2006 Code of Virginia § 59.1-501.2 - Definitions

59.1-501.2. Definitions.

(a) As used in this chapter:

(1) "Access contract" means a contract to obtain by electronic means accessto, or information from, an information processing system of another person,or the equivalent of such access.

(2) "Access material" means any information or material, such as adocument, address, or access code, that is necessary to obtain authorizedaccess to information or control or possession of a copy.

(3) "Aggrieved party" means a party entitled to a remedy for breach ofcontract.

(4) "Agreement" means the bargain of the parties in fact as found in theirlanguage or by implication from other circumstances, including course ofperformance, course of dealing, and usage of trade as provided in thischapter.

(5) "Attribution procedure" means a procedure to verify that an electronicauthentication, display, message, record, or performance is that of aparticular person or to detect changes or errors in information. The termincludes a procedure that requires the use of algorithms or other codes,identifying words or numbers, encryption, or callback or other acknowledgment.

(6) "Authenticate" means (i) to sign or (ii) with the intent to sign arecord, to execute or adopt an electronic symbol, sound, message, or processreferring to, attached to, included in, or logically associated or linkedwith, that record.

(7) "Automated transaction" means a transaction in which a contract isformed in whole or part by electronic actions of one or both parties that arenot previously reviewed by an individual in the ordinary course.

(8) "Cancellation" means the ending of a contract by a party because ofbreach of contract by another party.

(9) "Computer" means an electronic device that accepts information indigital or similar form and manipulates it for a result based on a sequenceof instructions.

(10) "Computer information" means information in electronic form that isobtained from or through the use of a computer or that is in a form capableof being processed by a computer. The term includes a copy of the informationand any documentation or packaging associated with the copy.

(11) "Computer information transaction" means an agreement or theperformance of it to create, modify, transfer, or license computerinformation or informational rights in computer information. The termincludes a support contract under 59.1-506.12. The term does not include atransaction merely because the parties' agreement provides that theircommunications about the transaction will be in the form of computerinformation.

(12) "Computer program" means a set of statements or instructions to beused directly or indirectly in a computer to bring about a certain result.The term does not include separately identifiable informational content.

(13) "Consequential damages" resulting from breach of contract includes (i)any loss resulting from general or particular requirements and needs of whichthe breaching party at the time of contracting had reason to know and whichcould not reasonably be prevented, and (ii) any injury to an individual ordamage to property other than the subject matter of the transactionproximately resulting from breach of warranty. The term does not includedirect damages or incidental damages.

(14) "Conspicuous," with reference to a term, means so written, displayed,or presented that a reasonable person against which it is to operate ought tohave noticed it. A term in an electronic record intended to evoke a responseby an electronic agent is conspicuous if it is presented in a form that wouldenable a reasonably configured electronic agent to take it into account orreact to it without review of the record by an individual. With respect to aperson, conspicuous terms include (i) a heading in capitals in a size equalto or greater than, or in contrasting type, font, or color to, thesurrounding text, (ii) language in the body of a record or display in largeror other contrasting type, font, or color or set off from the surroundingtext by symbols or other marks that draw attention to the language, and (iii)a term prominently referenced in an electronic record or display which isreadily accessible or reviewable from the record or display. With respect toa person or an electronic agent, conspicuous terms include a term, orreference to a term, that is so placed in a record or display that the personor electronic agent cannot proceed without taking action with respect to theparticular term or reference.

(15) "Consumer" means an individual who is a licensee of information orinformational rights that the individual at the time of contracting intendedto be used primarily for personal, family, or household purposes. The termdoes not include an individual who is a licensee primarily for professionalor commercial purposes, including agriculture, business management, andinvestment management other than management of the individual's personal orfamily investments.

(16) "Consumer contract" means a contract between a merchant licensor and aconsumer.

(17) "Contract" means the total legal obligation resulting from theparties' agreement as affected by this chapter and other applicable law.

(18) "Contract fee" means the price, fee, rent, or royalty payable in acontract under this chapter or any part of the amount payable.

(19) "Contractual use term" means an enforceable term that defines orlimits the use, disclosure of, or access to licensed information orinformational rights, including a term that defines the scope of a license.

(20) "Copy" means the medium on which information is fixed on a temporaryor permanent basis and from which it can be perceived, reproduced, used, orcommunicated, either directly or with the aid of a machine or device.

(21) "Course of dealing" means a sequence of previous conduct between theparties to a particular transaction which establishes a common basis ofunderstanding for interpreting their expressions and other conduct.

