2023 New York Laws › GBS - General Business › Article 26 - Miscellaneous › 399-NN - Sale of Digital Electronic Equipment; Diagnostic and Repair Information.

§  399-nn. Sale of digital electronic equipment; diagnostic and repair
information. 1. Definitions. For  the  purposes  of  this  section,  the
following terms shall have the following meanings:
(a)  "Authorized  repair provider" means an individual or business who
has an arrangement with the original equipment manufacturer under  which
the original equipment manufacturer grants to the individual or business
a  license  to  use  a  trade  name,  service mark, or other proprietary
identifier for the purposes  of  offering  the  services  of  diagnosis,
maintenance, or repair of digital electronic equipment under the name of
the  original  equipment  manufacturer,  or  other  arrangement with the
original equipment manufacturer to offer such services on behalf of  the
original equipment manufacturer.
(b)  "Digital  electronic equipment" or "equipment" means any hardware
product manufactured for the first time, and first sold or used  in  New
York on or after July first, two thousand twenty-three, that depends for
its functioning, in whole or in part, on digital electronics embedded in
or attached to the product for which the original equipment manufacturer
makes   available   tools,   parts,  and  documentation  either  through
authorized repair  providers,  its  own  employees,  or  any  authorized
third-party  providers.  "Digital  electronic  equipment" or "equipment"
does   not   include    any    product    sold    under    a    specific
business-to-government  or  business-to-business  contract, which is not
otherwise offered for sale directly by a retail seller.
(c) "Documentation"  means  any  manual,  diagram,  reporting  output,
service  code  description,  schematic  diagram,  or  similar  kinds  of
information  required  for  effecting   the   services   of   diagnosis,
maintenance, or repair of digital electronic equipment.
(d)  "Fair  and reasonable terms" means making available parts, tools,
or documentation as follows:
(i) With respect to  documentation  required  for  repair,  that  such
documentation  is  made available by the original equipment manufacturer
at no charge, except  that,  when  the  documentation  is  requested  in
physical  printed  form,  a  charge  may  be included for the reasonable
actual costs of preparing and sending the copy.
(ii) With respect to tools, that such tools are made available by  the
original  equipment  manufacturer  at  no  charge  and without requiring
authorization for use or operation of such tool, or imposing impediments
to access or use of the tool to diagnose, maintain,  or  repair  digital
electronic  equipment  using  parts  provided  by the original equipment
manufacturer in accordance with this section, and in a reasonably timely
manner, except that, when such tool is requested  in  physical  form,  a
charge  may  be  included for the reasonable, actual costs of procuring,
preparing and sending such tool.
(iii) With respect to parts, that such parts are made available by the
original equipment manufacturer, either directly or  indirectly  through
an  authorized  repair  provider  or authorized third-party provider, to
independent repair providers and owners at reasonable  costs  and  terms
and which:
A.  are  not  conditioned  on  or imposing a substantial obligation or
restriction that is not reasonably necessary for enabling the  owner  or
independent  repair provider to engage in the diagnosis, maintenance, or
repair of digital electronic equipment made  by  or  on  behalf  of  the
original equipment manufacturer; and
B. are not conditioned on an arrangement described in paragraph (a) of
this subdivision.
(iv)  Such  parts, tools, and documentation shall be made available to
an authorized repair provider, and shall further be made available by an
authorized repair provider to any independent repair provider or  owner,

provided  that  such  authorized  repair  provider  is contractually and
practically permitted by the original  equipment  manufacturer  to  sell
such  parts, tools, and documentation to any independent repair provider
or owner, and provided further that such original equipment manufacturer
shall not:
A.  retaliate  against  or hinder the ability of any authorized repair
provider to sell such parts, tools, or documentation through any  means,
including  advertising  restrictions  or  product allocation limitations
unrelated to legitimate product shortages; or
B. condition or impose a substantial obligation or restriction that is
not reasonably necessary for enabling the owner  or  independent  repair
provider  to  engage in the diagnosis, maintenance, or repair of digital
electronic equipment made by or on  behalf  of  the  original  equipment
manufacturer.
(e)  "Independent  repair  provider"  means  an individual or business
operating in this state, that does not have an arrangement described  in
paragraph   (a)   of   this   subdivision  with  an  original  equipment
manufacturer,  and  who  is  engaged  in  the  services  of   diagnosis,
maintenance, or repair of digital electronic equipment.
