It is enacted by the General Assembly as follows:

SECTION 1. Title 6 of the general laws entitled "Commercial Law -- General Regulatory Provisions" is hereby amended by adding thereto the following chapter:

{ADD 6-45-1. Definitions. -- ADD} {ADD The following words and phrases which are used in this chapter shall, for the purposes of this chapter, have the following meanings:

(a) "Individual with disabilities" means any individual who is considered to have a mental or physical disability, impairment or handicap for the purposes of any other law of this state or of the United States, including any rules or regulations thereunder.

(b) "Assistive technology device" means any item, piece of equipment, or product system, whether acquired commercially off the shelf, modified, or customized, that is used or designed to be used to increase, maintain, or improve any functional capability of an individual with disabilities. An assistive technology device system, that as a whole is within the definition of this term, is itself an assistive technology device, and in such case this term also applies to each component product of the assistive technology device system that is itself ordinarily an assistive technology device. This term includes, but is not limited to:

(1) Wheelchairs and scooters of any kind, and other aids that enhance the mobility or positioning of an individual, such as motorization, motorized positioning features, and the switches and controls for any motorized features;

(2) Hearing aids, telephone communication devices for the deaf, and other assistive listening devices;

(3) Computer equipment and reading devices with voice output, optical scanners, talking software, braille printers, and other aids and devices that provide access to text;

(4) Computer equipment with voice output, artificial larynges, voice amplification devices, and other alternative and augmentative communication devices;

(5) Voice recognition computer equipment, software and hardware accommodations, switches, and other forms of alternative access to computers;

(6) Environmental control units; and,

(7) Simple mechanical aids that enhance the functional capabilities of an individual with disabilities.

(c) "Demonstrator" means an assistive technology device that would be new but for its use, since its manufacture, only for the purpose of demonstrating the device to the public or prospective buyers or lessees.

(d) "User" of an assistive technology device means the individual with a disability who, by reason thereof, needs and actually uses that device.

(e) "Consumer" of an assistive technology device means the person who is a party, whether the buyer or the lessee, to the contract of sale or lease, respectively, of that device. Such party may be, but is not necessarily, the user.

(f) "Manufacturer" means:

(1) the person who manufactures or assembles an assistive technology device,

(2) the person who manufactures or assembles a product that becomes a component product of an assistive technology device system, to the extent such product is itself ordinarily an assistive technology device, and,

(3) agents of a person described in subsection (f)(1) or (f)(2) of this section, including an importer, a distributor, factory branch, distributor branch and any warrantors of the manufacturer's devices, provided that such agents shall not include, with respect to a particular transaction, the dealer, unless the dealer is also a person described in subsection (f)(1) or (f)(2) of this section.

(g) "Dealer" means the person who is the party, whether the seller or the lessor, to the contract with the consumer of sale or lease, respectively, of the device. ADD}

{ADD (h) "Assistive technology device dealer" means a dealer who is in the business of selling or leasing assistive technology devices. A dealer shall be an assistive technology device dealer with respect to a particular sale or lease of a product that constitutes an assistive technology device as to that sale or lease, if he or she is in the business generally of selling or leasing that product or kind of product, without regard to whether that product constitutes an assistive technology device for other buyers.

(i) "Collateral costs" means expenses incurred by a consumer in connection with the repair of a nonconformity, including the costs of obtaining another device or service to substitute for the absence, due to a nonconformity or attempt to repair, of the device sold or leased to the consumer, if no loaner was offered to the consumer, except to the extent the person opposing liability for such costs shall prove that incurring such expenses was not reasonable in light of the sophistication of and the means readily available to the consumer.

(j) "Early termination cost" means any expense or obligation that a lessor incurs as a result of both the termination of a written lease before the termination date set forth in that least and the return of the device to the manufacturer. Early termination cost includes a penalty for prepayment under a finance arrangement.

(k) "Early termination savings" means any expense or obligation that a lessor avoids as a result of both the termination of a written lease before the termination date set forth in that lease and the return of the device to the manufacturer, which shall include an interest charge that the lessor would have paid to finance the device or, if the lessor does not finance the device, the difference between the total amount for which the lease obligates the consumer during the period of the lease term remaining after the early termination and the present value of that amount at the date of the early termination.

