be the 29 greater of (i) the term specified in the warranty or service 30 contract or (ii) 24 months from the date of purchase. 31 (b) Within 5 business days after receiving notice from a 32 purchaser of a nonconformity, plus reasonable time for HB1046 Engrossed -3- LRB9206412WHcs 1 shipping of not more than 3 business days, the manufacturer 2 must repair any computer device and return it to the 3 purchaser subject to the following conditions: 4 (1) If on-site service is provided for in the 5 warranty, repairs must be made at the purchaser's 6 location without charge. 7 (2) If on-site service is not provided for in the 8 warranty, the manufacturer must arrange and pay for the 9 cost of shipping from the purchaser's location. 10 (3) If on-site service is conducted by the 11 purchaser, who, at the manufacturer's direction, performs 12 diagnostic tests or troubleshooting procedures or 13 attempts repairs, including but not limited to partial 14 disassembly, the service is considered to be conducted by 15 the manufacturer. 16 (4) All repairs must be guaranteed by the 17 manufacturer for a term of 2 years. 18 (c) If the repair is ineffective, the manufacturer must 19 have, upon notice from the purchaser, a second opportunity to 20 make an effective repair at the purchaser's physical 21 location, provided that the repair is completed within 3 22 business days. The manufacturer may not require the purchaser 23 to ship the unit back to the manufacturer for the final 24 repair opportunity regardless of the manufacturer's 25 willingness to pay for shipping costs. 26 (d) If the second repair is ineffective or if the 27 manufacturer fails to timely respond to the purchaser as 28 required under this Section, the purchaser may elect to do 29 either of the following: 30 (1) Receive from the manufacturer a refund of the 31 full purchase price paid at the time of sale or the full 32 value of the lease, as the case may be, plus finance and 33 collateral charges. 34 (2) Receive from the manufacturer delivery of a HB1046 Engrossed -4- LRB9206412WHcs 1 brand new computer device of equal or greater value than 2 the original price paid at the time of acquisition, 3 without charge or offset for use. 4 If more than one nonconformity has been subject to 5 repair, no second repair attempt is required before the 6 purchaser may seek the remedies provided in this Act. 7 (e) A manufacturer may, at its discretion, request 8 return of the unrepaired computer device at cost, if the 9 manufacturer has replaced the unit or refunded the purchase 10 price. 11 (f) No computer device returned in accordance with this 12 Section may be resold in this State. A violation of this 13 subsection is a violation of the Consumer Fraud and Deceptive 14 Business Practices Act, and in addition to remedies provided 15 by that Act, any subsequent purchaser is entitled to damages 16 in the amount of treble the purchase price paid by that 17 purchaser for the device. 18 (g) Notwithstanding subsections (e) and (f), a 19 manufacturer who refuses to honor the terms of any warranty 20 booklet or materials delivered to the purchaser at, prior to, 21 or after the delivery of the computer device is in violation 22 of the Consumer Fraud and Deceptive Business Practices Act, 23 and in addition to remedies provided by that Act, the 24 original purchaser is entitled to damages in the amount of 25 treble the purchase price paid by that purchaser for the 26 device. 27 Section 20. Records. A manufacturer must retain records 28 of all contacts, communications, notice transmissions, or 29 customer service dialogues between itself and a purchaser and 30 must maintain a list, by serial number, of all refunds or 31 replacements made under this Act. Copies must be made 32 available to the purchaser upon demand, regardless of whether 33 the manufacturer uses the services of a third party to manage HB1046 Engrossed -5- LRB9206412WHcs 1 purchaser claims. Failure to comply with this Section is a 2 violation of the Consumer Fraud and Deceptive Business 3 Practices Act, and in addition to remedies provided by that 4 Act, the original purchaser is entitled to damages in the 5 amount of treble the purchase price paid by that purchaser 6 for the device. 7 Section 25. Civil actions. 8 (a) If the manufacturer of a computer device violates 9 any provision of this Act, the purchaser may initiate a civil 10 action to recover as damages any and all remedies specified 11 in this Act. 12 (b) In addition to refund or replacement of the computer 13 device under Section 15, a prevailing purchaser is entitled 14 to an additional award of $6,000. 15 (c) If a purchaser initiates an action in this State for 16 a violation of this Act, the manufacturer must produce at 17 each and every court proceeding in that action a corporate 18 representative who is fully aware of the facts and 19 circumstances of the case and has available for the court's 20 review a copy of all records required by Section 20. 21 Section 30. Attorney's fees; costs; expenses. If a 22 purchaser prevails in a claim under this Act, the 23 manufacturer must pay the purchaser's reasonable attorney's 24 fees, costs, and expert expenses in resolving and, if 25 necessary, litigating an action under Section 25, regardless 26 of the cost of the computer device. 27 Section 35. Prohibited defenses. It is not a defense 28 under this Act that a nonconformity was caused by a software 29 programming problem under the following conditions: 30 (1) If the software was preinstalled by the 31 manufacturer. HB1046 Engrossed -6- LRB9206412WHcs 1 (2) Unless the manufacturer produces an expert 2 witness at the proceedings who examined the computer 3 device and can specify the exact cause and correction of 4 the problem. 5 (3) Unless the manufacturer has strictly complied 6 with the notice provisions of subsection (b) of Section 7 10. 8 Section 40. Expert witness. A purchaser who seeks relief 9 under this Act must not under any circumstances be required 10 to retain the opinion of an expert to prevail against a 11 manufacturer. 12 Section 45. Application of the Consumer Fraud and 13 Deceptive Business Practices Act. A violation of any 14 provision of this Act is also a violation of the Consumer 15 Fraud and Deceptive Business Practices Act. 16 Section 50. Rights preserved. Nothing in this Act limits 17 the purchaser from pursuing any other rights or remedies 18 under any other law, contract, or warranty. 19 Section 55. No waiver. The provisions of this Act may 20 not be waived by a purchaser. 21 Section 60. Applicability. This Act applies to all 22 computer devices purchased, leased, or delivered to a 23 purchaser on or after the effective date of this Act. 24 Section 90. The Consumer Fraud and Deceptive Business 25 Practices Act is amended by changing Section 2Z as follows: 26 (815 ILCS 505/2Z) (from Ch. 121 1/2, par. 262Z) 27 Sec. 2Z. Violations of other Acts. Any person who HB1046 Engrossed -7- LRB9206412WHcs 1 knowingly violates the Computer Lemon Act, the Automotive 2 Repair Act, the Home Repair and Remodeling Act, the Dance 3 Studio Act, the Physical Fitness Services Act, the Hearing 4 Instrument Consumer Protection Act, the Illinois Union Label 5 Act, the Job Referral and Job Listing Services Consumer 6 Protection Act, the Travel Promotion Consumer Protection Act, 7 the Credit Services Organizations Act, the Automatic 8 Telephone Dialers Act, the Pay-Per-Call Services Consumer 9 Protection Act, the Telephone Solicitations Act, the Illinois 10 Funeral or Burial Funds Act, the Cemetery Care Act, the Safe 11 and Hygienic Bed Act, the Pre-Need Cemetery Sales Act, 12 subsection (a) or (b) of Section 3-10 of the Cigarette Tax 13 Act, subsection (a) or (b) of Section 3-10 of the Cigarette 14 Use Tax Act, or the Electronic Mail Act commits an unlawful 15 practice within the meaning of this Act. 16 (Source: P.A. 90-426, eff. 1-1-98; 91-164, eff. 7-16-99; 17 91-230, eff. 1-1-00; 91-233, eff. 1-1-00; 91-810, eff. 18 6-13-00.)