(f) "Manufacturer of motor vehicle equipment" means a business engaged
in  the  business of manufacturing or supplying components that are used
in the manufacture, maintenance, or repair of a motor vehicle.
(g)  "Medical  device"  means  an  instrument,  apparatus,  implement,
machine,  contrivance,  implant,  or  other  similar or related article,
including a component part, or accessory,  as  defined  in  the  federal
Food,  Drug  and  Cosmetic  Act, 21 USC, Section 321 (h) as amended from
time to time, which is intended for use in the diagnosis of  disease  or
other  conditions,  or in the cure, mitigation, treatment, or prevention
of disease, in man or other animals.
(h) "Motor vehicle" means a vehicle that is designed for  transporting
persons  or  property  on  a  street  or highway and is certified by the
manufacturer under all applicable federal safety and emissions standards
and requirements for distribution and sale in the United States.
(i) "Motor vehicle dealer" means an individual or business who, in the
ordinary course of business, is engaged in the business  of  selling  or
leasing  motor  vehicles  to  an  individual  or  business pursuant to a
franchise agreement, has  obtained  a  license  under  the  vehicle  and
traffic  law,  and is engaged in the services of diagnosis, maintenance,
or repair of motor vehicles or motor vehicle engines  pursuant  to  such
franchise agreement.
(j)  "Motor  vehicle  manufacturer"  means  a  business engaged in the
manufacturing or assembling of motor vehicles.
(k) "Original equipment manufacturer" means any individual or business
that, in the normal course of business, is engaged in  the  business  of
selling  or  leasing  digital electronic equipment manufactured by or on
behalf of itself, to any individual or business.
(l) "Owner" means an  individual  or  business  that  owns  or  leases
digital electronic equipment purchased or used in this state.
(m) "Part" or "parts" means any replacement part or assembly of parts,
either new or used, made available by an original equipment manufacturer
for  purposes  of  effecting  the  services  of maintenance or repair of
digital electronic  equipment  manufactured  or  sold  by  the  original
equipment  manufacturer.  Part does not include printed board assemblies
that may allow device cloning in violation of 18 U.S.C. Section 1029  or
other applicable law.
(n)  "Tool"  means  any software program, hardware implement, or other
apparatus  used  for  diagnosis,  maintenance,  or  repair  of   digital
electronic  equipment,  including  software  or  other  mechanisms  that

provide, program, pair a part, calibrate functionality, or  perform  any
other  function  required  to repair or update the original equipment or
part back to fully functional condition.
(o)  "Repair"  means  any  act  needed  to  restore digital electronic
equipment or equipment to fully working order.
(p) "Maintenance" means any act necessary to  keep  currently  working
digital electronic equipment or equipment in fully working order.
(q)  "Diagnosis"  means the process of identifying the issue or issues
that cause digital electronic equipment or equipment to not be in  fully
working order.
(r)  "Modifications"  or  "modify"  means  any  alteration  to digital
electronic equipment that is not maintenance and not a repair.
2.  Requirements.  An  original  equipment  manufacturer  shall   make
available  to  any  independent  repair  provider  and  owner of digital
electronic equipment manufactured by or on behalf of  or  sold  by  such
original  equipment  manufacturer,  on  fair  and  reasonable terms, any
documentation, parts, and tools required for the diagnosis, maintenance,
or repair of such  digital  electronic  equipment  and  parts  that  are
manufactured  for  the first time, and first sold or used in New York on
or after July first,  two  thousand  twenty-three.  Such  documentation,
parts,  and tools shall be made available either directly by an original
equipment manufacturer or via an authorized repair provider. An original
equipment manufacturer who, in the regular course of business, offers to
an owner the services of diagnosis, maintenance or  repair  of  its  own
digital  electronic  equipment,  and  who  does  not have an arrangement
described in paragraph (a) of subdivision one of this  section  with  an
unaffiliated  individual  or business, shall be considered an authorized
repair provider with respect to such equipment.
3. Limitations. (a) Nothing in this  section  shall  be  construed  to
require  an  original equipment manufacturer to divulge any trade secret
or license any intellectual property to any owner or independent service
provider.
