11102239D
HOUSE BILL NO. 2259
Offered January 12, 2011
Prefiled January 12, 2011
A BILL to amend and reenact §§ 6.2-1816, 6.2-2218, 59.1-501.2,
59.1-504.4, and 59.1-508.1 of the Code of Virginia, relating to the Uniform
Computer Information Transactions Act; liability of providers and users of
digital identity credentials; technical amendments.
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Patron-- May
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Referred to Committee on Science and Technology
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Be it enacted by the General Assembly of Virginia:
1. That §§ 6.2-1816, 6.2-2218, 59.1-501.2, 59.1-504.4,
and 59.1-508.1 of the Code of Virginia are amended and reenacted as follows:
§ 6.2-1816. (Effective October 1, 2010) Required and
prohibited business methods.
Each licensee shall comply with the following requirements:
1. Each payday loan shall be evidenced by a written loan
agreement, which shall be signed by the borrower and a person authorized by the
licensee to sign such agreements and dated the same day the loan is made and
disbursed. The loan agreement shall set forth, at a minimum: (i) the principal
amount of the loan; (ii) the interest and any fee charged; (iii) the annual
percentage rate, which shall be stated using that term, applicable to the
transaction calculated in accordance with Federal Reserve Board Regulation Z
(12 C.F.R. Part 226); (iv) evidence of receipt from the borrower of a check,
dated as of the date that the loan is due, as security for the loan, stating
the amount of the check; (v) an agreement by the licensee not to present the
check for payment or deposit until the date the loan is due, which date shall
produce a loan term of at least two times the borrower's pay cycle and after
which date interest shall not accrue on the amount advanced at a greater rate
than six percent per year; (vi) an agreement by the licensee that the borrower
shall have the right to cancel the loan transaction at any time before the
close of business on the next business day following the date of the
transaction by paying to the licensee, in the form of cash or other good funds
instrument, the amount advanced to the borrower; and (vii) an agreement that
the borrower shall have the right to prepay the loan prior to maturity by
paying the licensee the principal amount advanced and any accrued and unpaid
interest, fees, and charges.
2. The licensee shall give a duplicate original of the loan
agreement to the borrower at the time of the transaction.
3. A licensee shall not obtain any agreement from the borrower
(i) giving the licensee or any third person power of attorney or authority to
confess judgment for the borrower; (ii) authorizing the licensee or any third
party to bring suit against the borrower in a court outside the Commonwealth;
or (iii) waiving any right the borrower has under this chapter.
4. A licensee shall not require or accept more than one check
from a borrower as security for any loan.
5. A licensee shall not cause any person to be obligated to
the licensee in any capacity at any time in the principal amount of more than
$500.
6. A licensee shall not (i) refinance, renew or extend any
payday loan; (ii) make a loan to a person if the loan would cause the person to
have more than one payday loan from any licensee outstanding at the same time;
(iii) make a loan to a borrower on the same day that a borrower paid or
otherwise satisfied in full a previous payday loan; (iv) make a payday loan to
a person within 90 days following the date that the person has paid or
otherwise satisfied in full a payday loan through an extended payment plan as
provided in subdivision 26; (v) make a payday loan to a person within 45 days
following the date that the person has paid or otherwise satisfied in full a
fifth payday loan made within a period of 180 days as provided in subdivision
27 a; or (vi) make a payday loan to a person within the longer of (a) 90 days
following the date that the person has paid or otherwise satisfied in full an
extended term loan or (b) 150 days following the date that the person enters
into an extended term loan, as provided in subdivision 27 b.
7. A licensee shall not cause a borrower to be obligated upon
more than one loan at any time.
8. A check accepted by a licensee as security for any loan
shall be dated as of the date the loan is due.
9. Notwithstanding any provision of § 8.01-226.10 to the
contrary, a licensee shall not threaten, or cause to be instigated, criminal
proceedings against a borrower if a check given as security for a loan is
dishonored. In addition to any other remedies available at law, a licensee that
knowingly violates this prohibition shall pay the affected borrower a civil
monetary penalty equal to three times the amount of the dishonored check.
10. A licensee shall not take an interest in any property
other than a check payable to the licensee as security for a loan.
11. A licensee shall not make a loan to a borrower to enable
the borrower to pay for any other product or service sold at the licensee's
office location.
