CHAPTER 51-24
ASSISTIVE TECHNOLOGY DEVICE WARRANTIES
51-24-01. Definitions. In this chapter, unless the context otherwise requires:
1.
"Assistive technology device" means any item, piece of equipment, or product<br>system that a consumer purchases or accepts transfer of in this state and which is<br>used to increase, maintain, or improve the functional capabilities of individuals with<br>disabilities.
a.
The term includes:
(1)
Manual wheelchairs, motorized wheelchairs, motorized scooters, and<br>other aids that enhance the mobility or positioning of an individual, such<br>as positioning features, the switches and controls for any motorized or<br>nonmotorized features, and hydraulic or nonhydraulic lifts or elevators<br>designed to transport an individual from one location or level to another<br>in private personal vehicles or private residences.
(2)
Telephone communication devices for the deaf, assistive listening<br>devices, and other aids that enhance an individual's ability to hear,<br>except for hearing instruments excluded by subdivision b.
(3)
Voice-synthesized computer modules, optical scanners, talking software,<br>braille printers, artificial larynges, voice amplification devices, alternative<br>augmentative communication devices, and other devices that enhance<br>an individual's ability to communicate, except for those items excluded by<br>subdivision b.
(4)
Voice
recognition
computer
equipment,
software
and
hardware
accommodations, switches, and other forms of alternative access to<br>computers.
(5)
Adapted environmental control units.
(6)
Any other assistive device, instrument, apparatus, or any component,<br>part, or accessory that enables an individual with a disability to perform<br>tasks such as communicating, speaking, seeing, hearing, maneuvering,<br>moving, walking, standing, reaching, grasping, working, sleeping,<br>learning, or caring for oneself, or which is used or intended to be used to<br>assist, affect, or replace the structure or any function of the body of an<br>individual with a disability, except for those items excluded by<br>subdivision b.
b.
The term does not include:
(1)
Devices that are modified or customized pursuant to consumer design<br>and specifications;
(2)
Hearing instruments as defined in subsection 2 of section 43-33-01;
(3)
Eyeglasses;
(4)
A surgical implant performed by a physician or surgeon; or
(5)
A restoration or dental prosthesis provided by a dentist.
2.
"Commercial lessor" means a person who is in the business of leasing assistive<br>technology devices to consumers or who holds the lessor's rights.
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3.
"Commercial seller" means a person who is in the business of selling or<br>manufacturing assistive technology devices.
4.
"Consumer" means:
a.
The purchaser of an assistive technology device from a commercial seller for<br>personal use;
b.
A person to whom an assistive technology device is transferred for personal<br>use when all express warranties have not yet expired;
c.
A person who may enforce the warranty on an assistive technology device;
d.
A person who leases an assistive technology device from a commercial lessor;<br>or
e.
The parent or guardian of a person who is a consumer under subdivisions a<br>through d.
5.
a.
"In need of repair" means:
(1)
A specific condition, generic defect, or malfunction that substantially<br>impairs the use, value, or safety of an assistive technology device or any<br>of its component parts; or
(2)
The assistive technology device or a component of the assistive<br>technology device fails to conform to:
(a)
Any applicable express warranties; or
(b)
Any
implied
warranties
including
the
implied
warranty
of
merchantability described in section 41-02-31 and the implied<br>warranty of fitness for a particular purpose described in section<br>41-02-32.
b.
The term does not include a condition or defect that is the result of abuse or<br>unforeseen alteration of the assistive technology device by the consumer.
6.
"Loaner" means an assistive technology device that is loaned to the user without<br>charge while repairs are made to the user's assistive technology device. A loaner<br>must:
a.
Be in good working order;
b.
Perform the essential functions of the assistive technology device that is being<br>repaired, considering the needs of the user; and
c.
Not create a threat to the safety of the user.
7.
"Manufacturer" means:
a.
A person who manufactures or assembles assistive technology devices;
b.
A person who manufactures or assembles any part of an assistive technology<br>device; and
c.