(b) Nothing in this section shall be construed to alter the  terms  of
any  arrangement  described  in paragraph (a) of subdivision one of this
section in force between an authorized repair provider and  an  original
equipment  manufacturer,  including, but not limited to, the performance
or provision of warranty or recall repair work by an  authorized  repair
provider  on  behalf  of  an original equipment manufacturer pursuant to
such arrangement, except that any provision in such terms that  purports
to   waive,   avoid,   restrict,   or   limit   the  original  equipment
manufacturer's obligations to comply with this section shall be void and
unenforceable.
(c) Nothing in this section shall be construed to require an  original
equipment manufacturer or an authorized repair provider to provide to an
owner  or  independent repair provider access to information, other than
documentation, that is provided by the original  equipment  manufacturer
to an authorized repair provider pursuant to the terms of an arrangement
described in paragraph (a) of subdivision one of this section.
(d)  Nothing in this section shall be construed to require an original
equipment manufacturer or authorized repair provider to  make  available
any  parts,  tools  or  documentation  for  the purposes of modifying or
making modifications to any digital electronic equipment.
(e) Nothing in this section shall be construed to require an  original
equipment  manufacturer  or authorized repair provider to make available
any  parts,  tools,  or  documentation  required  for   the   diagnosis,
maintenance,  or  repair  of public safety communications equipment, the
intended use of which is for emergency response or  prevention  purposes

by an emergency service organization such as a police, fire or emergency
medical services agency.
(f) Nothing in this section shall be construed to require any original
equipment  manufacturer  or authorized repair provider to make available
any  parts,  tools,  or  documentation  required  for   the   diagnosis,
maintenance,  or repair of digital electronic equipment in a manner that
is inconsistent with or in violation of any federal law, such as  gaming
and entertainment consoles, related software and components.
(g) Nothing in this section shall be construed to require any original
equipment  manufacturer  or authorized repair provider to make available
any  parts,  tools,  or  documentation  required  for   the   diagnosis,
maintenance,  or  repair  of  any  home  appliance  that  has  a digital
electronic product embedded within it, including, but  not  limited  to,
refrigerators,  ovens,  microwaves, air conditioning, heating units, and
security devices or alarm systems including  any  related  software  and
components.
(h)  Nothing  in  this  section  shall  prevent  an original equipment
manufacturer from establishing  reasonable  training  and  certification
programs  for  independent  repair  providers,  however,  no independent
repair provider shall be required  to  complete  any  such  training  or
certification program as a condition to be covered by the rights granted
under this chapter.
(i)  Nothing  in  this  section  shall  prevent  an original equipment
manufacturer from offering  parts,  such  as  integrated  batteries,  to
independent  repair  providers  or owners pre-assembled with other parts
rather than as individual components, where  the  individual  components
may pose a heightened safety risk if installed improperly.
(j)  Nothing  in  this  section  shall  require  an original equipment
manufacturer to make available special documentation, tools,  and  parts
that  would  disable or override anti-theft security measures set by the
owner of the equipment without the owner's authorization.
4. Exclusions. Nothing in this section shall apply to:
(a) a  motor  vehicle  manufacturer,  manufacturer  of  motor  vehicle
equipment,  or  motor  vehicle dealer acting in such capacity, or to any
product or service of a  motor  vehicle  manufacturer,  manufacturer  of
motor  vehicle  equipment,  or  motor  vehicle  dealer  acting  in  such
capacity;
(b) a medical device,  as  defined  in  this  section,  or  a  digital
electronic  product  found  in  a  medical setting including diagnostic,
monitoring, or control equipment or any product  or  service  that  they
offer; or
(c)  a  manufacturer, distributor, importer, or dealer of any off-road
(non-road) equipment, including but not limited  to,  farm  and  utility
tractors,   farm   implements,   farm   machinery,  forestry  equipment,
industrial equipment, utility equipment, construction equipment, compact
construction  equipment,  mining  equipment,  turf,  yard   and   garden
equipment,  outdoor  power  equipment  (including  portable generators),
marine, all-terrain sports and recreational vehicles  (including  racing
vehicles),  stand-alone  or  integrated  stationary  or  mobile internal
combustion engines, other power sources, (including without  limitation,
generator  sets, electric/battery and fuel cell power), power tools, and
any tools, technology, attachments, accessories, components  and  repair
parts for any of the foregoing.