(l) "Nonconformity" of an assistive technology device means any failure of the device to conform to any applicable express or implied warranties, that substantially impairs the use, value, or safety of the device. The implied warranties described in the preceding sentence include, but are not limited to, the implied warranty of merchantability described in section 6A-2-314 or section 6A-2.1-212, and the implied warranty of fitness for a particular purpose described in section 6A-2-315 or section 6A-2.1-213 and subject to the provisions of section 6-45-2.

(m) "Conforming replacement" means a new device in good working order, that is identical to or has functional capabilities equal to or greater than those of the original device.

(n) "Loaner" means a device, provided to the consumer for use by the user free of charge, that need not be new or be identical to or have functional capabilities equal to or greater than those of the original device, but that meets the following conditions:

(1) it is in good working order,

(2) it performs at a minimum the most essential functions of the original device, in light of the disabilities of the user, and,

(3) any differences between it and the original device do not create a threat to safety.

(o) "Term A" means the year following the date the device is first delivered into the possession of the consumer.

(p) "Term B" means the two (2) years following the date the device is first delivered into the possession of the consumer. ADD}

{ADD (q) "Assistive technology device system" means the final product resulting from a manufacturer customizing, adapting, reconfiguring, refitting, refurbishing or composing into a system one (1) or more component products, whether or not new, that may be assistive technology devices or standard products of the same or other manufacturer. ADD}

{ADD 6-45-2. Effect on implied warranties of uniform commercial code. -- ADD} {ADD (a) For purposes of section 6A-2-314 or section 6A-2.1-212, and of section 6A-2-315 or section 6A-2.1-213, with respect to a sale or a lease of an assistive technology device, the term "seller" or "lessor" shall include the manufacturer of the device.

(b) For purposes of section 6A-2-315 or section 6A-2.1-213, with respect to a sale or lease of an assistive technology device, the seller or lessor shall be deemed to know that the particular purpose, for which the device is required, is to increase, maintain, or improve those functional capabilities that are appropriate to the kind of device involved, in light of any knowledge that the seller or lessor may have, however acquired, of the disabilities of the consumer.

(c) For purposes of section 6A-2-315 or section 6A-2.1-213. with respect to a sale or lease of an assistive technology device, the seller or lessor shall be deemed to know that the consumer is relying on the seller's or lessor's skill or judgment to select or furnish a suitable device in light of the knowledge that the seller or lessor has, or is deemed to have by reason of subsection (b) of this section, unless the consumer specifies a particular device and signs and is furnished a copy of a writing that:

(1) particularly describes the device that the consumer is specifying;

(2) states that such person is specifying that device so described; and,

(3) contains the following notice, conspicuously in type that is at least four points larger than the surrounding text: "There is no warranty (guarantee) that this product will be fit for your particular needs. There is only a warranty (guarantee) that the product will be fit for the purposes that it ordinarily meets. This is because you have specified the product you want to buy instead of relying on the seller's/lessor's knowledge to help choose one based upon your particular needs."

(d) With respect to a sale or lease of an assistive technology device, the implied warranty of merchantability described in section 6A-2-314 or section 6A-2.1-212, and the implied warranty of fitness for a particular purpose described in section 6A-2-315 or section 6A-2.1-213, shall not be excluded or modified, pursuant to section 6A-2-316, section 6A-2.1-214 or otherwise. ADD}

{ADD 6-45-3. Repair of assistive technology device with nonconformity. -- ADD} {ADD (a) If a new assistive technology device, or a demonstrator, has a nonconformity and the consumer first reports that nonconformity to the manufacturer of the device or its authorized dealer within Term B, then the manufacturer of the device shall be jointly obligated together with any authorized dealer, if an assistive technology device dealer, who was involved in the sale or lease of the device, to effect such repairs as are necessary to conform the device to all warranties, notwithstanding that those repairs might be made after the expiration of Term B.

(b) For all purposes of this chapter, a consumer reports a nonconformity when he or she:

(1) makes any communication, written or oral, that describes a problem with the device, or that may be reasonably understood as an expression of dissatisfaction with any aspect of the operation of the device, which communication need only indicate in any way the nature of the problem, such as an indication of the functions that the device is not achieving or achieving unsatisfactorily to the consumer, and need not be in technical language or attempt to state the cause of the problem;

(2) does not refuse to make the device available to such manufacturer or dealer for repair; and,

(3) the problem indicated by the consumer's communication constitutes, or is caused by, a nonconformity.

