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A BILL TO BE ENTITLED
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AN ACT
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relating to the inspection, diagnosis, maintenance, and repair of |
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powered medical equipment. |
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BE IT ENACTED BY THE LEGISLATURE OF THE STATE OF TEXAS: |
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SECTION 1. This Act may be cited as the Texas Powered |
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Medical Equipment Right to Repair Act. |
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SECTION 2. Subtitle C, Title 5, Business & Commerce Code, is |
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amended by adding Chapter 113 to read as follows: |
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CHAPTER 113. INSPECTION, DIAGNOSIS, MAINTENANCE, AND REPAIR OF |
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POWERED MEDICAL EQUIPMENT |
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Sec. 113.001. DEFINITIONS. In this chapter: |
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(1) "Authorized repair provider" means an individual |
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or business entity that is not an affiliate of but has an |
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arrangement with an original equipment manufacturer: |
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(A) under which the original equipment |
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manufacturer grants to the individual or business entity a license |
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to use a trade name, service mark, or other proprietary identifier |
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for the purpose of offering inspection, diagnosis, maintenance, or |
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repair services for powered medical equipment under the name of the |
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original equipment manufacturer; or |
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(B) to offer inspection, diagnosis, maintenance, |
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or repair services for powered medical equipment on behalf of the |
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original equipment manufacturer. |
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(2) "Documentation" means any manual, diagram, |
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reporting output, service code description, schematic diagram, or |
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other guidance or information used in the inspection, diagnosis, |
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maintenance, or repair of powered medical equipment. |
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(3) "Embedded software" means any programmable |
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instructions provided on firmware that is delivered with powered |
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medical equipment or with a replacement part for that equipment for |
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the purpose of equipment operation, including all relevant patches |
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and fixes made by the original equipment manufacturer of the |
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powered medical equipment or replacement part for that purpose. |
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(4) "Fair and reasonable terms" means: |
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(A) with respect to making available a |
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replacement part, tool, documentation, or training course and |
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materials, making the part, tool, documentation, or course and |
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materials available at a cost and on terms equivalent to the most |
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favorable cost and terms offered to an original equipment |
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manufacturer's authorized repair provider that: |
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(i) account for: |
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(a) any discount, rebate, convenient |
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means of delivery, means of enabling fully restored and updated |
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functionality, rights of use, or other incentive or preference the |
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original equipment manufacturer offers to an authorized repair |
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provider; or |
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(b) any additional cost, burden, or |
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impediment the original equipment manufacturer imposes on an |
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independent repair provider; |
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(ii) are not conditioned on imposing a |
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substantial obligation or restriction that is not reasonably |
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necessary for enabling the owner or independent repair provider to |
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engage in the inspection, diagnosis, maintenance, or repair of |
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powered medical equipment made by or on behalf of the original |
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equipment manufacturer; and |
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(iii) are not conditioned on an arrangement |
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described by Subdivision (1); |
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(B) with respect to making available |
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documentation, including any relevant updates, making the |
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documentation available at no cost, except that an original |
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equipment manufacturer may charge the reasonable actual cost of |
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preparing and sending a copy of the documentation when the |
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documentation is requested in physical printed form; and |
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(C) with respect to providing software tools, |
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making the tools available: |
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(i) at no cost; |
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(ii) without requiring authorization or |
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Internet access; |
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(iii) without imposing impediments to |
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access or use in the course of effecting the diagnosis, |
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maintenance, or repair of powered medical equipment; and |
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(iv) in a manner that does not impair the |
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efficient and cost-effective diagnosis, maintenance, or repair of |
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powered medical equipment to enable full functionality of the |
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equipment. |
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(5) "Firmware" means a software program or set of |
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instructions programmed on powered medical equipment or on a |
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replacement part for the equipment that allows the equipment or |
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replacement part to communicate with itself or other computer |
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hardware. |
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(6) "Independent repair provider" means an individual |
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or business entity operating in this state: |
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(A) who does not, on the individual or entity's |
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own behalf or through an affiliate, have an arrangement with an |
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original equipment manufacturer as described by Subdivision (1) and |
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who is engaged in inspection, diagnosis, maintenance, or repair of |
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powered medical equipment; or |
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(B) that is an original equipment manufacturer, |
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or who is an individual or business entity who has or is affiliated |
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with an individual or entity who has an arrangement with that |
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original equipment manufacturer as described by Subdivision (1), |
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only with respect to inspection, diagnosis, maintenance, or repair |
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of powered medical equipment not manufactured by or sold under the |
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name of that original equipment manufacturer. |
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(7) "Original equipment manufacturer" means a |
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business entity that sells, leases, or otherwise supplies to an |
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individual or business new powered medical equipment manufactured |
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by or on behalf of the business entity. |
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(8) "Owner" means an individual or business entity who |
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owns or leases powered medical equipment purchased or used in this |
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state. |
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(9) "Powered medical equipment" means a powered |