All persons involved in the manufacture, distribution, or sales of assistive<br>technology devices up to the final retail seller or commercial lessor.
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8.
"Reasonable attempt to repair" means that, within one year after first delivery of the<br>assistive technology device to a consumer or within the life of an express warranty,<br>whichever is longer:
a.
The assistive technology device is presented to the commercial seller in need<br>of repair at least four times and it is again in need of repair; or
b.
The assistive technology device is in need of repair and available to the seller<br>for repair for at least thirty days. These thirty days may be consecutive or<br>nonconsecutive.
9.
"Transaction costs" means expenses caused by a covered repair including the costs<br>of a loaner.
51-24-02. Express written warranties for assistive technology devices.
1.
A manufacturer who sells an assistive technology device to a consumer, either<br>directly or through another commercial seller, shall furnish the consumer with an<br>express written warranty to preserve and maintain the utility and performance of the<br>assistive technology device.
2.
The express written warranty must be in effect for at least one year after first delivery<br>of the assistive technology device to the consumer.
3.
If a manufacturer fails to furnish an express written warranty to the consumer, the<br>assistive technology device must be covered by an express warranty that meets the<br>requirements of this section.
4.
An express written warranty must guarantee that the assistive technology device:
a.
Has no defects in parts or performance; and
b.
Is free from any condition and defect that would substantially impair the<br>device's use, value, or safety to the consumer.
51-24-03. Warranty claims.
1.
A consumer may present a warranty claim for an assistive technology device by:
a.
Reporting the warranty problem to the manufacturer, the commercial lessor, or<br>the commercial seller within the life of the express warranty; and
b.
Making
the
assistive
technology
device
reasonably
available
to
the
manufacturer, the commercial lessor, or the commercial seller for repair.
2.
If the terms of a warranty are invoked and a warranty claim is made, the assistive<br>technology device must be repaired at no charge to the consumer, including parts,<br>labor, shipping, delivery, and all other costs, regardless of whether the repairs are<br>made after the expiration of the warranty period.
3.
The commercial seller or the commercial lessor shall provide the consumer with a<br>loaner and with reimbursement for transaction costs to the consumer from the<br>repair:
a.
If the repair period is expected to be at least ten days; or
b.
If the repair period is not expected to be ten days but actually is ten days or<br>more.
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4.
The costs of any warranty repair, loaner, or transaction costs due the consumer from<br>the repair are to be borne in the first instance by the commercial seller or<br>commercial lessor. The commercial seller and the commercial lessor may have<br>rights to reimbursement or compensation from the manufacturer or other prior<br>parties in the sales or distribution chain. Those rights of the commercial seller or<br>commercial lessor are not affected by this chapter.
51-24-04. Remedies - Sales.
1.
If, after a reasonable attempt to repair by the commercial seller or manufacturer, the<br>assistive technology device is not repaired, the warranty is considered breached.
2.
If the warranty is breached, the consumer may return the assistive technology<br>device to the commercial seller that sold the device and the consumer may choose<br>to either:
a.
Receive a new replacement assistive technology device from the commercial<br>seller and be reimbursed by the commercial seller for transaction costs; or
b.
Receive a full refund of the purchase price plus any finance charges from the<br>commercial seller and be reimbursed by the commercial seller for transaction<br>costs.
3.
The following conditions apply to the remedies in this section:
a.
The commercial seller is allowed up to thirty days after return of the original<br>assistive technology device to pay transaction costs to the consumer and to<br>provide the consumer with either a new replacement assistive technology<br>device or a full refund of the purchase price plus any finance charges.
b.
If a new replacement assistive technology device is not provided or if a full<br>refund is not paid when the consumer returns the original assistive technology<br>device, the commercial seller must provide a loaner to the consumer to use<br>until the commercial seller has provided to the consumer a new replacement<br>assistive technology device or a full refund of the purchase price plus any<br>finance charges.
c.
