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This is an unofficial draft of Article 2B from April 15, 1998. For the current official version, see the University of Pennsylvania Law School (Official NCCUSL) site at http://www.law.upenn.edu/library/ulc/ulc.htm SECTION 2B-616. CORRECTION AND SUPPORT CONTRACTS. (a) If a person agrees to correct performance problems or provide similar services, the following rules apply: (1) If the services are part of a limited contractual remedy in an agreement for the information between the parties, the licensor undertakes that its performance will provide the licensee with information that conforms to that agreement. (2) In cases not covered by paragraph (1), a person that agrees to correct performance problems or provide similar services with respect to information that has been accepted by the licensee shall perform at a time and place and with a quality consistent with the express terms of the agreement and, to the extent not dealt with by the express terms, in a workmanlike manner and with a quality that is reasonable in light of ordinary standards of the business, trade, or industry. The person does not warrant that its services will correct all performance problems unless the agreement expressly so provides. (b) A licensor is not required to provide instruction or other support for the licensee's use of information or licensed access. If a person agrees to provide support , the person shall make the support available in a manner and with a quality consistent with the express terms of the support agreement and, to the extent not dealt with by the agreement, in a workmanlike manner and with a quality that is reasonable in light of the ordinary standards of the business, trade, or industry. Uniform Law Source: Restatement (Second) of Torts § 299A.Reporter's Notes: 1. Nature of the Obligation. The section deals with obligations to correct performance problems and to provide support. It does not deal with questions about infringement or third party rights claims. Obligations to correct performance problems are different from an obligation to provide updates or enhanced versions. In modern practice, contracts to provide updates, generally described as maintenance contracts in the software industry, are a source of revenue for software providers. Under Section 2B-310, no implied obligation exists to provide updates or new versions. The reference to error corrections covers contracts where, for example, a vendor agrees to be available to come on site and correct or attempt to correct bugs in the software for a separate fee. This type of agreement is a services contract. The other type of agreement occurs when, for example, a vendor contracts to make available to the licensee new versions of the software developed for general distribution. Often, the new versions cure problems that earlier versions encountered and the two categories of contract overlap. Yet, here we are dealing with new products . 3. Services Obligation. Contracts to correct problems are services contracts. The primary performance obligation is stated in subsection (a)(2). The obligation here is simply the obligation that any other services provider would undertake: a duty to exercise reasonable care and effort to complete the task. A services provider does not typically guaranty that its services yield a perfect result. The standard reflects a theme of "ordinariness" that provides default performance rule throughout the chapter. It measures a party's performance commitment by reference to standards of the relevant trade or industry. 4. Services in Lieu of Warranty. Subsection (a)(1) recognizes an important alternative formulation of the provider's obligations. It deals with situations in which the circumstances indicate that promissor agrees to a particular outcome, as contrasted to the ordinary case where the contract entails a services contract requiring effort. The obligation arises if the repair/ correction obligation is set out as part of a limited remedy in lieu of a warranty. The prototype is the classic "replace or repair" warranty. When the obligation to correct errors arises in that context, the obligation is to complete a product that conforms to the contract. 5. Subsection (b) provides a default rule regarding support agreements. As another form of services contract, the appropriate standard is a workmanlike effort obligation consistent with reasonable standards of the industry. |