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instrument, apparatus, implement, machine, contrivance, implant, |
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or other article, including a component or accessory, that is used |
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in the treatment, monitoring, or diagnosis of a patient. |
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(10) "Replacement part" means a new or used |
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replacement part made available by the original equipment |
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manufacturer for the purpose of diagnosis, maintenance, or repair |
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of powered medical equipment manufactured by or sold or otherwise |
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supplied by, or on behalf of, the original equipment manufacturer. |
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(11) "Tool" means a software program, hardware |
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implement, or other apparatus used in the inspection, diagnosis, |
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maintenance, or repair of powered medical equipment. The term |
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includes software or another mechanism that provides, programs, or |
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pairs a new replacement part, calibrates functionality, or performs |
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any other function required to bring the equipment to a fully |
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functional condition. |
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(12) "Trade secret" means information, including a |
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formula, pattern, compilation, program device, method, technique, |
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or process that: |
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(A) derives independent economic value, actual |
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or potential, from not being generally known to, and not being |
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readily ascertainable using proper means by, another person who can |
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obtain economic value from its disclosure or use; and |
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(B) is the subject of an effort that is |
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reasonable under the circumstances to maintain its secrecy. |
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Sec. 113.002. REQUIREMENTS FOR ORIGINAL EQUIPMENT |
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MANUFACTURERS. (a) For powered medical equipment sold or used in |
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this state, the original equipment manufacturer of the equipment |
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shall make available on fair and reasonable terms to any |
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independent repair provider or to an owner of powered medical |
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equipment manufactured by or on behalf of, or sold or otherwise |
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supplied by, the original equipment manufacturer: |
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(1) documentation, replacement parts, and tools, |
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including any updates to information or embedded software, and |
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training courses and materials for that equipment for purposes of |
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the inspection, diagnosis, maintenance, or repair of the equipment; |
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and |
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(2) for equipment containing an electronic security |
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lock or other security-related function, any special |
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documentation, replacement part, or tool needed to: |
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(A) disable the lock or function; and |
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(B) reset the lock or function when disabled in |
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the course of inspection, diagnosis, maintenance, or repair of the |
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equipment. |
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(b) An original equipment manufacturer that makes an |
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express warranty with respect to powered medical equipment with a |
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wholesale price of $100 or more shall provide any documentation, |
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replacement part, and tool to enable the repair of the equipment |
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during the warranty period, at an equitable price and convenience |
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of delivery and of enabling functionality, with regard to: |
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(1) the actual cost to the original equipment |
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manufacturer to prepare and distribute the documentation, part, or |
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tool, exclusive of any research and development costs incurred; |
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(2) the ability of owners and independent repair |
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providers to afford the documentation, part, or tool; and |
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(3) the means by which the documentation, part, or |
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tool is distributed. |
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(c) An original equipment manufacturer may make available |
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the documentation, replacement part, or tool under Subsection |
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(a)(2) through an appropriate secure release system. |
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(d) Subsection (a)(1) does not require a powered medical |
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equipment manufacturer to make available a replacement part if the |
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part is no longer available to the original equipment manufacturer. |
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(e) An original equipment manufacturer who offers the |
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services of inspection, diagnosis, maintenance, or repair of the |
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manufacturer's own powered medical equipment, and who does not have |
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an authorized repair arrangement with an individual or business |
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entity that is not an affiliate, is considered to be an authorized |
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repair provider with respect to that equipment. |
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(f) The training courses and materials described by |
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Subsection (a)(1) must include information on the operation of |
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powered medical equipment. |
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Sec. 113.003. CONSTRUCTION OF CHAPTER. (a) Nothing in this |
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chapter shall be construed to require an original equipment |
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manufacturer to divulge a trade secret to an owner or an independent |
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service provider except as necessary to provide documentation, |
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replacement parts, tools, and training courses and materials on |
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fair and reasonable terms as provided by this chapter. |
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(b) Nothing in this chapter shall be construed to alter the |
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terms of an arrangement described by Section 113.001(1) between an |
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authorized repair provider and original equipment manufacturer, |
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including the performance or provision of warranty or recall repair |
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work by the authorized repair provider on behalf of the original |
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equipment manufacturer under an arrangement described by Section |
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113.001(1), except that any provision in an agreement between an |
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authorized repair provider and original equipment manufacturer |
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that purports to waive, avoid, restrict, or limit the original |
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equipment manufacturer's obligation to comply with this chapter is |
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void and unenforceable. |
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Sec. 113.004. DECEPTIVE TRADE PRACTICE. A violation of |
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this chapter is a deceptive trade practice in addition to the |
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practices described by Subchapter E, Chapter 17, and is actionable |
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under that subchapter. |
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SECTION 3. To the extent of a conflict between Chapter 113, |
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Business & Commerce Code, as added by this Act, and a provision of |
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an agreement between an authorized repair provider and original |
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equipment manufacturer entered into before the effective date of |
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this Act, the provision of the agreement prevails. |
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SECTION 4. This Act takes effect September 1, 2021. |