The consumer may not be required to deal directly with any person other than<br>the commercial seller that sold the assistive technology device. If agreeable,<br>the consumer may deal with the manufacturer or other prior parties in the sales<br>or distribution chain.
If the commercial seller is no longer selling assistive
technology devices, the consumer may deal with the seller's successor.
d.
The costs of a new replacement assistive technology device, a full refund, any<br>loaner, and transaction costs due the consumer are to be borne in the first<br>instance by the commercial seller. The commercial seller may have rights to<br>reimbursement or compensation from the manufacturer or other prior parties in<br>the sales or distribution chain. Those rights of the commercial seller are not<br>affected by this chapter.
51-24-05. Remedies - Leases.
1.
If, after a reasonable attempt to repair by the commercial lessor or manufacturer, the<br>assistive technology device is not repaired, the warranty is considered breached.
2.
If the warranty is breached, the consumer may return the assistive technology<br>device to the commercial lessor that leased the device and the consumer may<br>choose to either:
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a.
Receive a new replacement assistive technology device from the commercial<br>lessor; or
b.
Receive a full refund from the commercial lessor of all moneys paid under the<br>lease, including all finance charges.
3.
The following conditions apply to the remedies in this section:
a.
The commercial lessor is allowed up to thirty days after return of the original<br>assistive technology device to provide to the consumer either a new<br>replacement assistive technology device or a full refund of all moneys paid<br>under the lease, including any finance charges.
b.
If a new replacement assistive technology device is not provided or if a full<br>refund is not paid when the consumer returns the original assistive technology<br>device, the commercial lessor shall provide a loaner to the consumer to use<br>until the lessor has provided to the consumer a new replacement assistive<br>technology device or a full refund of all moneys paid under the lease, including<br>any finance charges.
c.
The consumer may not recover transaction costs and the commercial lessor<br>may not recover for use of the assistive technology device before the return of<br>the device on a warranty claim.
d.
The consumer may not be required to deal directly with any person other than<br>the commercial lessor that leased the assistive technology device.
If
agreeable, the consumer may deal with the manufacturer or other prior parties<br>in the leasing, sales, or distribution chain. If the commercial lessor is no longer<br>dealing in assistive technology devices, the consumer may deal with the<br>lessor's successor.
e.
The costs of a new replacement assistive technology device, a full refund, and<br>any loaner are to be borne in the first instance by the commercial lessor. The<br>commercial lessor may have rights to reimbursement or compensation from the<br>manufacturer or other prior parties in the leasing, sales, or distribution chain.<br>Those rights of the commercial lessor are not affected by this chapter.
51-24-06. Thirty-day return. A commercial seller or commercial lessor who sells or
leases an assistive technology device to a consumer may not refuse to accept a return of the<br>assistive technology device within thirty days after the purchase or lease if the assistive<br>technology device has not met the needs of the consumer.
51-24-07. Sale or lease of a returned assistive technology device.
No assistive
technology device returned by a consumer or lessor may be sold or leased again in this state<br>unless full disclosure of the reasons for the return of the device is made to the consumer.
51-24-08. Other remedies - Penalties.
1.
This chapter does not limit rights or remedies available to a consumer under any<br>other law or contract.
2.
Any waiver of rights by a consumer under this chapter, any waiver of the implied<br>warranty of merchantability for an assistive technology device, and any waiver of the<br>implied warranty of fitness for a particular purpose for an assistive technology device<br>is void.
3.
In addition to pursuing any other remedy, a consumer may bring an action to recover<br>for any damages caused by a violation of this chapter. The court shall award a<br>consumer who prevails in an action to recover damages caused by a violation of this
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chapter twice the amount of any pecuniary loss together with costs, disbursements,<br>reasonable attorney's fees, and any equitable relief that the court finds appropriate.
4.
Any right to bring a class action under this chapter is properly regulated by the<br>judiciary. The supreme court, acting in its rulemaking capacity or otherwise, has full<br>authority under the Constitution of North Dakota to regulate class actions.
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Document Outline
chapter 51-24 assistive technology device warranties
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