(c) It shall be presumed that the consumer has made the device available to such manufacturer or dealer for repair if he or she allows such manufacturer or dealer to take it from the consumer's home, or other location where the user customarily uses the device. The consumer shall be required to deliver the device to another location only upon a showing that it would be a substantially greater hardship for the manufacturer and dealer to take the device from the consumer's home, or other location where the user customarily uses the device, than for the consumer to so deliver the device.

(d) Whether or not the rights of the consumer provided by section 6-45-5(a) have arisen, and in addition to the remedies relating to collateral costs provided by this chapter, a person who is under an obligation to repair pursuant to this section, is obliged forthwith to provide the consumer a loaner, if the absence of a loaner would be a threat to the safety of the user, but in any event when the out-of-service period exceeds seven (7) days, as determined by sections 6-45-4(b) and 4(c). ADD}

{ADD 6-45-4. Reasonable number of attempts to repair. -- ADD} {ADD (a) A "reasonable number of attempts to repair" an assistive technology device with a nonconformity means the occurrence of one (1) or both of the following:

(1) The same nonconformity, that is first reported during Term A, is subject to repair two (2) or more times during Term B.

(2) The device is out-of-service for an aggregate of thirty (30) or more calendar days during Term A because of one (1) or more nonconformities.

(b) For purposes of counting the days for which a device is out-of-service because of one (1) or more nonconformities, an out-of-service period shall begin with, and include, the day which is the later of:

(1) the day the nonconformity first appears, or

(2) the business day prior to the day on which the consumer first reports the nonconformity to the manufacturer of the device or its authorized dealer.

(c) For purposes of counting the days for which a device is out-of-service because of one (1) or more nonconformities, an out-of-service period shall end with, and include, the day on which the device is returned after repair, and is then free of nonconformities, to the possession of the consumer, unless such return is made by 10:00 a.m. of such day, in which case such an out-of-service period shall end with, and include, the previous day.

(d) In the event an out-of-service period has commenced during Term A, then for purposes of subsection (a)(2) of this section, Term A shall continue until the end of such out-of-service period. ADD}

{ADD 6-45-5. Replacement of refund for device. -- ADD} {ADD (a) If, after a reasonable number of attempts to repair, a nonconformity develops in a new assistive technology device, or a demonstrator, the manufacturer shall carry out the requirement under subsections (a)(1) and (a)(2) of this section, at the sole option of the consumer upon his or her request therefor:

(1)(A) In the case of a sale, the manufacturer shall refund to the consumer and to any holder of a perfected security interest, as their interest may appear, the full purchase price plus any finance charge or sales tax paid by the consumer at the point of sale and collateral costs, less a reasonable allowance for use.

(B) In the case of a lease, the manufacturer shall refund to the lessor and to any holder of a perfected security interest, as their interest may appear, the current value of the lease and refund to the consumer the amount that the consumer paid under the lease plus any collateral costs, less a reasonable allowance for use.

(2) The manufacturer shall provide a conforming replacement.

(b) To receive the refund described in subsection (a)(1) of this section or the replacement described in subsection (a)(2) of this section, the consumer shall offer to the manufacturer of the device or its authorized dealer to transfer possession of the device.

(1) The manufacturer shall make the refund required by this section within fourteen (14) calendar days after the offer described in this subsection.

(2) The manufacturer shall make the replacement required by this section within thirty (30) calendar days after the offer described in this subsection.

(3) If the replacement required by this section is not made within fourteen (14) calendar days after the offer described in this subsection, then the manufacturer shall provide the consumer a loaner for use until replacement is made.

(4) The manufacturer may require that, simultaneously with the manufacturer timely making the refund payment described in subsection (a)(1) of this section or the replacement described in subsection (a)(2) of this section, the consumer shall deliver possession of the original device to the manufacturer or its authorized dealer and sign any documents necessary to, or to provide reasonable evidence of, a transfer of title and possession of the device to such person as the manufacturer shall designate.

(5) The manufacturer may impose the requirements described in subsection (b)(4) of this section only if:

(i) the time and place of the mutual activities described in subsections (b)(1), (b)(2) and (b)(4) of this section are readily accessible to the consumer; and

(ii) the manufacturer provides the consumer a writing that is received no later than four (4) business days before the time of such mutual activities, and states in clear and understandable language the time and place of such mutual activities and the requirements allowed by subsection (b)(4) of this section that the consumer must meet at that time and place.

