UNIFORM COMPUTER INFORMATION TRANSACTIONS ACT Drafted by the NATIONAL CONFERENCE OF COMMISSIONERS ON UNIFORM STATE LAWS and by it APPROVED AND RECOMMENDED FOR ENACTMENT IN ALL THE STATES at its ANNUAL CONFERENCE MEETING IN ITS ONE-HUNDRED-AND-EIGHTH YEAR IN DENVER, COLORADO JULY 23-30, 1999 WITHOUT PREFATORY NOTE AND COMMENTS Copyright ( 1999 By NATIONAL CONFERENCE OF COMMISSIONERS ON UNIFORM STATE LAWS February 9, 2000 DRAFTING COMMITTEE ON UNIFORM COMPUTER INFORMATION TRANSACTIONS ACT CARLYLE C. RING, JR., 1401 H. Street, N.W., Suite 500, Washington, DC 20005, Chair JOHN A. CHANIN, 1020 Aoloa Place, Suite 206B, Kailua, HI 96734 STEPHEN Y. CHOW, One Beacon Street, 30th Floor, Boston, MA 02108 PATRICIA BRUMFIELD FRY, University of North Dakota, School of Law, P.O. Box 9003, Grand Forks, ND 58201 THOMAS T. GRIMSHAW, Suite 3800, 1700 Lincoln Street, Denver, CO 80203 LEON M. McCORKLE, JR., P.O. Box 387, Dublin, OH 43017-0387 THOMAS J. McCRACKEN, JR., Room 600, 134 N. LaSalle Street, Chicago, IL 60602 JAMES C. McKAY, JR., Office of Corporation Counsel, 6th Floor South, 441 4th Street, N.W., Washington, DC 20001 BRUCE MUNSON, Revisor of Statutes Bureau, Suite 800, 131 W. Wilson Street, Madison, WI 53703 LEWIS BART STONE, 52nd Floor, 200 Park Avenue, New York, NY 10166 RAYMOND T. NIMMER, University of Houston, Law Center, 4800 Calhoun, Houston, TX 77204, Reporter EX OFFICIO GENE N. LEBRUN, P.O. Box 8250, 9th Floor, 909 St. Joseph Street, Rapid City, SD 57709, President BARRY H. EVENCHICK, 8th Floor, One Gateway Center, Newark, NJ 07102, Division Chair AMERICAN BAR ASSOCIATION ADVISORS DONALD A. COHN, 14 Gale Lane, Greenville, DE 19807, Co-Advisor DANIEL S. COOLIDGE, 1000 Elm Street, Box 3701, Manchester, NH 03105, Law Practice Management Section Advisor MARY JO HOWARD DIVELY, One Oxford Centre, 40th Floor, Pittsburgh, PA 15219, Business Law Section Advisor GEORGE L. GRAFF, 30th Floor, 399 Park Avenue, New York, NY 10022, Co-Advisor LYNN P. HENDRIX, 1700 Lincoln Street, Suite 4100, Denver, CO 80203, Intellectual Property Law Section Advisor EXECUTIVE DIRECTOR FRED H. MILLER, University of Oklahoma, College of Law, 300 Timberdell Road, Norman, OK 73019, Executive Director WILLIAM J. PIERCE, 1505 Roxbury Road, Ann Arbor, MI 48104, Executive Director Emeritus Copies of this Act may be obtained from: NATIONAL CONFERENCE OF COMMISSIONERS ON UNIFORM STATE LAWS 211 E. Ontario Street, Suite 1300 Chicago, Illinois 60611 312/915-0195 UNIFORM COMPUTER INFORMATION TRANSACTIONS ACT PART 1 GENERAL PROVISIONS [SUBPART A. SHORT TITLE AND DEFINITIONS] SECTION 101. SHORT TITLE. SECTION 102. DEFINITIONS. [SUBPART B. GENERAL SCOPE AND TERMS] SECTION 103. SCOPE; EXCLUSIONS. SECTION 104. MIXED TRANSACTIONS: AGREEMENT TO OPT-IN OR OPT-OUT. SECTION 105. RELATION TO FEDERAL LAW; FUNDAMENTAL PUBLIC POLICY; TRANSACTIONS SUBJECT TO OTHER STATE LAW. SECTION 106. RULES OF CONSTRUCTION. SECTION 107. LEGAL RECOGNITION OF ELECTRONIC RECORD AND AUTHENTICATION; USE OF ELECTRONIC AGENTS. SECTION 108. PROOF AND EFFECT OF AUTHENTICATION. SECTION 109. CHOICE OF LAW. SECTION 110. CONTRACTUAL CHOICE OF FORUM. SECTION 111. UNCONSCIONABLE CONTRACT OR TERM. SECTION 112. MANIFESTING ASSENT; OPPORTUNITY TO REVIEW. SECTION 113. VARIATION BY AGREEMENT; COMMERCIAL PRACTICE. SECTION 114. SUPPLEMENTAL PRINCIPLES; GOOD FAITH; DECISION FOR COURT; REASONABLE TIME; REASON TO KNOW. PART 2 FORMATION AND TERMS [SUBPART A. FORMATION OF CONTRACT] SECTION 201. FORMAL REQUIREMENTS. SECTION 202. FORMATION IN GENERAL. SECTION 203. OFFER AND ACCEPTANCE IN GENERAL. SECTION 204. ACCEPTANCE WITH VARYING TERMS. SECTION 205. CONDITIONAL OFFER OR ACCEPTANCE. SECTION 206. OFFER AND ACCEPTANCE: ELECTRONIC AGENTS. SECTION 207. FORMATION: RELEASES OF INFORMATIONAL RIGHTS. [SUBPART B. TERMS OF RECORDS] SECTION 208. ADOPTING TERMS OF RECORDS. SECTION 209. MASS-MARKET LICENSE. SECTION 210. TERMS OF CONTRACT FORMED BY CONDUCT. SECTION 211. PRETRANSACTION DISCLOSURES IN INTERNET-TYPE TRANSACTIONS. [SUBPART C. ELECTRONIC CONTRACTS: GENERALLY] SECTION 212. EFFICACY AND COMMERCIAL REASONABLENESS OF ATTRIBUTION PROCEDURE. SECTION 213. DETERMINING ATTRIBUTION. SECTION 214. ELECTRONIC ERROR: CONSUMER DEFENSES. SECTION 215. ELECTRONIC MESSAGE: WHEN EFFECTIVE; EFFECT OF ACKNOWLEDGMENT. PART 3 CONSTRUCTION [SUBPART A. GENERAL] SECTION 301. PAROL OR EXTRINSIC EVIDENCE. SECTION 302. PRACTICAL CONSTRUCTION. SECTION 303. MODIFICATION AND RESCISSION. SECTION 304. CONTINUING CONTRACTUAL TERMS. SECTION 305. TERMS TO BE SPECIFIED. SECTION 306. PERFORMANCE UNDER OPEN TERMS. [SUBPART B. INTERPRETATION] SECTION 307. INTERPRETATION AND REQUIREMENTS FOR GRANT. SECTION 308. DURATION OF CONTRACT. SECTION 309. AGREEMENT FOR PERFORMANCE TO PARTY'S SATISFACTION. PART 4 WARRANTIES SECTION 401. WARRANTY AND OBLIGATIONS CONCERNING NONINTERFERENCE AND NONINFRINGEMENT. SECTION 402. EXPRESS WARRANTY. SECTION 403. IMPLIED WARRANTY: MERCHANTABILITY OF COMPUTER PROGRAM. SECTION 404. IMPLIED WARRANTY: INFORMATIONAL CONTENT. SECTION 405. IMPLIED WARRANTY: LICENSEE'S PURPOSE; SYSTEM INTEGRATION. SECTION 406. DISCLAIMER OR MODIFICATION OF WARRANTY. SECTION 407. MODIFICATION OF COMPUTER PROGRAM. SECTION 408. CUMULATION AND CONFLICT OF WARRANTIES. SECTION 409. THIRD-PARTY BENEFICIARIES OF WARRANTY. PART 5 TRANSFER OF INTERESTS AND RIGHTS [SUBPART A. OWNERSHIP AND TRANSFERS] SECTION 501. OWNERSHIP OF INFORMATIONAL RIGHTS. SECTION 502. TITLE TO COPY. SECTION 503. TRANSFER OF CONTRACTUAL INTEREST. SECTION 504. EFFECT OF TRANSFER OF CONTRACTUAL INTEREST. SECTION 505. PERFORMANCE BY A DELEGATE; SUBCONTRACT. SECTION 506. TRANSFER BY LICENSEE. [SUBPART B. FINANCING ARRANGEMENTS] SECTION 507. FINANCING IF FINANCIER DOES NOT BECOME LICENSEE. SECTION 508. FINANCE LICENSES. SECTION 509. FINANCING ARRANGEMENTS: OBLIGATIONS IRREVOCABLE. SECTION 510. FINANCING ARRANGEMENTS: REMEDIES OR ENFORCEMENT. SECTION 511. FINANCING ARRANGEMENTS: EFFECT ON LICENSOR'S RIGHTS. PART 6 PERFORMANCE [SUBPART A. GENERAL] SECTION 601. PERFORMANCE OF CONTRACT IN GENERAL. SECTION 602. LICENSOR'S OBLIGATIONS TO ENABLE USE. SECTION 603. SUBMISSIONS OF INFORMATION TO SATISFACTION OF PARTY. SECTION 604. IMMEDIATELY COMPLETED PERFORMANCE. SECTION 605. ELECTRONIC REGULATION OF PERFORMANCE. [SUBPART B. PERFORMANCE IN DELIVERY OF COPIES] SECTION 606. COPY: DELIVERY; TENDER OF DELIVERY. SECTION 607. COPY: PERFORMANCE RELATED TO DELIVERY; PAYMENT. SECTION 608. COPY: RIGHT TO INSPECT; PAYMENT BEFORE INSPECTION. SECTION 609. COPY: WHEN ACCEPTANCE OCCURS. SECTION 610. COPY: EFFECT OF ACCEPTANCE; BURDEN OF ESTABLISHING; NOTICE OF CLAIMS. [SUBPART C. SPECIAL TYPES OF CONTRACTS] SECTION 611. ACCESS CONTRACTS. SECTION 612. CORRECTION AND SUPPORT CONTRACTS. SECTION 613. CONTRACTS INVOLVING PUBLISHERS, DEALERS, AND END USERS. [SUBPART D. LOSS AND IMPOSSIBILITY] SECTION 614. RISK OF LOSS OF COPY. SECTION 615. EXCUSE BY FAILURE OF PRESUPPOSED CONDITIONS. [SUBPART E. TERMINATION] SECTION 616. TERMINATION: SURVIVAL OF OBLIGATIONS. SECTION 617. NOTICE OF TERMINATION. SECTION 618. TERMINATION: ENFORCEMENT. PART 7 BREACH OF CONTRACT [SUBPART A. GENERAL] SECTION 701. BREACH OF CONTRACT; MATERIAL BREACH. SECTION 702. WAIVER OF REMEDY FOR BREACH OF CONTRACT. SECTION 703. CURE OF BREACH OF CONTRACT. [SUBPART B. DEFECTIVE COPIES] SECTION 704. COPY: REFUSAL OF DEFECTIVE TENDER. SECTION 705. COPY: CONTRACT WITH PREVIOUS VESTED GRANT OF RIGHTS. SECTION 706. COPY: DUTIES UPON RIGHTFUL REFUSAL. SECTION 707. COPY: REVOCATION OF ACCEPTANCE. [SUBPART C. REPUDIATION AND ASSURANCES] SECTION 708. ADEQUATE ASSURANCE OF PERFORMANCE. SECTION 709. ANTICIPATORY REPUDIATION. SECTION 710. RETRACTION OF ANTICIPATORY REPUDIATION. PART 8 REMEDIES [SUBPART A. GENERAL] SECTION 801. REMEDIES IN GENERAL. SECTION 802. CANCELLATION. SECTION 803. CONTRACTUAL MODIFICATION OF REMEDY. SECTION 804. LIQUIDATION OF DAMAGES. SECTION 805. LIMITATION OF ACTIONS. SECTION 806. REMEDIES FOR FRAUD. [SUBPART B. DAMAGES] SECTION 807. MEASUREMENT OF DAMAGES IN GENERAL. SECTION 808. LICENSOR'S DAMAGES. SECTION 809. LICENSEE'S DAMAGES. SECTION 810. RECOUPMENT. [SUBPART C. REMEDIES RELATED TO PERFORMANCE] SECTION 811. SPECIFIC PERFORMANCE. SECTION 812. COMPLETING PERFORMANCE. SECTION 813. CONTINUING USE. SECTION 814. DISCONTINUING ACCESS. SECTION 815. RIGHT TO POSSESSION AND TO PREVENT USE. SECTION 816. LIMITATIONS ON ELECTRONIC SELF-HELP. PART 9 MISCELLANEOUS PROVISIONS SECTION 901. SEVERABILITY. SECTION 902. EFFECTIVE DATE. SECTION 903. REPEALS. SECTION 904. PREVIOUS RIGHTS AND TRANSACTIONS. UNIFORM COMPUTER INFORMATION TRANSACTIONS ACT PART 1 GENERAL PROVISIONS [SUBPART A. SHORT TITLE AND DEFINITIONS] SECTION 101. SHORT TITLE. This [Act] may be cited as the Uniform Computer Information Transactions Act. SECTION 102. DEFINITIONS. (a) In this [Act]: (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, 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 [Act]. (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: (A) to sign; or (B) with the intent to sign a record, otherwise 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 which 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 which is obtained from or through the use of a computer or which 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 Section 612. 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. Conspicuous terms include the following: (A) with respect to a person: (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; and (B) with respect to a person or an electronic agent, 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 [Act] and other applicable law. (18) "Contract fee" means the price, fee, rent, or royalty payable in a contract under this [Act] 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 Section 808(b)(1) or 809(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 by a person 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. (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 [Article 9 of the Uniform Commercial Code]. 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) 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) an instrument or other item; (C) a payment order, credit card transaction, debit card transaction, funds transfer, automated clearing house transfer, or similar wholesale or retail transfer of funds; (D) a letter of credit, document of title, financial asset, investment property, or similar asset held in a fiduciary or agency capacity; or (E) 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 [Section 2-107 of the Uniform Commercial Code]. 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. (34) "Incidental damages" resulting from breach of contract: (A) 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) does not include consequential damages or direct damages. (35) "Information" means data, text, images, sounds, mask works, 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. (39) "Knowledge", with respect to a fact, means actual knowledge of the fact. (40) "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 [Article 9 of the Uniform Commercial Code]. (41) "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 [Act] applies. A licensor is not a licensee with respect to rights reserved to it under the agreement. (42) "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 [Act] 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. (43) "Mass-market license" means a standard form used in a mass-market transaction. (44) "Mass-market transaction" means a transaction that is: (A) a consumer contract; or (B) any other transaction with an end-user licensee if: (i) 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) the licensee acquires the information or informational rights in a retail transaction under terms and in a quantity consistent with an ordinary transaction in a retail market; and (iii) the transaction is not: (I) a contract for redistribution or for public performance or public display of a copyrighted work; (II) 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; (III) a site license; or (IV) an access contract. (45) "Merchant" means a person: (A) that deals in information or informational rights of the kind involved in the transaction; (B) that by the person's occupation holds itself out as having knowledge or skill peculiar to the relevant aspect of the business practices or information involved in the transaction; or (C) to which 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 that by its occupation holds itself out as having the knowledge or skill. (46) "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. (47) "Notice" of a fact means knowledge of the fact, receipt of notification of the fact, or reason to know the fact exists. (48) "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. (49) "Party" means a person that engages in a transaction or makes an agreement under this [Act]. (50) "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. (51) "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: (A) customized for a particular recipient by one or more individuals acting as or on behalf of the licensor, using judgment or expertise; or (B) provided in a special relationship of reliance between the provider and the recipient. (52) "Receipt" means: (A) with respect to a copy, taking delivery; or (B) with respect to a notice: (i) coming to a person's attention; or (ii) 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: (I) 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 (II) 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. (53) "Receive" means to take receipt. (54) "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. (55) "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. (56) "Return", with respect to a record containing contractual terms that were rejected, refers only to the computer information and means: (A) 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) 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: (i) 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 (ii) 