§490:1-303  Course of performance, course of
dealing, and usage of trade.  (a)  A "course of performance" is a
sequence of conduct between the parties to a particular transaction that exists
if:



(1)  The agreement of the parties with respect to the
transaction involves repeated occasions for performance by a party; and



(2)  The other party, with knowledge of the nature of
the performance and opportunity for objection to it, accepts the performance or
acquiesces in it without objection.



(b)  A "course of dealing" is a
sequence of conduct concerning previous transactions between the parties to a
particular transaction that is fairly to be regarded as establishing a common
basis of understanding for interpreting their expressions and other conduct.



(c)  A "usage of trade" is any
practice or method of dealing having such regularity of observance in a place,
vocation, or trade as to justify an expectation that it will be observed with
respect to the transaction in question.  The existence and scope of a usage of
trade shall be proved as facts.  If it is established that the usage is
embodied in a trade code or similar record, the interpretation of the record is
a question of law.



(d)  A course of performance or course of
dealing between the parties or usage of trade in the vocation or trade in which
they are engaged or of which they are or should be aware is relevant in
ascertaining the meaning of the parties' agreement, may give particular meaning
to specific terms of the agreement, and may supplement or qualify the terms of
the agreement.  A usage of trade applicable in the place in which part of the
performance under the agreement is to occur may be so utilized as to that part
of the performance.



(e)  Except as otherwise provided in subsection
(f), the express terms of an agreement and any applicable course of
performance, course of dealing, or usage of trade shall be construed whenever
reasonable as consistent with each other.  If such a construction is
unreasonable:



(1)  Express terms prevail over course of performance,
course of dealing, and usage of trade;



(2)  Course of performance prevails over course of
dealing and usage of trade; and



(3)  Course of dealing prevails over usage of trade.



(f)  Subject to section 490:2-209, a course of
performance is relevant to show a waiver or modification of any term
inconsistent with the course of performance.



(g)  Evidence of a relevant usage of trade
offered by one party is not admissible unless that party has given the other
party notice that the court finds sufficient to prevent unfair surprise to the
other party. [L 2004, c 162, pt of §1]