12. Loan proceeds shall be disbursed in cash or by the
licensee's business check. No fee shall be charged by the licensee or an
affiliated check casher for cashing a loan proceeds check.
13. A check given as security for a loan shall not be
negotiated to a third party.
14. Upon receipt of a check given as security for a loan, the
licensee shall stamp the check with an endorsement stating: "This check is
being negotiated as part of a payday loan pursuant to Chapter 18 (§ 6.2-1800 et
seq.) of Title 6.2 of the Code of Virginia, and any holder of this check takes
it subject to all claims and defenses of the maker."
15. Before entering into a payday loan, the licensee shall
provide each borrower with a pamphlet, in form consistent with regulations
adopted by the Commission, explaining in plain language the rights and
responsibilities of the borrower and providing a toll-free number at the
Commission for assistance with complaints.
16. Before disbursing funds pursuant to a payday loan, a
licensee shall provide a clear and conspicuous printed notice to the borrower
indicating that a payday loan is not intended to meet long-term financial needs
and that the borrower should use a payday loan only to meet short-term cash
needs.
17. A borrower shall be permitted to make partial payments, in
increments of not less than $5, on the loan at any time prior to maturity,
without charge. The licensee shall give the borrower signed, dated receipts for
each payment made, which shall state the balance due on the loan. Upon
repayment of the loan in full, the licensee shall mark the original loan
agreement with the word "paid" or "canceled," return it to
the borrower, and retain a copy in its records.
18. Each licensee shall conspicuously post in each approved
office a schedule of fees and interest charges, with examples using a $300 loan
payable in 14 days and 30 days.
19. Any advertising materials used to promote payday loans
that includes the amount of any payment, expressed either as a percentage or
dollar amount, or the amount of any finance charge, shall also include a
statement of the interest, fees and charges, expressed as an annual percentage
rate, payable using as an example a $300 loan payable in 14 and 30 days.
20. In any print media advertisement, including any web page,
used to promote payday loans, the disclosure statements shall be conspicuous.
"Conspicuous" shall have the meaning set forth in subdivision (a) (14) of §
59.1-501.2. If a single advertisement consists of multiple pages, folds, or
faces, the disclosure requirement applies only to one page, fold, or face. In a
television advertisement used to promote payday loans, the visual disclosure
legend shall include 20 scan lines in size. In a radio advertisement or
advertisement communicated by telephone used to promote payday loans, the
disclosure statement shall last at least two seconds and the statement shall be
spoken so that its contents may be easily understood.
21. A licensee or affiliate shall not knowingly make a payday
loan to a person who is a member of the military services of the United States or the spouse or other dependent of a member of the military services of the United States. Prior to making a payday loan, every licensee or affiliate shall inquire of
every prospective borrower if he is a member of the military services of the United States or the spouse or other dependent of a member of the military services of the United States. The loan documents shall include verification that the borrower is not a
member of the military services of the United States or the spouse or other
dependent of a member of the military services of the United States.
22. In collecting or attempting to collect a payday loan, a
licensee shall comply with the restrictions and prohibitions applicable to debt
collectors contained in the Fair Debt Collection Practices Act (15 U.S.C. §
1692 et seq.) regarding harassment or abuse, false or misleading
misrepresentations, and unfair practices in collections.
23. A licensee may not file or initiate a legal proceeding of
any kind against a borrower until 60 days after the date of default on a payday
loan, during which period the licensee and borrower may voluntarily enter into
a repayment arrangement.
24. A licensee shall not obtain authorization to
electronically debit a borrower's deposit account in connection with any payday
loan.
25. A licensee may not engage in any unfair, misleading,
deceptive, or fraudulent acts or practices in the conduct of its business.