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) 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. (57) "Scope", with respect to terms of a license, means: (A) the licensed copies, information, or informational rights involved; (B) the use or access authorized, prohibited, or controlled; (C) the geographic area, market, or location; or (D) the duration of the license. (58) "Seasonable", with respect to an act, means taken within the time agreed or, if no time is agreed, within a reasonable time. (59) "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. (60) "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. (61) "State" means a State of the United States, the District of Columbia, Puerto Rico, the Unites States Virgin Islands, or any territory or insular possession subject to the jurisdiction of the United States. (62) "Term", with respect to an agreement, means that portion of the agreement which relates to a particular matter. (63) "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. (64) "Transfer": (A) 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) 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. (65) "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) The following definitions in [the Uniform Commercial Code (1998 Official Text)] apply to this [Act]: (1) "Burden of establishing" [Section 1-201] (2) "Document of title" [Section 1-201]. (3) "Financial asset" [Section 8-102(a)(9)]. (4) "Funds transfer" [Section 4A-104]. (5) "Identification" to the contract [Section 2-501]. (6) "Instrument" [Sections 9-105(i) (1995 Official Text) or 9-102(a)(47) (1998 Official Text)]. (7) "Investment property" [Section 9-115(f) (1995 Official Text) or 9-102(a)(49) (1998 Official Text)]. (8) "Item" [Section 4-104]. (9) "Letter of credit" [Section 5-102]. (10) "Payment order" [Section 4A-103]. (11) "Sale" [Section 2-106]. Legislative note: If your State's definition differs from the 1998 Official Text, include the definition from the Official Text in subsection (a). [SUBPART B. GENERAL SCOPE AND TERMS] SECTION 103. SCOPE; EXCLUSIONS. (a) This [Act] applies to computer information transactions. (b) Except for subject matter excluded in subsection (d) and as otherwise provided in Section 104, if a computer information transaction includes subject matter other than computer information or subject matter excluded under subsection (d), the following rules apply: (1) If a transaction includes computer information and goods, this [Act] applies to the part of the transaction involving computer information, informational rights in it, and creation or modification of it. However, if a copy of a computer program is contained in and sold or leased as part of goods, this [Act] applies to the copy and the computer program only if: (A) the goods are a computer or computer peripheral; or (B) giving the buyer or lessee of the goods access to or use of the program is ordinarily a material purpose of transactions in goods of the type sold or leased. (2) In all other cases, this [Act] applies to the entire transaction if the computer information and informational rights, or access to them, is the primary subject matter, but otherwise applies only to the part of the transaction involving computer information, informational rights in it, and creation or modification of it. (c) To the extent of a conflict between this [Act] and [Article 9 of the Uniform Commercial Code], [Article 9] governs. (d) This [Act] does not apply to: (1) a financial services transaction; (2) an agreement to create, perform or perform in, include information in, acquire, use, distribute, modify, reproduce, have access to, adapt, make available, transmit, license, or display: (A) audio or visual programming that is provided by broadcast, satellite, or cable as defined or used in the Federal Communications Act and related regulations as they existed on July 1, 1999, or by similar methods of delivering that programming; or (B) a motion picture, sound recording, musical work, or phonorecord as defined or used in Title 17 of the United States Code as of July 1, 1999, or an enhanced sound recording. (3) a compulsory license; or (4) a contract of employment of an individual, other than an individual hired as an independent contractor to create or modify computer information, unless the independent contractor is a freelancer in the news reporting industry as that term is commonly understood in that industry; (5) a contract that does not require that information be furnished as computer information or a contract in which, under the agreement, the form of the information as computer information is otherwise insignificant with respect to the primary subject matter of the part of the transaction pertaining to the information; or (6) subject matter within the scope of [Article 3, 4, 4A, 5, [6,] 7, or 8 of the Uniform Commercial Code]. (e) As used in subsection (d)(2)(B), "enhanced sound recording" means a separately identifiable product or service the dominant character of which consists of recorded sounds but which includes (i) statements or instructions whose purpose is to allow or control the perception, reproduction, or communication of those sounds or (ii) other information so long as recorded sounds constitute the dominant character of the product or service despite the inclusion of the other information. SECTION 104. MIXED TRANSACTIONS: AGREEMENT TO OPT-IN OR OPT-OUT. The parties may agree that this [Act], including contract-formation rules, governs the transaction, in whole or part, or that other law governs the transaction and this [Act] does not apply, if a material part of the subject matter to which the agreement applies is computer information or informational rights in it that are within the scope of this [Act], or is subject matter within this [Act] under Section 103(b), or is subject matter excluded by Section 103(d)(1) or (2). However, any agreement to do so is subject to the following rules: (1) An agreement that this [Act] governs a transaction does not alter the applicability of any rule or procedure that may not be varied by agreement of the parties or that may be varied only in a manner specified by the rule or procedure, including a consumer protection statute [or administrative rule]. In addition, in a mass-market transaction, the agreement does not alter the applicability of a law applicable to a copy of information in printed form. (2) An agreement that this [Act] does not govern a transaction: (A) does not alter the applicability of Section 214 or 816; and (B) in a mass-market transaction, does not alter the applicability under [this Act] of the doctrine of unconscionability or fundamental public policy or the obligation of good faith. (3) In a mass-market transaction, any term under this section which changes the extent to which this [Act] governs the transaction must be conspicuous. (4) A copy of a computer program contained in and sold or leased as part of goods and which is excluded from this [Act] by Section 103(b)(1) cannot provide the basis for an agreement under this section that this [Act] governs the transaction. SECTION 105. RELATION TO FEDERAL LAW; FUNDAMENTAL PUBLIC POLICY; TRANSACTIONS SUBJECT TO OTHER STATE LAW. (a) A provision of this [Act] which is preempted by federal law is unenforceable to the extent of the preemption. (b) If a term of a contract violates a fundamental public policy, the court may refuse to enforce the contract, enforce the remainder of the contract without the impermissible term, or limit the application of the impermissible term so as to avoid a result contrary to public policy, in each case to the extent that the interest in enforcement is clearly outweighed by a public policy against enforcement of the term. (c) Except as otherwise provided in subsection (d), if this [Act] or a term of a contract under this [Act] conflicts with a consumer protection statute [or administrative rule], the consumer protection statute [or rule] governs. (d) If a law of this State in effect on the effective date of this [Act] applies to a transaction governed by this [Act], the following rules apply: (1) A requirement that a term, waiver, notice, or disclaimer be in a writing is satisfied by a record. (2) A requirement that a record, writing, or term be signed is satisfied by an authentication. (3) A requirement that a term be conspicuous, or the like, is satisfied by a term that is conspicuous under this [Act]. (4) A requirement of consent or agreement to a term is satisfied by a manifestation of assent to the term in accordance with this [Act]. [(e) The following laws govern in the case of a conflict between this [Act] and the other law: [List laws establishing a digital signature and similar form of attribution procedure.]] Legislative Note: If there are any consumer protection laws that should be excepted from the electronic commerce rules in subsection (d), those laws should be excluded from the operation of that subsection. SECTION 106. RULES OF CONSTRUCTION. (a) This [Act] must be liberally construed and applied to promote its underlying purposes and policies to: (1) support and facilitate the realization of the full potential of computer information transactions; (2) clarify the law governing computer information transactions; (3) enable expanding commercial practice in computer information transactions by commercial usage and agreement of the parties; (4) promote uniformity of the law with respect to the subject matter of this [Act] among States that enact it; and (5) permit the continued expansion of commercial practices in the excluded transactions through custom, usage, and agreement of the parties. (b) Except as otherwise provided in Section 113(a), the use of mandatory language or the absence of a phrase such as "unless otherwise agreed" in a provision of this [Act] does not preclude the parties from varying the effect of the provision by agreement. (c) The fact that a provision of this [Act] imposes a condition for a result does not by itself mean that the absence of that condition yields a different result. (d) To be enforceable, a term need not be conspicuous, negotiated, or expressly assented or agreed to, unless this [Act] expressly so requires. SECTION 107. LEGAL RECOGNITION OF ELECTRONIC RECORD AND AUTHENTICATION; USE OF ELECTRONIC AGENTS. (a) A record or authentication may not be denied legal effect or enforceability solely because it is in electronic form. (b) This [Act] does not require that a record or authentication be generated, stored, sent, received, or otherwise processed by electronic means or in electronic form. (c) In any transaction, a person may establish requirements regarding the type of authentication or record acceptable to it. (d) A person that uses an electronic agent that it has selected for making an authentication, performance, or agreement, including manifestation of assent, is bound by the operations of the electronic agent, even if no individual was aware of or reviewed the agent's operations or the results of the operations. SECTION 108. PROOF AND EFFECT OF AUTHENTICATION. (a) Authentication may be proven in any manner, including a showing that a party made use of information or access that could have been available only if it engaged in conduct or operations that authenticated the record or term. (b) Compliance with a commercially reasonable attribution procedure agreed to or adopted by the parties or established by law for authenticating a record authenticates the record as a matter of law. SECTION 109. CHOICE OF LAW. (a) The parties in their agreement may choose the applicable law. However, the choice is not enforceable in a consumer contract to the extent it would vary a rule that may not be varied by agreement under the law of the jurisdiction whose law would apply under subsections (b) and (c) in the absence of the agreement. (b) In the absence of an enforceable agreement on choice of law, the following rules determine which jurisdiction's law governs in all respects for purposes of contract law: (1) An access contract or a contract providing for electronic delivery of a copy is governed by the law of the jurisdiction in which the licensor was located when the agreement was entered into. (2) A consumer contract that requires delivery of a copy on a tangible medium is governed by the law of the jurisdiction in which the copy is or should have been delivered to the consumer. (3) In all other cases, the contract is governed by the law of the jurisdiction having the most significant relationship to the transaction. (c) In cases governed by subsection (b), if the jurisdiction whose law governs is outside the United States, the law of that jurisdiction governs only if it provides substantially similar protections and rights to a party not located in that jurisdiction as are provided under this [Act]. Otherwise, the law of the State that has the most significant relationship to the transaction governs. (d) For purposes of this section, a party is located at its place of business if it has one place of business, at its chief executive office if it has more than one place of business, or at its place of incorporation or primary registration if it does not have a physical place of business. Otherwise, a party is located at its primary residence. SECTION 110. CONTRACTUAL CHOICE OF FORUM. (a) The parties in their agreement may choose an exclusive judicial forum unless the choice is unreasonable and unjust. (b) A judicial forum specified in an agreement is not exclusive unless the agreement expressly so provides. SECTION 111. UNCONSCIONABLE CONTRACT OR TERM. (a) If a court as a matter of law finds a contract or a term thereof to have been unconscionable at the time it was made, the court may refuse to enforce the contract, enforce the remainder of the contract without the unconscionable term, or limit the application of the unconscionable term so as to avoid an unconscionable result. (b) If it is claimed