(d)  commercial  and  industrial electrical equipment (including power
distribution  equipment,  such  as  medium/low  voltage  switchgear  and
transformers,  power control equipment, such as medium/low voltage motor
control and drives, power quality  equipment,  such  as  uninterruptable
power  supplies,  remote  power  panels,  power  distribution  units and

static/transfer  switches)  and  any  tools,  technology,   attachments,
accessories, components and repair parts for any of the foregoing.
(e)   an   electronic  bicycle  manufacturer,  distributor,  importer,
retailer or dealer.
5. No original equipment manufacturer or  authorized  repair  provider
shall  be  liable  for  any  damage  or  injury  caused  to  any digital
electronic equipment, person, or property which occurs as  a  result  of
repair,   diagnosis,   maintenance,  or  modification  performed  by  an
independent repair provider or owner, including but not limited to,  any
indirect,  incidental,  special  or  consequential  damages; any loss of
data,  privacy  or  profits;  or  any  inability  to  use,  or   reduced
functionality of, the digital electronic equipment.
6.  Before  repairing digital electronic equipment, independent repair
providers shall provide to any customer, and publish  on  their  website
and  the place of business, a written notice that contains the following
information:
(a) The independent  repair  provider  is  not  an  authorized  repair
provider for the equipment;
(b)  The  consumer  should  review  the  terms  and  conditions of any
warranty for the equipment, as repairs not performed  by  an  authorized
repair provider may affect the warranty;
(c)  Warranties  for  consumer  products  are  governed by the federal
Magnuson-Moss Warranty Act (15  U.S.C.  ch.  50  §  2301),  which  gives
consumers  rights and protections that apply over conflicting provisions
in the warranty;
(d) Under the Magnuson-Moss Warranty Act, a  warranty  cannot  require
that  maintenance  and repairs be performed only by an authorized repair
provider; and
(e) Under the Magnuson-Moss Warranty Act, if damage  to  equipment  is
shown  to  be  caused  by  equipment not offered or sold by the original
equipment manufacturer or by faulty repair performed by a non-authorized
repair provider, that damage may not be covered by the warranty, but the
warranty may otherwise remain in effect.
7. Enforcement by the attorney  general.  (a)  Whenever  the  attorney
general shall believe from evidence satisfactory to the attorney general
that  any  person, firm, corporation or association or agent or employee
thereof has engaged in or is about to engage in any acts or practices in
violation of this section, the attorney general may bring an  action  in
the  name and on behalf of the people of the state of New York to enjoin
such unlawful acts or practices and to obtain restitution of any  moneys
or  property  obtained  directly  or  indirectly  by  any  such  acts or
practices in violation of this section. In such  proceeding  preliminary
relief  may  be  granted under article sixty-three of the civil practice
law and rules.
(b) Except as provided herein, before any violation of this section is
sought to be enjoined, the attorney  general  shall  give  such  person,
firm,  corporation,  or  association  against  whom  such  proceeding is
contemplated notice and an opportunity to show in writing,  within  five
business  days after the delivery of such notice, why proceedings should
not  be  instituted  against  such   person,   firm,   corporation,   or
association.  Such  notice by the attorney general shall be delivered by
certified mail and by first-class mail with proof  of  mailing.  In  any
proceeding  in which the attorney general seeks preliminary relief, such
notice shall not be required upon a finding by the attorney general that
such notice and opportunity is not in the public interest.
(c) In connection with any proposed proceeding under this section, the
attorney general is authorized to take proof and make a determination of

the relevant facts, and to issue subpoenas in accordance with the  civil
practice law and rules.
(d)  This subdivision shall apply to all acts or practices declared to
be in violation of this section, whether or not subject to any other law
of this state, and shall not supersede, amend or repeal any other law of
this state under which the attorney general is authorized  to  take  any
action or conduct any inquiry.
(e)  Any person, firm, corporation or association or agent or employee
thereof who engages in any  acts  or  practices  in  violation  of  this
section shall be liable to a civil penalty of not more than five hundred
dollars  for each violation, which shall accrue to the state of New York
and may be recovered in a civil action brought by the attorney general.
(f) Except in the instance of a dispute arising  between  an  original
equipment  manufacturer  and  an  authorized  repair provider related to
either party's compliance with an existing authorized repair  agreement,
an  authorized  repair  provider  shall have all the rights and remedies
provided in this section.