26. A borrower may pay any outstanding payday loan from any
licensee by means of an extended payment plan as follows:
a. A borrower shall not be eligible to enter into more than
one extended payment plan in any 12-month period.
b. To enter into an extended payment plan with respect to a
payday loan, the borrower shall agree in a written and signed document to repay
the amount owed in at least four equal installments over an aggregate term of
at least 60 days. Interest shall not accrue on the indebtedness during the term
of the extended payment plan. The borrower may prepay an extended payment plan
in full at any time without penalty. If the borrower fails to pay the amount
owed under the extended payment plan when due, then the licensee may
immediately accelerate the unpaid loan balance.
c. If the borrower enters into an extended payment plan, then
no licensee may make a payday loan to the borrower until a waiting period of 90
days shall have elapsed from the date that the borrower pays or satisfies in
full the balance of the loan under the terms of the extended payment plan.
d. At each approved office, the licensee shall post a notice
in at least 24-point bold type, in a form established or approved by the
Commission, informing persons that they may be eligible to enter into an
extended payment plan.
e. The licensee shall provide oral notice to any borrower who
is eligible to enter into an extended payment plan, at the time a payday loan
is made, which notice shall inform the borrower of his ability to pay the
payday loan by means of an extended payment plan. The information contained in
the notice shall be in a form provided by the Bureau.
27. In addition to the other conditions set forth in this
chapter, the fifth payday loan that is made to any person within a period of
180 days shall be made only in compliance with, at the option of the borrower,
either of the following:
a. The fifth payday loan is made upon the same terms and
conditions otherwise applicable to payday loans under the terms of this
chapter, except that (i) no licensee may make a payday loan to such borrower
during a period of 45 days following the date such fifth payday loan is paid or
otherwise satisfied in full and (ii) the borrower may elect, at any time on or
before its due date, to repay such fifth payday loan by means of an extended
payment plan as provided in subdivision 26 b; or
b. The fifth payday loan is made in the form of an extended
term loan. An extended term loan is a loan that complies with the terms and
conditions otherwise applicable to payday loans under the terms of this chapter
except that (i) the principal amount of the loan, and any interest and fees
permitted by § 6.2-1817, shall be payable in four equal installments over a payment
period of 60 days following the date the loan is made and (ii) no licensee may
make a payday loan to such borrower during the longer of (a) 90 days following
the date the extended term loan is paid or otherwise satisfied in full or (b)
150 days following the date the extended term loan is made.
§ 6.2-2218. (Effective October 1, 2010) Advertising.
A. No person licensed or required to be licensed under this
chapter shall use or cause to be published any advertisement that (i) contains
any false, misleading, or deceptive statement or representation or (ii)
identifies the person by any name other than the name set forth on the license
issued by the Commission.
B. Any advertising materials used to promote the price, cost,
or interest rate of motor vehicle title loans shall disclose the amount of any
minimum monthly payments and a statement of finance charges, expressed as an
annual percentage rate, payable using as an example a $1,000 loan that is
repaid over a 12-month period. In any print media advertisement, including any
web page, used to promote motor vehicle title loans, the disclosure shall be
conspicuous. "Conspicuous" shall have the meaning set forth in subdivision (a) (14) of §
59.1-501.2. If a single advertisement consists of multiple pages, folds, or
faces, the disclosure requirement applies only to one page, fold, or face. In a
television advertisement used to promote motor vehicle title loans, the visual
disclosure legend shall include 20 scan lines in size. In a radio advertisement
or advertisement communicated by telephone used to promote motor vehicle title
loans, the disclosure statement shall last at least two seconds and the
statement shall be spoken so that its contents may be easily understood.
§ 59.1-501.2. Definitions.
(a)A. As used in this chapter, unless the context requires a different meaning:
(1) "Access
contract" means a contract to obtain by electronic means access to, or
information from, an information processing system of another person, or the
equivalent of such access.
(2) "Access
material" means any information or material, such as a document, address, trustmark, or access code, that
is necessary to obtain authorized access to information or control or
possession of a copy.
(3) "Aggrieved
party" means a party entitled to a remedy for breach of contract.
(4) "Agreement"
means the bargain of the parties in fact as found in their language or by
implication from other circumstances, including course of performance, course
of dealing, and usage of trade as provided in this chapter.
(5) "Attribution
procedure" means a procedure to verify that an electronic authentication,
display, message, record, or performance is that of a particular person or to
detect changes or errors in information. The term includes a procedure that requires
the use of algorithms or other codes, identifying words or numbers, encryption,
or callback or other acknowledgment.
(6) "Authenticate"
means (i) to sign or (ii) with the intent to sign a record, to execute or adopt
an electronic symbol, sound, message, or process referring to, attached to,
included in, or logically associated or linked with, that record.
(7) "Automated
transaction" means a transaction in which a contract is formed in whole or
part by electronic actions of one or both parties that are not previously
reviewed by an individual in the ordinary course.
