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1 | AN ACT concerning computers.
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2 | Be it enacted by the People of the State of Illinois, | ||||||||||||||||||||||||||
3 | represented in the General Assembly:
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4 | Section 1. Short title. This Act may be cited as the | ||||||||||||||||||||||||||
5 | Computer
Lemon Act.
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6 | Section 5. Definitions. In this Act:
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7 | "Brand new computer" means a computer device which has been
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8 | recently assembled, is unused, and contains no reconditioned
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9 | parts.
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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 other | ||||||||||||||||||||||||||
13 | device used with a
computer or any programming for a computer, | ||||||||||||||||||||||||||
14 | whether preinstalled
or purchased separately.
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15 | "Date of sale or lease" means the date when a computer | ||||||||||||||||||||||||||
16 | device
is first delivered to a purchaser.
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17 | "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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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.
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23 | "Notice" means the means by which a purchaser advises a
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24 | 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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29 | "Purchaser" means a person who is a resident or temporary
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30 | resident of the State of Illinois or a business entity that has
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31 | 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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1 | device by lease, retail sale, internet sale, gift, special
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2 | contract, or other transaction, whether delivered or currently
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3 | located in this State.
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4 | Section 10. Notice to purchaser.
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5 | (a) At the time of sale or lease of a computer device, a
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6 | 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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15 | (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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22 | Section 15. Coverage and coverage period.
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23 | (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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30 | (b) Within 5 business days after receiving notice from a
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31 | 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 | (1) If on-site service is provided for in the warranty,
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2 | repairs must be made at the purchaser's location without
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3 | charge.
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4 | (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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7 | (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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12 | (4) All repairs must be guaranteed by the manufacturer | ||||||
13 | for a
term of 2 years.
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14 | (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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22 | (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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26 | (1) Receive from the manufacturer a refund of the full
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27 | 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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30 | (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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34 | 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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1 | (e) A manufacturer may, at its discretion, request return | ||||||
2 | of
the unrepaired computer device at cost, if the manufacturer | ||||||
3 | has
replaced the unit or refunded the purchase price.
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4 | (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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11 | (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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19 | 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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32 | Section 25. Civil actions.
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33 | (a) If the manufacturer of a computer device violates any
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34 | provision of this Act, the purchaser may initiate a civil |
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1 | action
to recover as damages any and all remedies specified in | ||||||
2 | this Act.
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3 | (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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6 | (c) If a purchaser initiates an action in this State for a
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7 | 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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12 | 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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18 | 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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21 | (1) If the software was preinstalled by the | ||||||
22 | manufacturer.
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23 | (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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26 | (3) Unless the manufacturer has strictly complied with | ||||||
27 | the
notice provisions of subsection (b) of Section 10.
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28 | 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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32 | Section 45. Application of the Consumer Fraud and Deceptive
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1 | 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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4 | Section 50. Rights preserved. Nothing in this Act limits | ||||||
5 | the
purchaser from pursuing any other rights or remedies under | ||||||
6 | any
other law, contract, or warranty.
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7 | Section 55. No waiver. The provisions of this Act
may not | ||||||
8 | be waived by a purchaser.
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9 | 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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12 | Section 90. The Consumer Fraud and Deceptive Business | ||||||
13 | Practices
Act is amended by changing Section 2Z as follows:
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14 | (815 ILCS 505/2Z) (from Ch. 121 1/2, par. 262Z)
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15 | 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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25 | 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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1 | (Source: P.A. 92-426, eff. 1-1-02; 93-561, eff. 1-1-04.)
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