(22) "Course of performance" means repeated performances, under a contractthat involves repeated occasions for performance, which are accepted oracquiesced in without objection by a party having knowledge of the nature ofthe performance and an opportunity to object to it.

(23) "Court" includes an arbitration or other dispute-resolution forum ifthe parties have agreed to use of that forum or its use is required by law.

(24) "Delivery," with respect to a copy, means the voluntary physical orelectronic transfer of possession or control.

(25) "Direct damages" means compensation for losses measured by 59.1-508.8 (b) (1) or 59.1-508.9 (a) (1). The term does not includeconsequential damages or incidental damages.

(26) "Electronic" means relating to technology having electrical, digital,magnetic, wireless, optical, electromagnetic, or similar capabilities.

(27) "Electronic agent" means a computer program, or electronic or otherautomated means, used independently to initiate an action, or to respond toelectronic messages or performances, on the person's behalf without review oraction by an individual at the time of the action or response to the messageor performance.

(28) "Electronic message" means a record or display that is stored,generated, or transmitted by electronic means for the purpose ofcommunication to another person or electronic agent.

(29) "Financial accommodation contract" means an agreement under which aperson extends a financial accommodation to a licensee and which does notcreate a security interest governed by Title 8.9A. The agreement may be inany form, including a license or lease.

(30) "Financial services transaction" means an agreement that provides for,or a transaction that is, or entails access to, use, transfer, clearance,settlement, or processing of:

(A) a deposit, loan, funds, or monetary value represented in electronic formand stored or capable of storage by electronic means and retrievable andtransferable by electronic means, or other right to payment to or from aperson;

(B) an instrument or other item;

(C) a payment order, credit card transaction, debit card transaction, fundstransfer, automated clearing house transfer, or similar wholesale or retailtransfer of funds;

(D) a letter of credit, document of title, financial asset, investmentproperty, or similar asset held in a fiduciary or agency capacity; or

(E) related identifying, verifying, access-enabling, authorizing, ormonitoring information.

(31) "Financier" means a person that provides a financial accommodation toa licensee under a financial accommodation contract and either (i) becomes alicensee for the purpose of transferring or sublicensing the license to theparty to which the financial accommodation is provided or (ii) obtains acontractual right under the financial accommodation contract to preclude thelicensee's use of the information or informational rights under a license inthe event of breach of the financial accommodation contract. The term doesnot include a person that selects, creates, or supplies the information thatis the subject of the license, owns the informational rights in theinformation, or provides support for, modifications to, or maintenance of theinformation.

(32) "Good faith" means honesty in fact and the observance of reasonablecommercial standards of fair dealing.

(33) "Goods" means all things that are movable at the time relevant to thecomputer information transaction. The term includes the unborn young ofanimals, growing crops, and other identified things to be severed from realtywhich are covered by 8.2-107. The term does not include computerinformation, money, the subject matter of foreign exchange transactions,documents, letters of credit, letter-of-credit rights, instruments,investment property, accounts, chattel paper, deposit accounts, or generalintangibles.

(34) "Incidental damages" resulting from breach of contract:

(A) means compensation for any commercially reasonable charges, expenses, orcommissions reasonably incurred by an aggrieved party with respect to (i)inspection, receipt, transmission, transportation, care, or custody ofidentified copies or information that is the subject of the breach; (ii)stopping delivery, shipment, or transmission; (iii) effecting cover orretransfer of copies or information after the breach; (iv) other effortsafter the breach to minimize or avoid loss resulting from the breach; and (v)matters otherwise incident to the breach; and

(B) does not include consequential damages or direct damages.

(35) "Information" means data, text, images, sounds, mask works, orcomputer programs, including collections and compilations of them.

(36) "Information processing system" means an electronic system forcreating, generating, sending, receiving, storing, displaying, or processinginformation.

(37) "Informational content" means information that is intended to becommunicated to or perceived by an individual in the ordinary use of theinformation, or the equivalent of that information.

(38) "Informational rights" include all rights in information created underlaws governing patents, copyrights, mask works, trade secrets, trademarks,publicity rights, or any other law that gives a person, independently ofcontract, a right to control or preclude another person's use of or access tothe information on the basis of the rights holder's interest in theinformation.

(39) "Insurance services transaction" means an agreement between an insurerand an insured that provides for, or a transaction that is or entails accessto, use, transfer, clearance, settlement, or processing of:

(A) an insurance policy, contract, or certificate; or

(B) a right to payment under an insurance policy, contract or certificate.