(8) "Cancellation"
means the ending of a contract by a party because of breach of contract by
another party.
(9) "Computer"
means an electronic device that accepts information in digital or similar form
and manipulates it for a result based on a sequence of instructions.
(10) "Computer
information" means information in electronic form that is obtained from or
through the use of a computer or that is in a form capable of being processed by
a computer. The term includes a copy of the information and any documentation
or packaging associated with the copy.
(11) "Computer
information transaction" means an agreement or the performance of it to
create, modify, transfer, or license computer information or informational
rights in computer information. The term includes a support contract under §
59.1-506.12. The term does not include a transaction merely because the
parties' agreement provides that their communications about the transaction will
be in the form of computer information.
(12) "Computer
program" means a set of statements or instructions to be used directly or
indirectly in a computer to bring about a certain result. The term does not
include separately identifiable informational content.
(13) "Consequential
damages" resulting from breach of contract includes (i) any loss resulting
from general or particular requirements and needs of which the breaching party at
the time of contracting had reason to know and which could not reasonably be
prevented, and (ii) any injury to an individual or damage to property other
than the subject matter of the transaction proximately resulting from breach of
warranty. The term does not include direct damages or incidental damages.
(14) "Conspicuous,"
with reference to a term, means so written, displayed, or presented that a
reasonable person against which it is to operate ought to have noticed it. A
term in an electronic record intended to evoke a response by an electronic
agent is conspicuous if it is presented in a form that would enable a
reasonably configured electronic agent to take it into account or react to it
without review of the record by an individual. With respect to a person,
conspicuous terms include (i) a heading in capitals in a size equal to or
greater than, or in contrasting type, font, or color to, the surrounding text,
(ii) language in the body of a record or display in larger or other contrasting
type, font, or color or set off from the surrounding text by symbols or other
marks that draw attention to the language, and (iii) a term prominently
referenced in an electronic record or display which is readily accessible or
reviewable from the record or display. With respect to a person or an
electronic agent, conspicuous terms include a term, or reference to a term,
that is so placed in a record or display that the person or electronic agent
cannot proceed without taking action with respect to the particular term or
reference.
(15) "Consumer"
means an individual who is a licensee of information or informational rights
that the individual at the time of contracting intended to be used primarily
for personal, family, or household purposes. The term does not include an
individual who is a licensee primarily for professional or commercial purposes,
including agriculture, business management, and investment management other
than management of the individual's personal or family investments.
(16) "Consumer
contract" means a contract between a merchant licensor and a consumer.
(17) "Contract"
means the total legal obligation resulting from the parties' agreement as
affected by this chapter and other applicable law.
(18) "Contract
fee" means the price, fee, rent, or royalty payable in a contract under
this chapter or any part of the amount payable.
(19) "Contractual
use term" means an enforceable term that defines or limits the use,
disclosure of, or access to licensed information or informational rights,
including a term that defines the scope of a license.
(20) "Copy"
means the medium on which information is fixed on a temporary or permanent
basis and from which it can be perceived, reproduced, used, or communicated,
either directly or with the aid of a machine or device.
(21) "Course
of dealing" means a sequence of previous conduct between the parties to a
particular transaction which establishes a common basis of understanding for
interpreting their expressions and other conduct.
(22) "Course
of performance" means repeated performances, under a contract that
involves repeated occasions for performance, which are accepted or acquiesced
in without objection by a party having knowledge of the nature of the
performance and an opportunity to object to it.
(23) "Court"
includes an arbitration or other dispute-resolution forum if the parties have
agreed to use of that forum or its use is required by law.
(24) "Delivery,"
with respect to a copy, means the voluntary physical or electronic transfer of
possession or control.
(25) "Direct
damages" means compensation for losses measured by § 59.1-508.8 (b) (1) or
§ 59.1-508.9 (a) (1). The term does not include consequential damages or
incidental damages.
(26) "Electronic"
means relating to technology having electrical, digital, magnetic, wireless,
optical, electromagnetic, or similar capabilities.
(27) "Electronic
agent" means a computer program, or electronic or other automated means,
used independently to initiate an action, or to respond to electronic messages
or performances, on the person's behalf without review or action by an
individual at the time of the action or response to the message or performance.
