SB0243eng 93rd General Assembly


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 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
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 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
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 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
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 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
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 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.
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 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
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 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, the Electronic Mail Act,  or  paragraph  (6)  of
15    subsection  (k) of Section 6-305 of the Illinois Vehicle Code
16    commits an unlawful practice within the meaning of this Act.
17    (Source: P.A. 91-164,  eff.  7-16-99;  91-230,  eff.  1-1-00;
18    91-233,  eff.  1-1-00;  91-810,  eff.  6-13-00;  92-426, eff.
19    1-1-02.)