or appears to the court that a contract or term thereof may be unconscionable, the parties must be afforded a reasonable opportunity to present evidence as to its commercial setting, purpose, and effect to aid the court in making the determination. SECTION 112. MANIFESTING ASSENT; OPPORTUNITY TO REVIEW. (a) A person manifests assent to a record or term if the person, acting with knowledge of, or after having an opportunity to review the record or term or a copy of it: (1) authenticates the record or term with intent to adopt or accept it; or (2) intentionally engages in conduct or makes statements with reason to know that the other party or its electronic agent may infer from the conduct or statement that the person assents to the record or term. (b) An electronic agent manifests assent to a record or term if, after having an opportunity to review it, the electronic agent: (1) authenticates the record or term; or (2) engages in operations that in the circumstances indicate acceptance of the record or term. (c) If this [Act] or other law requires assent to a specific term, a manifestation of assent must relate specifically to the term. (d) Conduct or operations manifesting assent may be proved in any manner, including a showing that a person or an electronic agent obtained or used the information or informational rights and that a procedure existed by which a person or an electronic agent must have engaged in the conduct or operations in order to do so. Proof of compliance with subsection (a)(2) is sufficient if there is conduct that assents and subsequent conduct that reaffirms assent by electronic means. (e) With respect to an opportunity to review, the following rules apply: (1) A person has an opportunity to review a record or term only if it is made available in a manner that ought to call it to the attention of a reasonable person and permit review. (2) An electronic agent has an opportunity to review a record or term only if it is made available in manner that would enable a reasonably configured electronic agent to react to the record or term. (3) If a record or term is available for review only after a person becomes obligated to pay or begins its performance, the person has an opportunity to review only if it has a right to a return if it rejects the record. However, a right to a return is not required if: (A) the record proposes a modification of contract or provides particulars of performance under Section 305; or (B) the primary performance is other than delivery or acceptance of a copy, the agreement is not a mass-market transaction, and the parties at the time of contracting had reason to know that a record or term would be presented after performance, use, or access to the information began. (4) The right to a return under paragraph (3) may arise by law or by agreement. (f) The effect of provisions of this section may be modified by an agreement setting out standards applicable to future transactions between the parties. SECTION 113. VARIATION BY AGREEMENT; COMMERCIAL PRACTICE. (a) The effect of any provision of this [Act], including an allocation of risk or imposition of a burden, may be varied by agreement of the parties. However, the following rules apply: (1) Obligations of good faith, diligence, reasonableness, and care imposed by this [Act] may not be disclaimed by agreement, but the parties by agreement may determine the standards by which the performance of the obligation is to be measured if the standards are not manifestly unreasonable. (2) The limitations on enforceability imposed by unconscionability under Section 111 and fundamental public policy under Section 105(b) may not be varied by agreement. (3) Limitations on enforceability of, or agreement to, a contract, term, or right expressly stated in the sections listed in the following subparagraphs may not be varied by agreement except to the extent provided in each section: (A) the limitations on agreed choice of law in Section 109(a); (B) the limitations on agreed choice of forum in Section 110; (C) the requirements for manifesting assent and opportunity for review in Section 112; (D) the limitations on enforceability in Section 201; (E) the limitations on a mass-market license in Section 209; (F) the consumer defense arising from an electronic error in Section 214; (G) the requirements for an enforceable term in Sections 303(b), 307(g), 406(b) and (c), and 804(a); (H) the limitations on a financier in Sections 507 through 511; (I) the restrictions on altering the period of limitations in Section 805(a) and (b); and (J) the limitations on self-help repossession in Sections 815(b) and 816. (b) Any usage of trade of which the parties are or should be aware and any course of dealing or course of performance between the parties are relevant to determining the existence or meaning of an agreement. SECTION 114. SUPPLEMENTAL PRINCIPLES; GOOD FAITH; DECISION FOR COURT; REASONABLE TIME; REASON TO KNOW. (a) Unless displaced by this [Act], principles of law and equity, including the law merchant and the common law of this State relative to capacity to contract, principal and agent, estoppel, fraud, misrepresentation, duress, coercion, mistake, and other validating or invalidating cause, supplement this [Act]. Among the laws supplementing and not displaced by this [Act] are trade secret laws and unfair competition laws. (b) Every contract or duty within the scope of this [Act] imposes an obligation of good faith in its performance or enforcement. (c) Whether a term is conspicuous or is unenforceable under Section 105(a) or (b), 111, or 209(a) and whether an attribution procedure is commercially reasonable or effective under Section 108, 212, or 213 are questions to be determined by the court. (d) Whether an agreement has legal consequences is determined by this [Act]. (e) Whenever this [Act] requires any action to be taken within a reasonable time, the following rules apply: (1) What is a reasonable time for taking the action depends on the nature, purpose, and circumstances of the action. (2) Any time that is not manifestly unreasonable may be fixed by agreement. (f) A person has reason to know a fact if the person has knowledge of the fact or, from all the facts and circumstances known to the person without investigation, the person should be aware that the fact exists. PART 2 FORMATION AND TERMS [SUBPART A. FORMATION OF CONTRACT] SECTION 201. FORMAL REQUIREMENTS. (a) Except as otherwise provided in this section, a contract requiring payment of a contract fee of $5,000 or more is not enforceable by way of action or defense unless: (1) the party against which enforcement is sought authenticated a record sufficient to indicate that a contract has been formed and which reasonably identifies the copy or subject matter to which the contract refers; or (2) the agreement is a license for an agreed duration of one year or less or which may be terminated at will by the party against which the contract is asserted. (b) A record is sufficient under subsection (a) even if it omits or incorrectly states a term, but the contract is not enforceable under that subsection beyond the number of copies or subject matter shown in the record. (c) A contract that does not satisfy the requirements of subsection (a) is nevertheless enforceable under that subsection if: (1) a performance was tendered or the information was made available by one party and the tender was accepted or the information accessed by the other; or (2) the party against which enforcement is sought admits in court, by pleading or by testimony or otherwise under oath, facts sufficient to indicate a contract has been made, but the agreement is not enforceable under this paragraph beyond the number of copies or the subject matter admitted. (d) Between merchants, if, within a reasonable time, a record in confirmation of the contract and sufficient against the sender is received and the party receiving it has reason to know its contents, the record satisfies subsection (a) against the party receiving it unless notice of objection to its contents is given in a record within 10 days after the confirming record is received. (e) An agreement that the requirements of this section need not be satisfied as to future transactions is effective if evidenced in a record authenticated by the person against which enforcement is sought. (f) A transaction within the scope of this [Act] is not subject to a statute of frauds contained in another law of this State. SECTION 202. FORMATION IN GENERAL. (a) A contract may be formed in any manner sufficient to show agreement, including offer and acceptance or conduct of both parties or operations of electronic agents which recognize the existence of a contract. (b) If the parties so intend, an agreement sufficient to constitute a contract may be found even if the time of its making is undetermined, one or more terms are left open or to be agreed on, the records of the parties do not otherwise establish a contract, or one party reserves the right to modify terms. (c) Even if one or more terms are left open or to be agreed upon, a contract does not fail for indefiniteness if the parties intended to make a contract and there is a reasonably certain basis for giving an appropriate remedy. (d) In the absence of conduct or performance by both parties to the contrary, a contract is not formed if there is a material disagreement about a material term, including a term concerning scope. (e) If a term is to be adopted by later agreement and the parties intend not to be bound unless the term is so adopted, a contract is not formed if the parties do not agree to the term. In that case, each party shall deliver to the other party, or with the consent of the other party destroy, all copies of information, access materials, and other materials received or made, and each party is entitled to a return with respect to any contract fee paid for which performance has not been received, has not been accepted, or has been redelivered without any benefit being retained. The parties remain bound by any restriction in a contractual use term with respect to information or copies received or made from copies received pursuant to the agreement, but the contractual use term does not apply to information or copies properly received or obtained from another source. SECTION 203. OFFER AND ACCEPTANCE IN GENERAL. Unless otherwise unambiguously indicated by the language or the circumstances: (1) An offer to make a contract invites acceptance in any manner and by any medium reasonable under the circumstances. (2) An order or other offer to acquire a copy for prompt or current delivery invites acceptance by either a prompt promise to ship or a prompt or current shipment of a conforming or nonconforming copy. However, a shipment of a nonconforming copy is not an acceptance if the licensor seasonably notifies the licensee that the shipment is offered only as an accommodation to the licensee. (3) If the beginning of a requested performance is a reasonable mode of acceptance, an offeror that is not notified of acceptance or performance within a reasonable time may treat the offer as having lapsed before acceptance. (4) If an offer in an electronic message evokes an electronic message accepting the offer, a contract is formed: (A) when an electronic acceptance is received; or (B) if the response consists of beginning performance, full performance, or giving access to information, when the performance is received or the access is enabled and necessary access materials are received. SECTION 204. ACCEPTANCE WITH VARYING TERMS. (a) In this section, an acceptance materially alters an offer if it contains a term that materially conflicts with or varies a term of the offer or that adds a material term not contained in the offer. (b) Except as otherwise provided in Section 205, a definite and seasonable expression of acceptance operates as an acceptance, even if the acceptance contains terms that vary from the terms of the offer, unless the acceptance materially alters the offer. (c) If an acceptance materially alters the offer, the following rules apply: (1) A contract is not formed unless: (A) a party agrees, such as by manifesting assent, to the other party's offer or acceptance; or (B) all the other circumstances, including the conduct of the parties, establish a contract. (2) If a contract is formed by the conduct of both parties, the terms of the contract are determined under Section 210. (d) If an acceptance varies from but does not materially alter the offer, a contract is formed based on the terms of the offer. In addition, the following rules apply: (1) Terms in the acceptance which conflict with terms in the offer are not part of the contract. (2) An additional nonmaterial term in the acceptance is a proposal for an additional term. Between merchants, the proposed additional term becomes part of the contract unless the offeror gives notice of objection before, or within a reasonable time after, it receives the proposed terms. SECTION 205. CONDITIONAL OFFER OR ACCEPTANCE. (a) In this section, an offer or acceptance is conditional if it is conditioned on agreement by the other party to all the terms of the offer or acceptance. (b) Except as otherwise provided in subsection (c), a conditional offer or acceptance precludes formation of a contract unless the other party agrees to its terms, such as by manifesting assent. (c) If an offer and acceptance are in standard forms and at least one form is conditional, the following rules apply: (1) Conditional language in a standard term precludes formation of a contract only if the actions of the party proposing the form are consistent with the conditional language, such as by refusing to perform, refusing to permit performance, or refusing to accept the benefits of the agreement, until its proposed terms are accepted. (2) A party that agrees, such as by manifesting assent, to a conditional offer that is