(28) "Electronic
message" means a record or display that is stored, generated, or transmitted
by electronic means for the purpose of communication to another person or
electronic agent.
"Federated
identity management" means a system that allows individuals to use the same
identity credential, identity token, or other identifier to access networks or
databases of more than one enterprise in order to conduct transactions and
share information.
"Federation" means a group of two or more trusted partners that
allow a user from one federation partner to access networks or databases from
another federation partner in a secure and trustworthy manner.
"Federation
operator" means an individual or group that defines standards for its
respective federation and evaluates participation in the federation or network
to ensure compliance with policy, including the ability to request audits of
participants for verification.
(29) "Financial
accommodation contract" means an agreement under which a person extends a
financial accommodation to a licensee and which does not create a security
interest governed by Title 8.9A. The agreement may be in any form, including a
license or lease.
(30) "Financial
services transaction" means an agreement that provides for, or a
transaction that is, or entails access to, use, transfer, clearance,
settlement, or processing of:
(A) 1. a deposit, loan, funds, or
monetary value represented in electronic form and stored or capable of storage
by electronic means and retrievable and transferable by electronic means, or
other right to payment to or from a person;
(B) 2. an instrument or other item;
(C) 3. a payment order, credit card
transaction, debit card transaction, funds transfer, automated clearing house
transfer, or similar wholesale or retail transfer of funds;
(D) 4. a letter of credit, document
of title, financial asset, investment property, or similar asset held in a
fiduciary or agency capacity; or
(E) 5. related identifying,
verifying, access-enabling, authorizing, or monitoring information.
(31) "Financier"
means a person that provides a financial accommodation to a licensee under a
financial accommodation contract and either (i) becomes a licensee for the
purpose of transferring or sublicensing the license to the party to which the
financial accommodation is provided or (ii) obtains a contractual right under
the financial accommodation contract to preclude the licensee's use of the
information or informational rights under a license in the event of breach of
the financial accommodation contract. The term does not include a person that
selects, creates, or supplies the information that is the subject of the
license, owns the informational rights in the information, or provides support
for, modifications to, or maintenance of the information.
(32) "Good
faith" means honesty in fact and the observance of reasonable commercial
standards of fair dealing.
(33) "Goods"
means all things that are movable at the time relevant to the computer
information transaction. The term includes the unborn young of animals, growing
crops, and other identified things to be severed from realty which are covered
by § 8.2-107. The term does not include computer information, money, the
subject matter of foreign exchange transactions, documents, letters of credit,
letter-of-credit rights, instruments, investment property, accounts, chattel
paper, deposit accounts, or general intangibles.
"Identifying
attribute" or "identifier" means a property or personal information associated
with a licensee.
"Identity
credential" means an object to be verified when presented in an authentication
transaction. The identity credential can be bound in some way to the licensee to whom it
was issued, or it can be
a bearer credential. Electronic credentials
are digital documents that bind an identity or an identifying attribute to a
licensee's identity token.
"Identity
provider" means the authoritative entity responsible for authenticating a
licensee and asserting an identity for that licensee through the issuance of an
identity credential or identity token.
"Identity token"
means hardware or software the licensee possesses and access controls used to
authenticate the licensee's identity or identifying attributes contained in the
identity credential.
(34) "Incidental
damages" resulting from breach of contract:
(A) 1. means compensation for any
commercially reasonable charges, expenses, or commissions reasonably incurred
by an aggrieved party with respect to (i) inspection, receipt, transmission,
transportation, care, or custody of identified copies or information that is
the subject of the breach; (ii) stopping delivery, shipment, or transmission;
(iii) effecting cover or retransfer of copies or information after the breach;
(iv) other efforts after the breach to minimize or avoid loss resulting from
the breach; and (v) matters otherwise incident to the breach; and
(B) 2. does not include
consequential damages or direct damages.
(35) "Information"
means data, text, images, sounds, mask works, identifying attributes used in identity credentials
and tokens, trustmarks, or computer programs, including
collections and compilations of them.
(36) "Information processing system" means an
electronic system for creating, generating, sending, receiving, storing,
displaying, or processing information.
(37) "Informational
content" means information that is intended to be communicated to or
perceived by an individual in the ordinary use of the information, or the
equivalent of that information.