(40) "Knowledge," with respect to a fact, means actual knowledge of thefact.

(41) "License" means a contract that authorizes access to, or use,distribution, performance, modification, or reproduction of, information orinformational rights, but expressly limits the access or uses authorized orexpressly grants fewer than all rights in the information, whether or not thetransferee has title to a licensed copy. The term includes an accesscontract, a lease of a computer program, and a consignment of a copy. Theterm does not include a reservation or creation of a security interest to theextent the interest is governed by Title 8.9A.

(42) "Licensee" means a person entitled by agreement to acquire or exerciserights in, or to have access to or use of, computer information under anagreement to which this chapter applies. A licensor is not a licensee withrespect to rights reserved to it under the agreement.

(43) "Licensor" means a person obligated by agreement to transfer or createrights in, or to give access to or use of, computer information orinformational rights in it under an agreement to which this chapter applies.Between the provider of access and a provider of the informational content tobe accessed, the provider of content is the licensor. In an exchange ofinformation or informational rights, each party is a licensor with respect tothe information, informational rights, or access it gives.

(44) "Mass-market license" means a standard form used in a mass-markettransaction.

(45) "Mass-market transaction" means a transaction that is:

(A) a consumer contract; or

(B) any other transaction with an end-user licensee if:

(i) the transaction is for information or informational rights directed tothe general public as a whole, including consumers, under substantially thesame terms for the same information;

(ii) the licensee acquires the information or informational rights in aretail transaction under terms consistent with an ordinary transaction in aretail market; and

(iii) the transaction is not (a) a contract for redistribution or for publicperformance or public display of a copyrighted work; (b) a transaction inwhich the information is customized or otherwise specially prepared by thelicensor for the licensee, other than minor customization using a capabilityof the information intended for that purpose; (c) a site license; or (d) anaccess contract.

(46) "Merchant" means a person:

(A) who deals in information or informational rights of the kind involved inthe transaction;

(B) who by the person's occupation holds himself out as having knowledge orskill peculiar to the relevant aspect of the business practices orinformation involved in the transaction; or

(C) to whom the knowledge or skill peculiar to the practices or informationinvolved in the transaction may be attributed by the person's employment ofan agent or broker or other intermediary who by his occupation holds himselfout as having the knowledge or skill.

(47) "Nonexclusive license" means a license that does not preclude thelicensor from transferring to other licensees the same information,informational rights, or contractual rights within the same scope. The termincludes a consignment of a copy.

(48) "Notice" of a fact means knowledge of the fact, receipt ofnotification of the fact, or reason to know the fact exists.

(49) "Notify" or "give notice" means to take such steps as may bereasonably required to inform the other person in the ordinary course,whether or not the other person actually comes to know of it.

(50) "Party" means a person that engages in a transaction or makes anagreement under this chapter.

(51) "Person" means an individual, corporation, business trust, estate,trust, partnership, limited liability company, association, joint venture,governmental subdivision, instrumentality, or agency, public corporation, orany other legal or commercial entity.

(52) "Published informational content" means informational content preparedfor or made available to recipients generally, or to a class of recipients,in substantially the same form. The term does not include informationalcontent that is (i) customized for a particular recipient by one or moreindividuals acting as or on behalf of the licensor, using judgment orexpertise or (ii) provided in a special relationship of reliance between theprovider and the recipient.

(53) "Receipt" means:

(A) with respect to a copy, taking delivery; or

(B) with respect to a notice:

(i) coming to a person's attention; or

(ii) being delivered to and available at a location or system designated byagreement for that purpose or, in the absence of an agreed location orsystem: (a) being delivered at the person's residence, or the person's placeof business through which the contract was made, or at any other place heldout by the person as a place for receipt of communications of the kind; or(b) in the case of an electronic notice, coming into existence in aninformation processing system or at an address in that system in a formcapable of being processed by or perceived from a system of that type by arecipient, if the recipient uses, or otherwise has designated or holds out,that place or system for receipt of notices of the kind to be given and thesender does not know that the notice cannot be accessed from that place.

(54) "Receive" means to take receipt.

(55) "Record" means information that is inscribed on a tangible medium orthat is stored in an electronic or other medium and is retrievable inperceivable form.

(56) "Release" means an agreement by a party not to object to, or exerciseany rights or pursue any remedies to limit, the use of information orinformational rights which agreement does not require an affirmative act bythe party to enable or support the other party's use of the information orinformational rights. The term includes a waiver of informational rights.