effective under paragraph (1) adopts the terms of the offer under Section 208 or 209, except a term that conflicts with an expressly agreed term regarding price or quantity. SECTION 206. OFFER AND ACCEPTANCE: ELECTRONIC AGENTS. (a) A contract may be formed by the interaction of electronic agents. If the interaction results in the electronic agents' engaging in operations that under the circumstances indicate acceptance of an offer, a contract is formed, but a court may grant appropriate relief if the operations resulted from fraud, electronic mistake, or the like. (b) A contract may be formed by the interaction of an electronic agent and an individual acting on the individual's own behalf or for another person. A contract is formed if the individual takes an action or makes a statement that the individual can refuse to take or say and that the individual has reason to know will: (1) cause the electronic agent to perform, provide benefits, or allow the use or access that is the subject of the contract, or send instructions to do so; or (2) indicate acceptance, regardless of other expressions or actions by the individual to which the individual has reason to know the electronic agent cannot react. (c) The terms of a contract formed under subsection (b) are determined under Section 208 or 209 but do not include a term provided by the individual if the individual had reason to know that the electronic agent could not react to the term. SECTION 207. FORMATION: RELEASES OF INFORMATIONAL RIGHTS. (a) A release is effective without consideration if it is: (1) in a record to which the releasing party agrees, such as by manifesting assent, and which identifies the informational rights released; or (2) enforceable under estoppel, implied license, or other law. (b) A release continues for the duration of the informational rights released if the release does not specify its duration and does not require affirmative performance after the grant of the release by: (1) the party granting the release; or (2) the party receiving the release, except for relatively insignificant acts. (c) In cases not governed by subsection (b), the duration of a release is governed by Section 308. [SUBPART B. TERMS OF RECORDS] SECTION 208. ADOPTING TERMS OF RECORDS. Except as otherwise provided in Section 209, the following rules apply: (1) A party adopts the terms of a record, including a standard form, as the terms of the contract if the party agrees to the record, such as by manifesting assent. (2) The terms of a record may be adopted pursuant to paragraph (1) after beginning performance or use if the parties had reason to know that their agreement would be represented in whole or part by a later record to be agreed on and there would not be an opportunity to review the record or a copy of it before performance or use begins. If the parties fail to agree to the later terms and did not intend to form a contract unless they so agreed, Section 202(e) applies. (3) If a party adopts the terms of a record, the terms become part of the contract without regard to the party's knowledge or understanding of individual terms in the record, except for a term that is unenforceable because it fails to satisfy another requirement of this [Act]. SECTION 209. MASS-MARKET LICENSE. (a) A party adopts the terms of a mass-market license for purposes of Section 208 only if the party agrees to the license, such as by manifesting assent, before or during the party's initial performance or use of or access to the information. A term is not part of the license if: (1) the term is unconscionable or is unenforceable under Section 105(a) or (b); or (2) subject to Section 301, the term conflicts with a term to which the parties to the license have expressly agreed. (b) If a mass-market license or a copy of the license is not available in a manner permitting an opportunity to review by the licensee before the licensee becomes obligated to pay and the licensee does not agree, such as by manifesting assent, to the license after having an opportunity to review, the licensee is entitled to a return under Section 112 and, in addition, to: (1) reimbursement of any reasonable expenses incurred in complying with the licensor's instructions for returning or destroying the computer information or, in the absence of instructions, expenses incurred for return postage or similar reasonable expense in returning the computer information; and (2) compensation for any reasonable and foreseeable costs of restoring the licensee's information processing system to reverse changes in the system caused by the installation, if: (A) the installation occurs because information must be installed to enable review of the license; and (B) the installation alters the system or information in it but does not restore the system or information after removal of the installed information because the licensee rejected the license. (c) In a mass-market transaction, if the licensor does not have an opportunity to review a record containing proposed terms from the licensee before the licensor delivers or becomes obligated to deliver the information, and if the licensor does not agree, such as by manifesting assent, to those terms after having that opportunity, the licensor is entitled to a return. SECTION 210. TERMS OF CONTRACT FORMED BY CONDUCT. (a) Except as otherwise provided in subsection (b) and subject to Section 301, if a contract is formed by conduct of the parties, the terms of the contract are determined by consideration of the terms and conditions to which the parties expressly agreed, course of performance, course of dealing, usage of trade, the nature of the parties' conduct, the records exchanged, the information or informational rights involved, and all other relevant circumstances. If a court cannot determine the terms of the contract from the foregoing factors, the supplementary principles of this [Act] apply. (b) This section does not apply if the parties authenticate a record of the contract or a party agrees, such as by manifesting assent, to the record containing the terms of the other party. SECTION 211. PRETRANSACTION DISCLOSURES IN INTERNET-TYPE TRANSACTIONS. This section applies to a licensor that makes its computer information available to a licensee by electronic means from its Internet or similar electronic site. In such a case, the licensor affords an opportunity to review the terms of a standard form license which opportunity satisfies Section 112(e) with respect to a licensee that acquires the information from that site, if the licensor: (1) makes the standard terms of the license readily available for review by the licensee before the information is delivered or the licensee becomes obligated to pay, whichever occurs first, by: (A) displaying prominently and in close proximity to a description of the computer information, or to instructions or steps for acquiring it, the standard terms or a reference to an electronic location from which they can be readily obtained; or (B) disclosing the availability of the standard terms in a prominent place on the site from which the computer information is offered and promptly furnishing a copy of the standard terms on request before the transfer of the computer information; and (2) does not take affirmative acts to prevent printing or storage of the standard terms for archival or review purposes by the licensee. [SUBPART C. ELECTRONIC CONTRACTS: GENERALLY] SECTION 212. EFFICACY AND COMMERCIAL REASONABLENESS OF ATTRIBUTION PROCEDURE. The efficacy, including the commercial reasonableness, of an attribution procedure is determined by the court. In making this determination, the following rules apply: (1) An attribution procedure established by law is effective for transactions within the coverage of the statute or rule. (2) Except as otherwise provided in paragraph (1), commercial reasonableness and effectiveness is determined in light of the purposes of the procedure and the commercial circumstances at the time the parties agreed to or adopted the procedure. (3) An attribution procedure may use any security device or method that is commercially reasonable under the circumstances. SECTION 213. DETERMINING ATTRIBUTION. (a) An electronic authentication, display, message, record, or performance is attributed to a person if it was the act of the person or its electronic agent, or if the person is bound by it under agency or other law. The party relying on attribution of an electronic authentication, display, message, record, or performance to another person has the burden of establishing attribution. (b) The act of a person may be shown in any manner, including a showing of the efficacy of an attribution procedure that was agreed to or adopted by the parties or established by law. (c) The effect of an electronic act attributed to a person under subsection (a) is determined from the context at the time of its creation, execution, or adoption, including the parties' agreement, if any, or otherwise as provided by law. (d) If an attribution procedure exists to detect errors or changes in an electronic authentication, display, message, record, or performance, and was agreed to or adopted by the parties or established by law, and one party conformed to the procedure but the other party did not, and the nonconforming party would have detected the change or error had that party also conformed, the effect of noncompliance is determined by the agreement but, in the absence of agreement, the conforming party may avoid the effect of the error or change. SECTION 214. ELECTRONIC ERROR: CONSUMER DEFENSES. (a) In this section, "electronic error" means an error in an electronic message created by a consumer using an information processing system if a reasonable method to detect and correct or avoid the error was not provided. (b) In an automated transaction, a consumer is not bound by an electronic message that the consumer did not intend and which was caused by an electronic error, if the consumer: (1) promptly on learning of the error: (A) notifies the other party of the error; and (B) causes delivery to the other party or, pursuant to reasonable instructions received from the other party, delivers to another person or destroys all copies of the information; and (2) has not used, or received any benefit or value from, the information or caused the information or benefit to be made available to a third party. (c) If subsection (b) does not apply, the effect of an electronic error is determined by other law. SECTION 215. ELECTRONIC MESSAGE: WHEN EFFECTIVE; EFFECT OF ACKNOWLEDGMENT. (a) Receipt of an electronic message is effective when received even if no individual is aware of its receipt. (b) Receipt of an electronic acknowledgment of an electronic message establishes that the message was received but by itself does not establish that the content sent corresponds to the content received. PART 3 CONSTRUCTION [SUBPART A. GENERAL] SECTION 301. PAROL OR EXTRINSIC EVIDENCE. Terms with respect to which confirmatory records of the parties agree or which are otherwise set forth in a record intended by the parties as a final expression of their agreement with respect to terms included therein may not be contradicted by evidence of any previous agreement or of a contemporaneous oral agreement but may be explained or supplemented by: (1) course of performance, course of dealing, or usage of trade; and (2) evidence of consistent additional terms, unless the court finds the record to have been intended as a complete and exclusive statement of the terms of the agreement. SECTION 302. PRACTICAL CONSTRUCTION. (a) The express terms of an agreement and any course of performance, course of dealing, or usage of trade must be construed whenever reasonable as consistent with each other. However, if that construction is unreasonable: (1) express terms prevail over course of performance, course of dealing, and usage of trade; (2) course of performance prevails over course of dealing and usage of trade; and (3) course of dealing prevails over usage of trade. (b) An applicable usage of trade in the place where any part of performance is to occur must be used in interpreting the agreement as to that part of the performance. (c) Evidence of a relevant course of performance, course of dealing, or usage of trade offered by one party in a proceeding is not admissible unless and until the party offering the evidence has given the other party notice that the court finds sufficient to prevent unfair surprise. (d) The existence and scope of a usage of trade must be proved as facts. SECTION 303. MODIFICATION AND RESCISSION. (a) An agreement modifying a contract subject to this [Act] needs no consideration to be binding. (b) An authenticated record that precludes modification or rescission except by an authenticated record may not otherwise be modified or rescinded. In a standard form supplied by a merchant to a consumer, a term requiring an authenticated record for modification of the contract is not enforceable unless the consumer manifests assent to the term. (c) A modification of a contract and the contract as modified must satisfy the requirements of Sections 201(a) and 307(g) if the contract as modified is within those provisions. (d) An attempt at modification or rescission which does not satisfy subsection (b) or (c) may operate as a waiver if Section 702 is satisfied. SECTION 304. CONTINUING CONTRACTUAL TERMS. (a) Terms of an agreement involving successive performances apply to all performances, even if the terms are not displayed or otherwise brought to the attention of a party with respect to each successive performance, unless the terms are modified in accordance with this [Act] or the contract. (b) If a contract provides that terms may be changed as to future performances by compliance with a described procedure, a change proposed in good faith pursuant to that procedure becomes part of the contract if the procedure: (1) reasonably