(38) "Informational
rights" include all rights in information created under laws governing
patents, copyrights, mask works, trade secrets, trademarks, publicity rights,
or any other law that gives a person, independently of contract, a right to
control or preclude another person's use of or access to the information on the
basis of the rights holder's interest in the information.
"Information
processing system" means an electric system for creating, generating, sending,
receiving, storing, displaying, or processing information.
(39) "Insurance
services transaction" means an agreement between an insurer and an insured
that provides for, or a transaction that is or entails access to, use,
transfer, clearance, settlement, or processing of:
(A) an1. An
insurance policy, contract, or certificate; or
(B) a2. A right
to payment under an insurance policy, contract or certificate.
(40) "Knowledge,"
with respect to a fact, means actual knowledge of the fact.
(41) "License"
means a contract that authorizes access to, or use, distribution, performance,
modification, or reproduction of, information or informational rights, but
expressly limits the access or uses authorized or expressly grants fewer than
all rights in the information, whether or not the transferee has title to a
licensed copy. The term includes an access contract, a lease of a computer
program, and a consignment of a copy. The term does not include a reservation
or creation of a security interest to the extent the interest is governed by
Title 8.9A.
(42) "Licensee"
means a person entitled by agreement to acquire or exercise rights in, or to
have access to or use of, computer information under an agreement to which this
chapter applies. A licensor is not a licensee with respect to rights reserved
to it under the agreement.
(43) "Licensor"
means a person obligated by agreement to transfer or create rights in, or to
give access to or use of, computer information or informational rights in it
under an agreement to which this chapter applies. Between the provider of
access and a provider of the informational content to be accessed, the provider
of content is the licensor. In an exchange of information or informational
rights, each party is a licensor with respect to the information, informational
rights, or access it gives.
(44) "Mass-market
license" means a standard form used in a mass-market transaction.
(45) "Mass-market
transaction" means a transaction that is:
(A) a1. A
consumer contract; or
(B) any2. Any
other transaction with an end-user licensee if:
(i) thea. The
transaction is for information or informational rights directed to the general
public as a whole, including consumers, under substantially the same terms for
the same information;
(ii) theb. The
licensee acquires the information or informational rights in a retail
transaction under terms consistent with an ordinary transaction in a retail
market; and
(iii) thec. The
transaction is not (ai) a contract for
redistribution or for public performance or public display of a copyrighted
work; (bii)
a transaction in which the information is customized or otherwise specially
prepared by the licensor for the licensee, other than minor customization using
a capability of the information intended for that purpose; (ciii)
a site license; or (div) an access contract.
(46) "Merchant"
means a person:
(A) who1. Who
deals in information or informational rights of the kind involved in the
transaction;
(B) who2. Who
by the person's occupation holds himself out as having knowledge or skill
peculiar to the relevant aspect of the business practices or information
involved in the transaction; or
(C) to3. To
whom the knowledge or skill peculiar to the practices or information involved
in the transaction may be attributed by the person's employment of an agent or broker
or other intermediary who by his occupation holds himself out as having the
knowledge or skill.
(47) "Nonexclusive
license" means a license that does not preclude the licensor from
transferring to other licensees the same information, informational rights, or
contractual rights within the same scope. The term includes a consignment of a
copy.
(48) "Notice"
of a fact means knowledge of the fact, receipt of notification of the fact, or
reason to know the fact exists.
(49) "Notify"
or "give notice" means to take such steps as may be reasonably
required to inform the other person in the ordinary course, whether or not the
other person actually comes to know of it.
(50) "Party"
means a person that engages in a transaction or makes an agreement under this
chapter.
(51) "Person"
means an individual, corporation, business trust, estate, trust, partnership,
limited liability company, association, joint venture, governmental
subdivision, instrumentality, or agency, public corporation, or any other legal
or commercial entity.
(52) "Published
informational content" means informational content prepared for or made
available to recipients generally, or to a class of recipients, in
substantially the same form. The term does not include informational content
that is (i) customized for a particular recipient by one or more individuals
acting as or on behalf of the licensor, using judgment or expertise or (ii)
provided in a special relationship of reliance between the provider and the
recipient.