(c) A reasonable allowance for use shall be that amount obtained by multiplying the full purchase price (or in the case of a lease, the total amount for which the lease obligates the consumer) by a fraction, the denominator of which is the number of days in the useful life of the device and the numerator of which is the number of days after delivery of the device to the consumer and prior to the beginning of the first out-of-service period as defined in section 6-45-4(b).

(d) As used in the preceding subsection, the useful life of the device equals the greater of:

(1) five (5) years, or

(2) such other time that the consumer may prove to be the expected useful life of devices of the same kind.

(e) The current value of the lease equals the total amount for which that lease obligates the consumer during the period of the lease remaining after its early termination, plus the lessor's early termination costs and the value of the device at the lease expiration date, less the lessor's early termination savings. ADD}

{ADD (f) In the case of a manufacturer of an assistive technology device system of which one (1) or more component products are not new, if the dealer gives the consumer, prior to his or her decision to enter into the sale or lease, a written statement specifying the component products that are not new, and containing the following statement: "You will not have replace-or-refund rights under the Assistive Technology Lemon Law for the component products listed on this sheet," then such manufacturer shall not have the duties and liabilities of a manufacturer under this section with respect to such component products, but only with respect to such component products that are new and to the work performed by such manufacturer in creating the assistive technology device system. ADD}

{ADD 6-45-6. Nonconformity disclosure requirement. -- ADD} {ADD (a) No assistive technology device returned by a consumer in this state or any other state by reason of problems with its performance, fitness, quality, or functioning, may be sold or leased again in this state unless full written disclosure is made to any prospective buyer or lessor of such return, including the date, reasons therefor and the history of attempts to repair.

(b) If a sale or lease is made of an assistive technology device in violation of subsection (a) of this section, a consumer who bought or took the lease of the device shall have the rights of a consumer of a new assistive technology device provided by section 6-45-5(a), without regard to whether there is a nonconformity or to whether there has been a reasonable number of attempts to repair, except that if such consumer chooses the refund option described in section 6-45-5(a)(1), there shall be no deduction from the full purchase price in calculating the refund under that paragraph. The rights described in this paragraph run against the person who last sold or transferred the device to any other person, whether or not a consumer, with knowledge of the previous return of the device, without providing the disclosure required by the preceding paragraph. These rights may be declared and exercised by such consumer at any time within two (2) years after he or she knows of the previous return and the person against whom the rights run. ADD}

{ADD 6-45-7. Remedies. -- ADD} {ADD (a) In addition to pursuing any other remedy, a consumer may bring an action to recover any damages caused by a violation of this chapter, plus taxable costs and reasonable attorneys' fees. For a violation of any of the obligations provided by section 6-45-5(a), whether relative to a refund as described in section 6-45-5(a)(1) or to a replacement as described in section 6-45-5(a)(2), the court shall award damages equal to the greater of:

(1) actual damages, or,

(2) the sum of:

(A) two (2) times the amount obtained as:

(i) the amount that should have been refunded under section 6-45-5(a)(1), or that should have been refunded under section 6-45-5(a)(1) had the consumer chosen that option, minus,

(ii) the amount that was actually refunded, if any, minus,

(iii) the amount, if any, of the difference between the amounts described in clauses (i) and (ii) that was attributable to a good faith dispute by the manufacturer as to:

(I) the amount of collateral costs, or,

(II) the length of a useful life greater than five (5) years in calculating the reasonable allowance for use under sections 6-45-5(c) and 6-45-5(d), and

(B) the amount described in clause (iii) of the preceding subparagraph.

(b) Actual damages caused by a violation of this chapter shall include collateral costs, beginning at the time of the violation, whether or not the consumer acquired the rights provided by section 6-45-5(a).

(c) The remedies of a buyer or lessee described in section 6A-2-715 or section 6A-2.1-520, with respect to an assistive technology device, shall not be excluded or limited.

(d) The rights and remedies provided to the consumer by this chapter shall be in addition to those available under any other law.

(e) Any waiver by a consumer of rights under this chapter is void. ADD}

SECTION 2. This act shall take effect upon passage.