notifies the other party of the change; and (2) in a mass-market transaction, permits the other party to terminate the contract as to future performance if the change alters a material term and the party in good faith determines that the modification is unacceptable. (c) The parties by agreement may determine the standards for reasonable notice unless the agreed standards are manifestly unreasonable in light of the commercial circumstances. (d) The enforceability of changes made pursuant to a procedure that does not comply with subsection (b) is determined by the other provisions of this [Act] or other law. SECTION 305. TERMS TO BE SPECIFIED. An agreement that is otherwise sufficiently definite to be a contract is not invalid because it leaves particulars of performance to be specified by one of the parties. If particulars of performance are to be specified by a party, the following rules apply: (1) Specification must be made in good faith and within limits set by commercial reasonableness. (2) If a specification materially affects the other party's performance but is not seasonably made, the other party: (A) is excused for any resulting delay in its performance; and (B) may perform, suspend performance, or treat the failure to specify as a breach of contract. SECTION 306. PERFORMANCE UNDER OPEN TERMS. A performance obligation of a party that cannot be determined from the agreement or from other provisions of this [Act] requires the party to perform in a manner and in a time that is reasonable in light of the commercial circumstances existing at the time of agreement. [SUBPART B. INTERPRETATION] SECTION 307. INTERPRETATION AND REQUIREMENTS FOR GRANT. (a) A license grants: (1) the contractual rights that are expressly described; and (2) a contractual right to use any informational rights within the licensor's control at the time of contracting which are necessary in the ordinary course to exercise the expressly described rights. (b) If a license expressly limits use of the information or informational rights, use in any other manner is a breach of contract. In all other cases, a license contains an implied limitation that the licensee will not use the information or informational rights otherwise than as described in subsection (a). However, use inconsistent with this implied limitation is not a breach if it is permitted under applicable law in the absence of the implied limitation. (c) An agreement that does not specify the number of permitted users permits a number of users which is reasonable in light of the informational rights involved and the commercial circumstances existing at the time of the agreement. (d) A party is not entitled to any rights in new versions of, or improvements or modifications to, information made by the other party. A licensor's agreement to provide new versions, improvements, or modifications requires that the licensor provide them as developed and made generally commercially available from time to time by the licensor. (e) Neither party is entitled to receive copies of source code, schematics, master copy, design material, or other information used by the other party in creating, developing, or implementing the information. (f) Terms concerning scope must be construed under ordinary principles of contract interpretation in light of the informational rights and the commercial context. In addition, the following rules apply: (1) A grant of "all possible rights and for all media" or "all rights and for all media now known or later developed", or a grant in similar terms, includes all rights then existing or later created by law and all uses, media, and methods of distribution or exhibition, whether then existing or developed in the future and whether or not anticipated at the time of the grant. (2) A grant of an "exclusive license", or a grant in similar terms, means that: (A) for the duration of the license, the licensor will not exercise, and will not grant to any other person, rights in the same information or informational rights within the scope of the exclusive grant; and (B) the licensor affirms that it has not previously granted those rights in a contract in effect when the licensee's rights may be exercised. (g) The rules in this section may be varied only by a record that is sufficient to indicate that a contract has been made and which is: (1) authenticated by the party against which enforcement is sought; or (2) prepared and delivered by one party and adopted by the other under Section 208 or 209. SECTION 308. DURATION OF CONTRACT. If an agreement does not specify its duration, to the extent allowed by other law, the following rules apply: (1) Except as otherwise provided in paragraph (2), the agreement is enforceable for a time reasonable in light of the licensed subject matter and commercial circumstances but may be terminated as to future performances at will by either party during that time on giving seasonable notice to the other party. (2) The duration of contractual rights to use licensed subject matter is a time reasonable in light of the licensed informational rights and the commercial circumstances. However, subject to cancellation for breach of contract, the duration of the license is perpetual as to the contractual rights and contractual use terms if: (A) the license is of a computer program that does not include source code and the license: (i) transfers ownership of a copy; or (ii) delivers a copy for a contract fee the total amount of which is fixed at or before the time of delivery of the copy; or (B) the license expressly grants the right to incorporate or use the licensed information or informational rights with information or informational rights from other sources in a combined work for public distribution or public performance. SECTION 309. AGREEMENT FOR PERFORMANCE TO PARTY'S SATISFACTION. (a) Except as otherwise provided in subsection (b), an agreement that provides that the performance of one party is to be to the satisfaction or approval of the other party requires performance sufficient to satisfy a reasonable person in the position of the party that must be satisfied. (b) Performance must be to the subjective satisfaction of the other party if: (1) the agreement expressly so provides, such as by stating that approval is in the "sole discretion" of the party, or words of similar import; or (2) the agreement is for informational content to be evaluated in reference to subjective characteristics such as aesthetics, appeal, suitability to taste, or subjective quality. PART 4 WARRANTIES SECTION 401. WARRANTY AND OBLIGATIONS CONCERNING NONINTERFERENCE AND NONINFRINGEMENT. (a) A licensor of information that is a merchant regularly dealing in information of the kind warrants that the information will be delivered free of the rightful claim of any third person by way of infringement or misappropriation, but a licensee that furnishes detailed specifications to the licensor and the method required for meeting the specifications holds the licensor harmless against any such claim that arises out of compliance with either the required specification or the required method except for a claim that results from the failure of the licensor to adopt, or notify the licensee of, a noninfringing alternative of which the licensor had reason to know. (b) A licensor warrants: (1) for the duration of the license, that no person holds a rightful claim to, or interest in, the information which arose from an act or omission of the licensor, other than a claim by way of infringement or misappropriation, which will interfere with the licensee's enjoyment of its interest; and (2) as to rights granted exclusively to the licensee, that within the scope of the license: (A) to the knowledge of the licensor, any licensed patent rights are valid and exclusive to the extent exclusivity and validity are recognized by the law under which the patent rights were created; and (B) in all other cases, the licensed informational rights are valid and exclusive for the information as a whole to the extent exclusivity and validity are recognized by the law applicable to the licensed rights in a jurisdiction to which the license applies. (c) The warranties in this section are subject to the following rules: (1) If the licensed informational rights are subject to a right of privileged use, collective administration, or compulsory licensing, the warranty is not made with respect to those rights. (2) The obligations under subsections (a) and (b)(2) apply solely to informational rights arising under the laws of the United States or a State, unless the contract expressly provides that the warranty obligations extend to rights under the laws of other countries. Language is sufficient for this purpose if it states "The licensor warrants `exclusivity' `noninfringement' `in specified countries' `worldwide'", or words of similar import. In that case, the warranty extends to the specified country or, in the case of a reference to "worldwide" or the like, to all countries within the description, but only to the extent the rights are recognized under a treaty or international convention to which the country and the United States are signatories. (3) The warranties under subsections (a) and (b)(2) are not made by a license that merely permits use, or convenants not to claim infringement because of the use, of rights under a licensed patent. (d) Except as otherwise provided in subsection (e), a warranty under this section may be disclaimed or modified only by specific language or by circumstances that give the licensee reason to know that the licensor does not warrant that competing claims do not exist or that the licensor purports to grant only the rights it may have. In an automated transaction, language is sufficient if it is conspicuous. Otherwise, language in a record is sufficient if it states "There is no warranty against interference with your enjoyment of the information or against infringement", or words of similar import. (e) Between merchants, a grant of a "quitclaim", or a grant in similar terms, grants the information or informational rights without an implied warranty as to infringement or misappropriation or as to the rights actually possessed or transferred by the licensor. SECTION 402. EXPRESS WARRANTY. (a) Subject to subsection (c), an express warranty by a licensor is created as follows: (1) An affirmation of fact or promise made by the licensor to its licensee, including by advertising, which relates to the information and becomes part of the basis of the bargain creates an express warranty that the information to be furnished under the agreement will conform to the affirmation or promise. (2) Any description of the information which is made part of the basis of the bargain creates an express warranty that the information will conform to the description. (3) Any sample, model, or demonstration of a final product which is made part of the basis of the bargain creates an express warranty that the performance of the information will reasonably conform to the performance of the sample, model, or demonstration, taking into account differences that would appear to a reasonable person in the position of the licensee between the sample, model, or demonstration and the information as it will be used. (b) It is not necessary to the creation of an express warranty that the licensor use formal words, such as "warranty" or "guaranty", or state a specific intention to make a warranty. However, an express warranty is not created by: (1) an affirmation or prediction merely of the value of the information or informational rights; (2) a display or description of a portion of the information to illustrate the aesthetics, appeal, suitability to taste, subjective quality, or the like of informational content; or (3) a statement purporting to be merely opinion or commendation of the information or informational rights. (c) An express warranty or similar express contractual obligation, if any, exists with respect to published informational content covered by this [Act] to the same extent that it would exist if the published informational content had been published in a form that placed it outside this [Act]. However, if the warranty or similar express contractual obligation is breached, the remedies of the aggrieved party are those under this [Act] and the agreement. SECTION 403. IMPLIED WARRANTY: MERCHANTABILITY OF COMPUTER PROGRAM. (a) Unless the warranty is disclaimed or modified, a licensor that is a merchant with respect to computer programs of the kind warrants: (1) to the end user that the computer program is fit for the ordinary purposes for which such computer programs are used; (2) to the distributor that: (A) the program is adequately packaged and labeled as the agreement requires; and (B) in the case of multiple copies, the copies are within the variations permitted by the agreement, of even kind, quality, and quantity within each unit and among all units involved; and (3) that the program conforms to any promises or affirmations of fact made on the container or label. (b) Unless disclaimed or modified, other implied warranties with respect to computer programs may arise from course of dealing or usage of trade. (c) No warranty is created under this section with respect to informational content, but an implied warranty may arise under Section 404. SECTION 404. 