Uniform Law Source: None

1. Nature of an Access Contract. This section deals with "access" contracts. Access contracts come in two types. In one, access and contract occur essentially at the same time and there is no on-going relationship between the parties. In the other, a continuous access contract, the licensee has a right to intermittent access at times of its own choosing within the time period of agreed availability. This relationship is illustrated by on-line services such as Westlaw and Lexis. The transaction is not only that the transferee receives the functionality or the information, but that the subject matter be accessible on a consistent basis. A continuous access contract is unlike installment contracts under Article 2 which are segmented into tender-acceptance sequences. Often, the licensor here merely keeps the system on-line and available for the licensee to access when it chooses.

2. Basic Obligation. The contract obligation in a continuous access contract is an obligation to make and keep the system available in a reasonable manner consistent with the contract. As indicated in subsection (a)(3), availability standards are subject to contractual specification, but in the absence of contract terms, the appropriate reference is to general standards of the industry involving the particular type of transaction. Thus, a contract involving access to a news and information service would have different accessibility expectations than would a contract to provide remote access to systems for processing air traffic control data. See Reuters Ltd. v. UPI, Inc., 903 F.2d 904 (2d Cir. 1990); Kaplan v. Cablevision of Pa., Inc., 448 Pa. Super. 306, 671 A.2d 716 (Pa. Super. 1996).

3. Content Changes. Subsection (a)(1) outlines an important default rule with respect to the treatment of information obtained through an access contract. The access arrangement does not bind the provider of access to making available specific configurations of information unless the express contract terms require this. This is a significant default rule in reference to multi-element commercial databases provided to licensees by electronic access.

4. Use of Received Information. Subsection (a)(2) deals with use restrictions. Unless there are terms dealing with restrictions on use of the information obtained through access, information obtained by access is received on an unrestricted basis, subject only to intellectual property rights. Thus, for example, if an access contract merely enables access to news articles, but does not limit their use by the licensee, no limitation exists other than as applied under copyright law. In contrast, if the agreement contains license restrictions on use of the articles obtained by the access, those terms would be governed under Article 2B.

Under the proposed deletion of former (a)(3), this Section takes no position and creates no default rule regarding the licensee's ability to make permanent copies of the information accessed.

5. In an on-going or continuous access contract, the transferee may receive substantial value before or despite problems in the overall transaction. The remedies provide for a concept of partial performance. For example, the fact that a company continues to use a remote access database processing system for several years while encountering problems and seeking a replacement system, may allow it to reject the future terms of the contract, but leaves the transferee responsible for the past value received. Hospital Computer Systems, Inc. v. Staten Island Hospital, 788 F. Supp. 1351 (D.N.J. 1992).