(53) "Receipt"
means:
(A) with1. With
respect to a copy, taking delivery; or
(B) with2. With
respect to a notice:
(i) cominga. Coming
to a person's attention; or
(ii) beingb. Being
delivered to and available at a location or system designated by agreement for
that purpose or, in the absence of an agreed location or system: (ai)
being delivered at the person's residence, or the person's place of business
through which the contract was made, or at any other place held out by the
person as a place for receipt of communications of the kind; or (bii)
in the case of an electronic notice, coming into existence in an information
processing system or at an address in that system in a form capable of being
processed by or perceived from a system of that type by a recipient, if the
recipient uses, or otherwise has designated or holds out, that place or system
for receipt of notices of the kind to be given and the sender does not know
that the notice cannot be accessed from that place.
(54) "Receive"
means to take receipt.
(55) "Record"
means information that is inscribed on a tangible medium or that is stored in
an electronic or other medium and is retrievable in perceivable form.
(56) "Release"
means an agreement by a party not to object to, or exercise any rights or
pursue any remedies to limit, the use of information or informational rights
which agreement does not require an affirmative act by the party to enable or
support the other party's use of the information or informational rights. The
term includes a waiver of informational rights.
(57) "Return,"
with respect to a record containing contractual terms that were rejected,
refers only to the computer information and means:
(A) in1. In
the case of a licensee that rejects a record regarding a single information
product transferred for a single contract fee, a right to reimbursement of the
contract fee paid from the person to which it was paid or from another person
that offers to reimburse that fee, on (i) submission of proof of purchase and
(ii) proper redelivery of the computer information and all copies within a
reasonable time after initial delivery of the information to the licensee;
(B) in2. In
the case of a licensee that rejects a record regarding an information product
provided as part of multiple information products integrated into and
transferred as a bundled whole but retaining their separate identity:
1. aa. A
right to reimbursement of any portion of the aggregate contract fee identified by
the licensor in the initial transaction as charged to the licensee for all
bundled information products which was actually paid, on (i) rejection of the
record before or during the initial use of the bundled product; (ii) proper
redelivery of all computer information products in the bundled whole and all
copies of them within a reasonable time after initial delivery of the
information to the licensee; and (iii) submission of proof of purchase; or
2. ab. A
right to reimbursement of any separate contract fee identified by the licensor
in the initial transaction as charged to the licensee for the separate
information product to which the rejected record applies, on (i) submission of
proof of purchase and (ii) proper redelivery of that computer information product
and all copies within a reasonable time after initial delivery of the
information to the licensee; or
(C) in3. In
the case of a licensor that rejects a record proposed by the licensee, a right
to proper redelivery of the computer information and all copies from the
licensee, to stop delivery or access to the information by the licensee, and to
reimbursement from the licensee of amounts paid by the licensor with respect to
the rejected record, on reimbursement to the licensee of contract fees that it
paid with respect to the rejected record, subject to recoupment and setoff.
(58) "Scope,"
with respect to terms of a license, means:
(A) the1. The
licensed copies, information, or informational rights involved;
(B) the2. The
use or access authorized, prohibited, or controlled;
(C) the3. The
geographic area, market, or location; or
(D) the4. The
duration of the license.
(59) "Seasonable,"
with respect to an act, means taken within the time agreed or, if no time is
agreed, within a reasonable time.
(60) "Send"
means, with any costs provided for and properly addressed or directed as
reasonable under the circumstances or as otherwise agreed, to deposit a record
in the mail or with a commercially reasonable carrier, to deliver a record for
transmission to or re-creation in another location or information processing
system, or to take the steps necessary to initiate transmission to or
re-creation of a record in another location or information processing system.
In addition, with respect to an electronic message, the message must be in a
form capable of being processed by or perceived from a system of the type the
recipient uses or otherwise has designated or held out as a place for the
receipt of communications of the kind sent. Receipt within the time in which it
would have arrived if properly sent, has the effect of a proper sending.
(61) "Standard
form" means a record or a group of related records containing terms
prepared for repeated use in transactions and so used in a transaction in which
there was no negotiated change of terms by individuals except to set the price,
quantity, method of payment, selection among standard options, or time or
method of delivery.
(62) "State"
means a State of the United States, the District of Columbia, Puerto Rico, the United
States Virgin Islands, or any territory or insular possession subject to the
jurisdiction of the United States.
(63) "Term,"
with respect to an agreement, means that portion of the agreement that relates
to a particular matter.