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) published informational content; or (2) 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 Section 113(a) (1) on disclaiming obligations of diligence, reasonableness, or care. SECTION 405. IMPLIED WARRANTY: LICENSEE'S PURPOSE; SYSTEM INTEGRATION. (a) Unless the warranty is disclaimed or modified, if a licensor at the time of contracting has reason to know any particular purpose for which the computer information is required and that the licensee is relying on the licensor's skill or judgment to select, develop, or furnish suitable information, the following rules apply: (1) Except as otherwise provided in paragraph (2), there is an implied warranty that the information is fit for that purpose. (2) If from all the circumstances it appears that the licensor was to be paid for the amount of its time or effort regardless of the fitness of the resulting information, the warranty under paragraph (1) is that the information will not fail to achieve the licensee's particular purpose as a result of the licensor's lack of reasonable effort. (b) There is no warranty under subsection (a) with regard to: (1) the aesthetics, appeal, suitability to taste, or subjective quality of informational content; or (2) published informational content, but there may be a warranty with regard to the licensor's selection among published informational content from different providers if the selection is made by an individual acting as or on behalf of the licensor. (c) If an agreement requires a licensor to provide or select a system consisting of computer programs and goods, and the licensor has reason to know that the licensee is relying on the skill or judgment of the licensor to select the components of the system, there is an implied warranty that the components provided or selected will function together as a system. (d) The warranty under this section is not subject to the preclusion in Section 113(a)(1) on disclaiming diligence, reasonableness, or care. SECTION 406. DISCLAIMER OR MODIFICATION OF WARRANTY. (a) Words or conduct relevant to the creation of an express warranty and words or conduct tending to disclaim or modify an express warranty must be construed wherever reasonable as consistent with each other. Subject to Section 301 with regard to parol or extrinsic evidence, the disclaimer or modification is inoperative to the extent that such construction is unreasonable. (b) Except as otherwise provided in subsections (c), (d), and (e), to disclaim or modify an implied warranty or any part of it, but not the warranty in Section 401, the following rules apply: (1) Except as otherwise provided in this subsection: (A) To disclaim or modify the implied warranty arising under Section 403, language must mention "merchantability" or "quality" or use words of similar import and, if in a record, must be conspicuous. (B) To disclaim or modify the implied warranty arising under Section 404, language in a record must mention "accuracy" or use words of similar import. (2) Language to disclaim or modify the implied warranty arising under Section 405 must be in a record and be conspicuous. It is sufficient to state "There is no warranty that this information, our efforts, or the system will fulfill any of your particular purposes or needs", or words of similar import. (3) Language in a record is sufficient to disclaim all implied warranties if it individually disclaims each implied warranty or, except for the warranty in Section 401, if it is conspicuous and states "Except for express warranties stated in this contract, if any, this `information' `computer program' is provided with all faults, and the entire risk as to satisfactory quality, performance, accuracy, and effort is with the user", or words of similar import. (4) A disclaimer or modification sufficient under [Article 2 or 2A of the Uniform Commercial Code] to disclaim or modify an implied warranty of merchantability is sufficient to disclaim or modify the warranties under Sections 403 and 404. A disclaimer or modification sufficient under [Article 2 or 2A of the Uniform Commercial Code] to disclaim or modify an implied warranty of fitness for a particular purpose is sufficient to disclaim or modify the warranties under Section 405. (c) Unless the circumstances indicate otherwise, all implied warranties, but not the warranty under Section 401, are disclaimed by expressions like "as is" or "with all faults" or other language that in common understanding calls the licensee's attention to the disclaimer of warranties and makes plain that there are no implied warranties. (d) If a licensee before entering into a contract has examined the information or the sample or model as fully as it desired or has refused to examine the information, there is no implied warranty with regard to defects that an examination ought in the circumstances to have revealed to the licensee. (e) An implied warranty may also be disclaimed or modified by course of performance, course of dealing, or usage of trade. (f) If a contract requires ongoing performance or a series of performances by the licensor, language of disclaimer or modification which complies with this section is effective with respect to all performances under the contract. (g) Remedies for breach of warranty may be limited in accordance with this [Act] with respect to liquidation or limitation of damages and contractual modification of remedy. SECTION 407. MODIFICATION OF COMPUTER PROGRAM. A licensee that modifies a computer program, other than by using a capability of the program intended for that purpose in the ordinary course, does not invalidate any warranty regarding performance of an unmodified copy but does invalidate any warranties, express or implied, regarding performance of the modified copy. A modification occurs if a licensee alters code in, deletes code from, or adds code to the computer program. SECTION 408. CUMULATION AND CONFLICT OF WARRANTIES. Warranties, whether express or implied, must be construed as consistent with each other and as cumulative, but if that construction is unreasonable, the intention of the parties determines which warranty is dominant. In ascertaining that intention, the following rules apply: (1) Exact or technical specifications displace an inconsistent sample or model or general language of description. (2) A sample displaces inconsistent general language of description. (3) Express warranties displace inconsistent implied warranties other than an implied warranty under Section 405(a). SECTION 409. THIRD-PARTY BENEFICIARIES OF WARRANTY. (a) Except for published informational content, a warranty to a licensee extends to persons for whose benefit the licensor intends to supply the information or informational rights and which rightfully use the information in a transaction or application of a kind in which the licensor intends the information to be used. (b) A warranty to a consumer extends to each individual consumer in the licensee's immediate family or household if the individual's use would have been reasonably expected by the licensor. (c) A contractual term that excludes or limits the persons to which a warranty extends is effective except as to individuals described in subsection (b). (d) A disclaimer or modification of a warranty or remedy which is effective against the licensee is also effective against third persons to which a warranty extends under this section. PART 5 TRANSFER OF INTERESTS AND RIGHTS [SUBPART A. OWNERSHIP AND TRANSFERS] SECTION 501. OWNERSHIP OF INFORMATIONAL RIGHTS. (a) If an agreement provides for conveyance of ownership of informational rights in a computer program, ownership passes at the time and place specified by the agreement but does not pass until the program is in existence and identified to the contract. If the agreement does not specify a different time, ownership passes when the program and the informational rights are in existence and identified to the contract. (b) Transfer of a copy does not transfer ownership of informational rights. SECTION 502. TITLE TO COPY. (a) In a license: (1) title to a copy is determined by the license; (2) a licensee's right under the license to possession or control of a copy is governed by the license and does not depend solely on title to the copy; and (3) if a licensor reserves title to a copy, the licensor retains title to that copy and any copies made of it, unless the license grants the licensee a right to make and sell copies to others, in which case the reservation of title applies only to copies delivered to the licensee by the licensor. (b) If an agreement provides for transfer of title to a copy, title passes: (1) at the time and place specified in the agreement; or (2) if the agreement does not specify a time and place: (A) with respect to delivery of a copy on a tangible medium, at the time and place the licensor completed its obligations with respect to tender of the copy; or (B) with respect to electronic delivery of a copy, if a first sale occurs under federal copyright law, at the time and place at which the licensor completed its obligations with respect to tender of the copy. (c) If the party to which title passes under the contract refuses delivery of the copy or rejects the terms of the agreement, title revests in the licensor. SECTION 503. TRANSFER OF CONTRACTUAL INTEREST. The following rules apply to a transfer of a contractual interest: (1) A party's contractual interest may be transferred unless the transfer: (A) is prohibited by other law; or (B) except as otherwise provided in paragraph (3), would materially change the duty of the other party, materially increase the burden or risk imposed on the other party, or materially impair the other party's property or its likelihood or expectation of obtaining return performance. (2) Except as otherwise provided in paragraph (3) and Section 508(a)(1)(B) , a term prohibiting transfer of a party's contractual interest is enforceable, and a transfer made in violation of that term is a breach of contract and is ineffective to create contractual rights in the transferee against the nontransferring party, except to the extent that: (A) the contract is a license for incorporation or use of the licensed information or informational rights with information or informational rights from other sources in a combined work for public distribution or public performance and the transfer is of the completed, combined work; or (B) the transfer is of a right to payment arising out of the transferor's due performance of less than its entire obligation and the transfer would be enforceable under paragraph (1) in the absence of the term prohibiting transfer. (3) A right to damages for breach of the whole contract or a right to payment arising out of the transferor's due performance of its entire obligation may be transferred notwithstanding an agreement otherwise. (4) A term that prohibits transfer of a contractual interest under a mass-market license by the licensee must be conspicuous. SECTION 504. EFFECT OF TRANSFER OF CONTRACTUAL INTEREST. (a) A transfer of "the contract" or of "all my rights under the contract", or a transfer in similar general terms, is a transfer of all contractual interests under the contract. Whether the transfer is effective is determined by Sections 503 and 508(a)(1)(B). (b) The following rules apply to a transfer of a party's contractual interests: (1) The transferee is subject to all contractual use terms. (2) Unless the language or circumstances otherwise indicate, as in a transfer as security, the transfer delegates the duties of the transferor and transfers its rights. (3) Acceptance of the transfer is a promise by the transferee to perform the delegated duties. The promise is enforceable by the transferor and any other party to the original contract. (4) The transfer does not relieve the transferor of any duty to perform, or of liability for breach of contract, unless the other party to the original contract agrees that the transfer has that effect. (c) A party to the original contract, other than the transferor, may treat a transfer that conveys a right or duty of performance without its consent as creating reasonable grounds for insecurity and, without prejudice to the party's rights against the transferor, may demand assurances from the transferee under Section 708. SECTION 505. PERFORMANCE BY DELEGATE; SUBCONTRACT. (a) A party may perform its contractual duties or exercise its contractual rights through a delegate or a subcontract unless: (1) the contract prohibits delegation or subcontracting; or (2) the other party has a substantial interest in having the original promisor perform or control the performance. (b) Delegating or subcontracting performance does not relieve the delegating party of a duty to perform or of liability for breach. (c) An attempted delegation that violates a term prohibiting delegation is not effective. SECTION 506. TRANSFER BY LICENSEE. (a) If all or any part of a licensee's interest in a license is transferred, voluntarily or involuntarily, the transferee does not acquire an interest in information, copies, or the contractual or informational rights of the licensee unless the transfer is effective under Section 503 or 508(a)(1)(B). If the transfer is effective, the transferee takes subject to the terms of the license. (b) Except as otherwise provided under trade secret law, a transferee acquires no more than the contractual interest or other rights that the transferor was authorized to transfer. [SUBPART B. FINANCING ARRANGEMENTS] SECTION 507. FINANCING IF FINANCIER DOES NOT BECOME LICENSEE. If a financier does not become a licensee in connection with its financial accommodation contract, the following rules apply: (1) The financier does not receive the benefits or burdens of the license. (2) The licensee's rights and obligations with respect to the information and informational rights are governed by: (A) the license; (B) any rights of the licensor under other law; and (C) to the extent not inconsistent with subparagraphs (A) and (B), any financial accommodation contract between the financier and the licensee, which may add additional conditions to the licensee's right to use the licensed information or informational rights. SECTION 508. FINANCE LICENSES. (a) If a financier becomes a licensee in connection with its financial accommodation contract and then transfers its contractual interest under the license, or sublicenses the licensed computer information or informational rights, to a