(57) "Return," with respect to a record containing contractual terms thatwere rejected, refers only to the computer information and means:

(A) in the case of a licensee that rejects a record regarding a singleinformation product transferred for a single contract fee, a right toreimbursement of the contract fee paid from the person to which it was paidor from another person that offers to reimburse that fee, on (i) submissionof proof of purchase and (ii) proper redelivery of the computer informationand all copies within a reasonable time after initial delivery of theinformation to the licensee;

(B) in the case of a licensee that rejects a record regarding an informationproduct provided as part of multiple information products integrated into andtransferred as a bundled whole but retaining their separate identity:

1. a right to reimbursement of any portion of the aggregate contract feeidentified by the licensor in the initial transaction as charged to thelicensee for all bundled information products which was actually paid, on (i)rejection of the record before or during the initial use of the bundledproduct; (ii) proper redelivery of all computer information products in thebundled whole and all copies of them within a reasonable time after initialdelivery of the information to the licensee; and (iii) submission of proof ofpurchase; or

2. a right to reimbursement of any separate contract fee identified by thelicensor in the initial transaction as charged to the licensee for theseparate information product to which the rejected record applies, on (i)submission of proof of purchase and (ii) proper redelivery of that computerinformation product and all copies within a reasonable time after initialdelivery of the information to the licensee; or

(C) in the case of a licensor that rejects a record proposed by the licensee,a right to proper redelivery of the computer information and all copies fromthe licensee, to stop delivery or access to the information by the licensee,and to reimbursement from the licensee of amounts paid by the licensor withrespect to the rejected record, on reimbursement to the licensee of contractfees that it paid with respect to the rejected record, subject to recoupmentand setoff.

(58) "Scope," with respect to terms of a license, means:

(A) the licensed copies, information, or informational rights involved;

(B) the use or access authorized, prohibited, or controlled;

(C) the geographic area, market, or location; or

(D) the duration of the license.

(59) "Seasonable," with respect to an act, means taken within the timeagreed or, if no time is agreed, within a reasonable time.

(60) "Send" means, with any costs provided for and properly addressed ordirected as reasonable under the circumstances or as otherwise agreed, todeposit a record in the mail or with a commercially reasonable carrier, todeliver a record for transmission to or re-creation in another location orinformation processing system, or to take the steps necessary to initiatetransmission to or re-creation of a record in another location or informationprocessing system. In addition, with respect to an electronic message, themessage must be in a form capable of being processed by or perceived from asystem of the type the recipient uses or otherwise has designated or held outas a place for the receipt of communications of the kind sent. Receipt withinthe time in which it would have arrived if properly sent, has the effect of aproper sending.

(61) "Standard form" means a record or a group of related recordscontaining terms prepared for repeated use in transactions and so used in atransaction in which there was no negotiated change of terms by individualsexcept to set the price, quantity, method of payment, selection amongstandard options, or time or method of delivery.

(62) "State" means a State of the United States, the District of Columbia,Puerto Rico, the United States Virgin Islands, or any territory or insularpossession subject to the jurisdiction of the United States.

(63) "Term," with respect to an agreement, means that portion of theagreement that relates to a particular matter.

(64) "Termination" means the ending of a contract by a party pursuant to apower created by agreement or law otherwise than because of breach ofcontract.

(65) "Transfer" :

(A) with respect to a contractual interest, includes an assignment of thecontract, but does not include an agreement merely to perform a contractualobligation or to exercise contractual rights through a delegate orsublicensee; and

(B) with respect to computer information, includes a sale, license, or leaseof a copy of the computer information and a license or assignment ofinformational rights in computer information.

(66) "Usage of trade" means any practice or method of dealing that has suchregularity of observance in a place, vocation, or trade as to justify anexpectation that it will be observed with respect to the transaction inquestion.

(b) The following definitions in other titles apply to this chapter:

(1) "Burden of establishing" 8.1A-201.

(2) "Document of title" 8.1A-201.

(3) "Financial asset" 8.8A-102.

(4) "Funds transfer" 8.4A-104.

(5) "Identification" to the contract 8.2-501.

(6) "Instrument" 8.9A-102.

(7) "Investment property" 8.9A-102.

(8) "Item" 8.4-104.

(9) "Letter of credit" 8.5A-102.

(10) "Payment order" 8.4A-103.

(11) "Sale" 8.2-106.

(2000, cc. 101, 996; 2001, c. 763; 2003, c. 353; 2004, c. 794.)