(64) "Termination"
means the ending of a contract by a party pursuant to a power created by
agreement or law otherwise than because of breach of contract.
(65) "Transfer":
(A) with1. With
respect to a contractual interest, includes an assignment of the contract, but does
not include an agreement merely to perform a contractual obligation or to
exercise contractual rights through a delegate or sublicensee; and
(B) with2. With
respect to computer information, includes a sale, license, or lease of a copy
of the computer information and a license or assignment of informational rights
in computer information.
"Trustmark"
means a tamper resistant official seal, image, or logo that signifies that
the licensor and licensee have met defined legal and industry data control and rights
requirements for (i)
informational content integrity and assurance, (ii) informational content user assurance, or (iii) informational
content use assurance.
(66) "Usage
of trade" means any practice or method of dealing that has such regularity
of observance in a place, vocation, or trade as to justify an expectation that
it will be observed with respect to the transaction in question.
(b) B. The following definitions in
other titles apply to this chapter:
(1) "Burden
of establishing" § 8.1A-201.
(2) "Document
of title" § 8.1A-201.
(3) "Financial
asset" § 8.8A-102.
(4) "Funds
transfer" § 8.4A-104.
(5) "Identification"
to the contract § 8.2-501.
(6) "Instrument"
§ 8.9A-102.
(7) "Investment
property" § 8.9A-102.
(8) "Item"
§ 8.4-104.
(9) "Letter
of credit" § 8.5A-102.
(10) "Payment
order" § 8.4A-103.
(11) "Sale" § 8.2-106.
§ 59.1-504.4. Implied warranty; informational content.
(a) Unless the warranty is disclaimed or modified, a merchant
that, in a special relationship of reliance with a licensee, collects,
compiles, processes, provides, or transmits informational content warrants to
that licensee that there is no inaccuracy in the informational content caused
by the merchant's failure to perform with reasonable care.
(b) A warranty does not arise under subsection (a) with
respect to:
(1) subjective characteristics of the informational content,
such as the aesthetics, appeal, and suitability to taste;
(2) published informational content; or
(3) a
trustmark; or
(3) (4) a person that acts as a
conduit or provides no more than editorial services in collecting, compiling,
distributing, processing, providing, or transmitting informational content that
under the circumstances can be identified as that of a third person.
(c) The warranty under this section is not subject to the
preclusion in § 59.1-501.15 (b) (1) on disclaiming obligations of diligence,
reasonableness, or care.
§ 59.1-508.1. Remedies in general.
(a) The remedies provided in this chapter are cumulative, but a
party may not recover more than once for the same loss.
(b) Except as otherwise provided in §§ 59.1-508.3 and
59.1-508.4, if a party is in breach of contract, whether or not the breach is
material, the aggrieved party has the remedies provided in the agreement or
this chapter, but the aggrieved party shall continue to comply with any
contractual use terms with respect to information or copies received from the
other party, but the contractual use terms do not apply to information or
copies properly received or obtained from another source.
(c) Rescission or a claim for rescission of the contract, or
refusal of the information, does not preclude and is not inconsistent with a
claim for damages or other remedy.
(d) A
federation operator shall be immune from suit arising from any acts or
omissions relating to provisioning a digital certificate, identity credential, or identity token issued in accordance with the
specifications of the U.S. Federal Bridge Certification Authority unless the
provisioning federation operator was grossly negligent or engaged in willful
misconduct.
(e) An
identity provider shall be immune from suit arising from any acts or omissions
relating to providing a digital certificate, identity credential, or identity token issued in accordance with the
specifications of the U.S. Federal Bridge Certification Authority unless the
issuing identity provider was grossly negligent or engaged in willful
misconduct.
(f) The
identity provider bears liability for all third-party damages arising from a commercially
reasonable reliance on the licensee's identity
credential by a third party if (i) the identity provider has failed to revoke
the identity credential after notice of loss of control from the licensee and
(ii) the identity provider has failed to terminate the identity credential
after expiration of the license.
(g) The
licensee bears liability for all third-party damages arising from a commercially
reasonable reliance on the licensee's identity credential by a third party if
(i) the licensee has failed to notify the identity provider about the loss of
control of the identity credential and (ii) the licensee has failed to notify
the identity provider of any unauthorized access to or use of the identity
credential known or suspected by the licensee.
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