licensee receiving the financial accommodation, the following rules apply: (1) The transfer or sublicense to the accommodated licensee is not effective unless: (A) the transfer or sublicense is effective under Section 503; or (B) the following conditions are fulfilled: (i) before the licensor delivered the information or granted the license to the financier, the licensor received notice in a record from the financier giving the name and location of the accommodated licensee and clearly indicating that the license was being obtained in order to transfer the contractual interest or sublicense the licensed information or informational rights to the accommodated licensee; (ii) the financier became a licensee solely to make the financial accommodation; and (iii) the accommodated licensee adopts the terms of the license, which terms may be supplemented by the financial accommodation contract, to the extent the terms of the financial accommodation contract are not inconsistent with the license and any rights of the licensor under other law. (2) A financier that makes a transfer that is effective under paragraph (1)(B) may make only the single transfer or sublicense contemplated by the notice unless the licensor consents to a later transfer. (b) If a financier makes an effective transfer of its contractual interest in a license, or an effective sublicense of the licensed information or informational rights, to an accommodated licensee, the following rules apply: (1) The accommodated licensee's rights and obligations are governed by: (A) the license; (B) any rights of the licensor under other law; and (C) to the extent not inconsistent with subparagraphs (A) and (B), the financial accommodation contract, which may impose additional conditions to the licensee's right to use the licensed information or informational rights. (2) The financier does not make warranties to the accommodated licensee other than the warranty under Section 401(b)(1) and any express warranties in the financial accommodation contract. SECTION 509. FINANCING ARRANGEMENTS: OBLIGATIONS IRREVOCABLE. Unless the accommodated licensee is a consumer, a term in a financial accommodation contract providing that the accommodated licensee's obligations to the financier are irrevocable and independent is enforceable. The obligations become irrevocable and independent upon the licensee's acceptance of the license or the financier's giving of value, whichever occurs first. SECTION 510. FINANCING ARRANGEMENTS: REMEDIES OR ENFORCEMENT. (a) Except as otherwise provided in subsection (b), on material breach of a financial accommodation contract by the accommodated licensee, the following rules apply: (1) The financier may cancel the financial accommodation contract. (2) Subject to paragraphs (3) and (4), the financier may pursue its remedies against the accommodated licensee under the financial accommodation contract. (3) If the financier became a licensee and made a transfer or sublicense that was effective under Section 508, it may exercise the remedies of a licensor for breach, including the rights of an aggrieved party under Section 815, subject to the limitations of Section 816. (4) If the financier did not become a licensee or did not make a transfer that was effective under Section 508, it may enforce a contractual right contained in the financial accommodation contract to preclude the licensee's further use of the information. However, the following rules apply: (A) The financier has no right to take possession of copies, use the information or informational rights, or transfer any contractual interest in the license. (B) If the accommodated licensee agreed to transfer possession of copies to the financier in the event of material breach of the financial accommodation contract, the financier may enforce that contractual right only if permitted to do so under subsection (b)(1) and Section 503. (b) The following additional limitations apply to a financier's remedies under subsection (a): (1) A financier described in subsection (a)(3) which is entitled under the financial accommodation contract to take possession or prevent use of information, copies, or related materials may do so only if the licensor consents or if doing so would not result in a material adverse change of the duty of the licensor, materially increase the burden or risk imposed on the licensor, disclose or threaten to disclose trade secrets or confidential material of the licensor, or materially impair the licensor's likelihood or expectation of obtaining return performance. (2) The financier may not otherwise exercise control over, have access to, or sell, transfer, or otherwise use the information or copies without the consent of the licensor unless the financier or transferee is subject to the terms of the license and: (A) the licensee owns the licensed copy, the license does not preclude transfer of the licensee's contractual rights, and the transfer complies with federal copyright law for the owner of a copy to make the transfer; or (B) the license is transferable by its express terms and the financier fulfills any conditions to, or complies with any restrictions on, transfer. (3) The financier's remedies under the financial accommodation contract are subject to the licensor's rights and the terms of the license. SECTION 511. FINANCING ARRANGEMENTS: EFFECT ON LICENSOR'S RIGHTS. (a) The creation of a financier's interest does not place any obligations on or alter the rights of a licensor. (b) A financier's interest does not attach to any intellectual property rights of the licensor unless the licensor expressly consents to such attachment in a license or another record. PART 6 PERFORMANCE [SUBPART A. GENERAL] SECTION 601. PERFORMANCE OF CONTRACT IN GENERAL. (a) A party shall perform in a manner that conforms to the contract. (b) If an uncured material breach of contract by one party precedes the aggrieved party's performance, the aggrieved party need not perform except with respect to restrictions in contractual use terms, but the contractual use terms do not apply to information or copies properly received or obtained from another source. In addition, the following rules apply: (1) The aggrieved party may refuse a performance that is a material breach as to that performance or a performance that may be refused under Section 704(b). (2) The aggrieved party may cancel the contract only if the breach is a material breach of the whole contract or the agreement so provides. (c) Except as otherwise provided in subsection (b), tender of performance by a party entitles the party to acceptance of that performance. In addition, the following rules apply: (1) A tender of performance occurs when the party, with manifest present ability and willingness to perform, offers to complete the performance. (2) If a performance by the other party is due at the time of the tendered performance, tender of the other party's performance is a condition to the tendering party's obligation to complete the tendered performance. (3) A party shall pay or render the consideration required by the agreement for a performance it accepts. A party that accepts a performance has the burden of establishing a breach of contract with respect to the accepted performance. (d) Except as otherwise provided in Sections 603 and 604, in the case of a performance with respect to a copy, this section is subject to Sections 606 through 610 and Sections 704 through 707. SECTION 602. LICENSOR'S OBLIGATIONS TO ENABLE USE. (a) In this section, "enable use" means to grant a contractual right or permission with respect to information or informational rights and to complete the acts, if any, required under the agreement to make the information available to the licensee. (b) A licensor shall enable use by the licensee pursuant to the contract. The following rules apply to enabling use: (1) If nothing other than the grant of a contractual right or permission is required to enable use, the licensor enables use when the contract becomes enforceable. (2) If the agreement requires delivery of a copy, enabling use occurs when the copy is tendered to the licensee. (3) If the agreement requires delivery of a copy and steps authorizing the licensee's use, enabling use occurs when the last of those acts occurs. (4) In an access contract, enabling use requires tendering all access material necessary to enable the agreed access. (5) If the agreement requires a transfer of ownership of informational rights and a filing or recording is allowed by law to establish priority of the transferred ownership, on request by the licensee, the licensor shall execute and tender a record appropriate for that purpose. SECTION 603. SUBMISSIONS OF INFORMATION TO SATISFACTION OF PARTY. If an agreement requires that submitted information be to the satisfaction of the recipient, the following rules apply: (1) Sections 606 through 610 and Sections 704 through 707 do not apply to the submission. (2) If the information is not satisfactory to the recipient and the parties engage in efforts to correct the deficiencies in a manner and over a time consistent with the ordinary standards of the business, trade, or industry, neither the efforts nor the passage of time required for the efforts is an acceptance or a refusal of the submission. (3) Except as otherwise provided in paragraph (4), neither refusal nor acceptance occurs unless the recipient expressly refuses or accepts the submitted information, but the recipient may not use the submitted information before acceptance. (4) Silence and a failure to act in reference to a submission beyond a commercially reasonable time to respond entitle the submitting party to demand, in a record delivered to the recipient, a decision on the submission. If the recipient fails to respond within a reasonable time after receipt of the demand, the submission is deemed to have been refused. SECTION 604. IMMEDIATELY COMPLETED PERFORMANCE. If a performance involves delivery of information or services which, because of their nature, may provide a licensee, immediately on performance or delivery, with substantially all the benefit of the performance or with other significant benefit that cannot be returned, the following rules apply: (1) Sections 607 through 610 and Sections 704 through 707 do not apply. (2) The rights of the parties are determined under Section 601 and the ordinary standards of the business, trade, or industry. (3) Before tender of the performance, a party entitled to receive the tender may inspect the media, labels, or packaging but may not view the information or otherwise receive the performance before completing any performance of its own that is then due. SECTION 605. ELECTRONIC REGULATION OF PERFORMANCE. (a) In this section, "automatic restraint" means a program, code, device, or similar electronic or physical limitation the intended purpose of which is to restrict use of information. (b) A party entitled to enforce a limitation on use of information may include an automatic restraint in the information or a copy of it and use that restraint if: (1) a term of the agreement authorizes use of the restraint; (2) the restraint prevents a use that is inconsistent with the agreement; (3) the restraint prevents use after expiration of the stated duration of the contract or a stated number of uses; or (4) the restraint prevents use after the contract terminates, other than on expiration of a stated duration or number of uses, and the licensor gives reasonable notice to the licensee before further use is prevented. (c) This section does not authorize an automatic restraint that affirmatively prevents or makes impracticable a licensee's access to its own information or information of a third party, other than the licensor, if that information is in the possession of the licensee or a third party and accessed without use of the licensor's information or informational rights. (d) A party that includes or uses an automatic restraint consistent with subsection (b) or (c) is not liable for any loss caused by the use of the restraint. (e) This section does not preclude electronic replacement or disabling of an earlier copy of information by the licensor in connection with delivery of a new copy or version under an agreement to replace or disable the earlier copy by electronic means with an upgrade or other new information. (f) This section does not authorize use of an automatic restraint to enforce remedies in the event of breach of contract or of cancellation for breach. [SUBPART B. PERFORMANCE IN DELIVERY OF COPIES] SECTION 606. COPY: DELIVERY; TENDER OF DELIVERY. (a) Delivery of a copy must be at the location designated by agreement. In the absence of a designation, the following rules apply: (1) The place for delivery of a copy on a tangible medium is the tendering party's place of business or, if it has none, its residence. However, if the parties know at the time of contracting that the copy is located in some other place, that place is the place for delivery. (2) The place for electronic delivery of a copy is an information processing system designated or used by the licensor. (3) Documents of title may be delivered through customary banking channels. (b) Tender of delivery of a copy requires the tendering party to put and hold a conforming copy at the other party's disposition and give the other party any notice reasonably necessary to enable it to obtain access to, control, or possession of the copy. Tender must be at a reasonable hour and, if applicable, requires tender of access material and other documents required by the agreement. The party receiving tender shall furnish facilities reasonably suited to receive tender. In addition, the following rules apply: (1) If the contract requires delivery of a copy held by a third person without being moved, the tendering party shall tender access material or documents required by the agreement. (2) If the tendering party is required