(a) A term that measures the quantity or amount of use by the output of the licensor or the requirements of the licensee means such actual output or requirements as may occur in good faith. No quantity or amount of use unreasonably disproportionate to a stated estimate or, in the absence of a stated estimate, to any normal or otherwise comparable prior output or requirements may be tendered or demanded, but this limitation does not apply if the party in good faith has no output or requirements.

(b) A lawful agreement for exclusive dealing in the kind of information or informational property rights concerned imposes an obligation by on a licensor that is the exclusive supplier to use good faith efforts to supply the information and by on a licensee that is the exclusive distributor to use good faith efforts to promote the information commercially.

Uniform Statutory Source: Section 2-306.

"Agreement". Section 1-201."Good faith". Section 2B-102. "Information". Section 2B-102. "Licensee". Section 2B-102. "Licensor". Section 2B-102. "Party". Section 1-201. "Term". Section 1-201.

1. Voted unanimously to approve the section in principle. (Oct. 1996)

1. Out-put and Requirements. Subsection (a) adopts existing Article 2. In practice, however, many information transactions that would come within its scope do not involve issues about "quantity" in the same way that sales (or leases) entail that issue. Courts must recognize and adjust their approach to this fact. A prime characteristic of information as a subject matter of a transaction lies in the fact that the information is subject to reproduction and use in relatively unlimited numbers; the goods on which they may be copied are often the least significant aspect of a commercial deal. Rather than supply needs or sell output, the typical approach would be to license the commercial user to use the information subject to an obligation to pay royalties based on the volume or other measurable quantity figure.

2. Exclusive Dealing. Subsection (b) accommodates the various bodies of law that pertain to exclusive dealing relationships in information. Unlike for goods, the typical case here does not necessarily entail production and delivery of copies for resale by the other party. Case law dealing with patent licensing creates a best efforts default rule subject to consideration of the terms of the license and whether adequate compensation is received by the patent holder without such effort by the licensee.. Article 2-306 creates a best efforts rule for goods. That rule, however, is not the law in other fields governed by Article 2B. In any event, the best effort standard has been difficult if not impossible to define with reliability.

This Section adopts a good faith effort standard: honesty in fact and adherence to commercial standards of fair dealing. This allows courts to draw appropriate balances in light of the commercial context and the existing traditions of that context in the atypical case where the contract is silent on the issue.