or authorized to send a copy to the other party and the contract does not require the tendering party to deliver the copy at a particular destination, the following rules apply: (A) In tendering delivery of a copy on a tangible medium, the tendering party shall put the copy in the possession of a carrier and make a contract for its transportation that is reasonable in light of the nature of the information and other circumstances, with expenses of transportation to be borne by the receiving party. (B) In tendering electronic delivery of a copy, the tendering party shall initiate or cause to have initiated a transmission that is reasonable in light of the nature of the information and other circumstances, with expenses of transmission to be borne by the receiving party. (3) If the tendering party is required to deliver a copy at a particular destination, the tendering party shall make a copy available at that destination and bear the expenses of transportation or transmission. SECTION 607. COPY: PERFORMANCE RELATED TO DELIVERY; PAYMENT. (a) If performance requires delivery of a copy, the following rules apply: (1) The party required to deliver need not complete a tendered delivery until the receiving party tenders any performance then due. (2) Tender of delivery is a condition of the other party's duty to accept the copy and entitles the tendering party to acceptance of the copy. (b) If payment is due on delivery of a copy, the following rules apply: (1) Tender of delivery is a condition of the receiving party's duty to pay and entitles the tendering party to payment according to the contract. (2) All copies required by the contract must be tendered in a single delivery, and payment is due only on tender. (c) If the circumstances give either party the right to make or demand delivery in lots, the contract fee, if it can be apportioned, may be demanded for each lot. (d) If payment is due and demanded on delivery of a copy or on delivery of a document of title, the right of the party receiving tender to retain or dispose of the copy or document, as against the tendering party, is conditioned on making the payment due. SECTION 608. COPY: RIGHT TO INSPECT; PAYMENT BEFORE INSPECTION. (a) Except as otherwise provided in Sections 603 and 604, if performance requires delivery of a copy, the following rules apply: (1) Except as otherwise provided in this section, the party receiving the copy has a right before payment or acceptance to inspect the copy at a reasonable place and time and in a reasonable manner to determine conformance to the contract. (2) The party making the inspection shall bear the expenses of inspection. (3) A place or method of inspection or an acceptance standard fixed by the parties is presumed to be exclusive. However, the fixing of a place, method, or standard does not postpone identification to the contract or shift the place for delivery, passage of title, or risk of loss. If compliance with the place or method becomes impossible, inspection must be made as provided in this section unless the place or method fixed by the parties was an indispensable condition the failure of which avoids the contract. (4) A party's right to inspect is subject to existing obligations of confidentiality. (b) If a right to inspect exists under subsection (a) but the agreement is inconsistent with an opportunity to inspect before payment, the party does not have a right to inspect before payment. (c) If a contract requires payment before inspection of a copy, nonconformity in the tender does not excuse the party receiving the tender from making payment unless: (1) the nonconformity appears without inspection and would justify refusal under Section 704; or (2) despite tender of the required documents, the circumstances would justify an injunction against honor of a letter of credit under [Article 5 of the Uniform Commercial Code]. (d) Payment made under circumstances described in subsection (b) or (c) is not an acceptance of the copy and does not impair a party's right to inspect or preclude any of the party's remedies. SECTION 609. COPY: WHEN ACCEPTANCE OCCURS. (a) Acceptance of a copy occurs when the party to which the copy is tendered: (1) signifies, or acts with respect to the copy in a manner that signifies, that the tender was conforming or that the party will take or retain the copy despite the nonconformity; (2) does not make an effective refusal; (3) commingles the copy or the information in a manner that makes compliance with the party's duties after refusal impossible; (4) obtains a substantial benefit from the copy and cannot return that benefit; or (5) acts in a manner inconsistent with the licensor's ownership, but the act is an acceptance only if the licensor elects to treat it as an acceptance and ratifies the act to the extent it was within contractual use terms. (b) Except in cases governed by subsection (a)(3) or (4), if there is a right to inspect under Section 608 or the agreement, acceptance of a copy occurs only after the party has had a reasonable opportunity to inspect the copy. (c) If an agreement requires delivery in stages involving separate portions that taken together comprise the whole of the information, acceptance of any stage is conditional until acceptance of the whole. SECTION 610. COPY: EFFECT OF ACCEPTANCE; BURDEN OF ESTABLISHING; NOTICE OF CLAIMS. (a) A party accepting a copy shall pay or render the consideration required by the agreement for the copy it accepts. Acceptance of a copy precludes refusal and, if made with knowledge of a nonconformity in a tender, may not be revoked because of the nonconformity unless acceptance was on the reasonable assumption that the nonconformity would be seasonably cured. Acceptance by itself does not impair any other remedy for nonconformity. (b) A party accepting a copy has the burden of establishing a breach of contract with respect to the copy. (c) If a copy has been accepted, the accepting party shall: (1) except with respect to claims of a type described in Section 805(d)(1), within a reasonable time after it discovers or should have discovered a breach of contract, notify the other party of the breach or be barred from any remedy for the breach; and (2) if the claim is for breach of a warranty regarding noninfringement and the accepting party is sued by a third party because of the breach, notify the warrantor within a reasonable time after receiving notice of the litigation or be precluded from any remedy over for the liability established by the litigation. [SUBPART C. SPECIAL TYPES OF CONTRACTS] SECTION 611. ACCESS CONTRACTS. (a) If an access contract provides for access over a period of time, the following rules apply: (1) The licensee's rights of access are to the information as modified and made commercially available by the licensor from time to time during that period. (2) A change in the content of the information is a breach of contract only if the change conflicts with an express term of the agreement. (3) Unless it is subject to a contractual use term, information obtained by the licensee is free of any use restriction other than a restriction resulting from the informational rights of another person or other law. (4) Access must be available: (A) at times and in a manner conforming to the express terms of the agreement; and (B) to the extent not expressly stated in the agreement, at times and in a manner reasonable for the particular type of contract in light of the ordinary standards of the business, trade, or industry. (b) In an access contract that gives the licensee a right of access at times substantially of its own choosing during agreed periods, an occasional failure to have access available during those times is not a breach of contract if it is: (1) consistent with ordinary standards of the business, trade, or industry for the particular type of contract; or (2) caused by: (A) scheduled downtime; (B) reasonable needs for maintenance; (C) reasonable periods of failure of equipment, computer programs, or communications; or (D) events reasonably beyond the licensor's control, and the licensor exercises such commercially reasonable efforts as the circumstances require. SECTION 612. CORRECTION AND SUPPORT CONTRACTS. (a) If a person agrees to provide services regarding the correction of performance problems in computer information, other than an agreement to cure its own existing breach of contract, the following rules apply: (1) If the services are provided by a licensor of the information as part of a limited remedy, the licensor undertakes that its performance will provide the licensee with information that conforms to the agreement to which the limited remedy applies. (2) In all other cases, the person: (A) shall perform at a time and place and in a manner consistent with the express terms of the agreement and, to the extent not stated in the express terms, at a time and place and in a manner that is reasonable in light of ordinary standards of the business, trade, or industry; and (B) does not undertake that its services will correct performance problems unless the agreement expressly so provides. (b) Unless required to do so by an express or implied warranty, a licensor is not required to provide instruction or other support for the licensee's use of information or access. A person that agrees to provide support shall make the support available in a manner and with a quality consistent with express terms of the support agreement and, to the extent not stated in the express terms, at a time and place and in a manner that is reasonable in light of ordinary standards of the business, trade, or industry. SECTION 613. CONTRACTS INVOLVING PUBLISHERS, DEALERS, AND END USERS. (a) In this section: (1) "Dealer" means a merchant licensee that receives information directly or indirectly from a licensor for sale or license to end users. (2) "End user" means a licensee that acquires a copy of the information from a dealer by delivery on a tangible medium for the licensee's own use and not for sale, license, transmission to third persons, or public display or performance for a fee. (3) "Publisher" means a licensor, other than a dealer, that offers a license to an end user with respect to information distributed by a dealer to the end user. (b) In a contract between a dealer and an end user, if the end user's right to use the information or informational rights is subject to a license by the publisher and there was no opportunity to review the license before the end user became obligated to pay the dealer, the following rules apply: (1) The contract between the end user and the dealer is conditioned on the end user's agreement to the publisher's license. (2) If the end user does not agree, such as by manifesting assent, to the terms of the publisher's license, the end user has a right to a return from the dealer. A right under this paragraph is a return for purposes of Sections 112, 208, and 209. (3) The dealer is not bound by the terms, and does not receive the benefits, of an agreement between the publisher and the end user unless the dealer and end user adopt those terms as part of the agreement. (c) If an agreement provides for distribution of copies on a tangible medium or in packaging provided by the publisher or an authorized third party, a dealer may distribute those copies and documentation only: (1) in the form as received; and (2) subject to the terms of any license the publisher that the publisher provides to the dealer to be furnished to end users. (d) A dealer that enters into an agreement with an end user is a licensor with respect to the end user under this [Act]. [SUBPART D. LOSS AND IMPOSSIBILITY] SECTION 614. RISK OF LOSS OF COPY. (a) Except as otherwise provided in this section, the risk of loss as to a copy that is to be delivered to a licensee, including a copy delivered by electronic means, passes to the licensee upon its receipt of the copy. (b) If an agreement requires or authorizes a licensor to send a copy on a tangible medium by carrier, the following rules apply: (1) If the agreement does not require the licensor to deliver the copy at a particular destination, the risk of loss passes to the licensee when the copy is duly delivered to the carrier, even if the shipment is under reservation. (2) If the agreement requires the licensor to deliver the copy at a particular destination and the copy is duly tendered there in the possession of the carrier, the risk of loss passes to the licensee when the copy is tendered at that destination. (3) If a tender of delivery of a copy or a shipping document fails to conform to the contract, the risk of loss remains with the licensor until cure or acceptance. (c) If a copy is held by a third party to be delivered or reproduced without being moved or a copy is to be delivered by making access available to a third party resource containing a copy, the risk of loss passes to the licensee upon: (1) the licensee's receipt of a negotiable document of title or other access materials covering the copy; (2) acknowledgment by the third party to the licensee of the licensee's right to possession of or access to the copy; or (3) the licensee's receipt of a record directing the third party, pursuant to an agreement between the licensor and the third party, to make delivery or authorizing the third party to allow access. SECTION 615. EXCUSE BY FAILURE OF PRESUPPOSED CONDITIONS. (a) Unless a party has assumed a different obligation, delay in performance by a party, or nonperformance in whole or part by a party, other than of an obligation to make payments or to conform to contractual use terms, is not a breach of contract if the delay or nonperformance is of a performance that has been made impracticable by: (1) the occurrence of a contingency the nonoccurrence of which was a basic assumption on which the contract was made; or (2) compliance in good faith with any foreign or domestic statute, governmental rule, regulation,