§ 59.1-508.16. Limitations on electronic self-help.
(a) In this section,
(1) "electronic self-help" means the use of electronic means to exercise alicensor's rights under § 59.1-508.15 (b); and
(2) "wrongful use of electronic self-help" means use of electronicself-help other than in compliance with this section.
(b) On cancellation of a license, electronic self-help is not permitted,except as provided in this section. Notwithstanding any provision to thecontrary, electronic self-help is prohibited in mass-market transactions.
(c) If the parties agree to permit electronic self-help, a licensee shallseparately manifest assent to a term authorizing use of electronic self-help.In accordance with subsection (c) of § 59.1-501.12, a general assent to alicense containing a term authorizing use of electronic self-help is notsufficient to manifest assent to the use of electronic self-help. The termmust:
(1) provide for notice of exercise as provided in subsection (d);
(2) state the name of the person designated by the licensee to which noticeof exercise must be given and the manner in which notice must be given andplace to which notice must be sent to that person; and
(3) provide a simple procedure for the licensee to change the designatedperson or place.
(d) Before resorting to electronic self-help authorized by a term of thelicense, the licensor shall give notice in a record to the person designatedby the licensee stating:
(1) that the licensor intends to resort to electronic self-help as a remedyon or after forty-five days following receipt by the licensee of the notice;
(2) the nature of the claimed breach that entitles the licensor to resort toself-help; and
(3) the name, title, and address, including direct telephone number,facsimile number, or e-mail address, to which the licensee may communicateconcerning the claimed breach.
(e) A licensee may recover direct and incidental damages caused by wrongfuluse of electronic self-help. The licensee may also recover consequentialdamages for wrongful use of electronic self-help, whether or not thosedamages are excluded by the terms of the license, if:
(1) within the period specified in subsection (d) (1), the licensee givesnotice to the licensor's designated person describing in good faith thegeneral nature and magnitude of damages;
(2) the licensor has reason to know the damages of the type described insubsection (f) may result from the wrongful use of electronic self-help; or
(3) the licensor does not provide the notice required in subsection (d).
(f) Even if the licensor complies with subsections (c) and (d), electronicself-help may not be used if the licensor has reason to know that its usewill result in substantial injury or harm to the public health or safety orgrave harm to the public interest substantially affecting third persons notinvolved in the dispute.
(g) A court of competent jurisdiction of the Commonwealth shall give promptconsideration to a petition for injunctive relief and may enjoin, temporarilyor permanently, the licensor from exercising electronic self-help even ifauthorized by a license term or enjoin the licensee from misappropriation ormisuse of computer information, as may be appropriate, upon consideration ofthe following:
(1) harm of the kinds stated in subsection (f), or the threat thereof,whether or not the licensor has reason to know of those circumstances;
(2) irreparable harm or threat of irreparable harm to the licensee orlicensor;
(3) that the party seeking the relief is more likely than not to succeedunder his claim when it is finally adjudicated;
(4) that all of the conditions to entitle a person to the relief under thelaws of the Commonwealth have been fulfilled; and
(5) that the party that may be adversely affected is adequately protectedagainst loss, including a loss because of misappropriation or misuse ofcomputer information, that he may suffer because the relief is granted underthis chapter.
(h) Before breach of contract, rights or obligations under this section maynot be waived or varied by an agreement, but the parties may prohibit use ofelectronic self-help, and the parties, in the term referred to in subsection(c), may specify additional provisions more favorable to the licensee.
(i) This section does not apply if the licensor obtains physical possessionof a copy without a breach of the peace and without the use of electronicself-help; in which case, a lawfully obtained copy may be erased or disabledby electronic means.
§ 59.1-508.16. Limitations on electronic self-help.
(a) In this section,
(1) "electronic self-help" means the use of electronic means to exercise alicensor's rights under § 59.1-508.15 (b); and
(2) "wrongful use of electronic self-help" means use of electronicself-help other than in compliance with this section.
(b) On cancellation of a license, electronic self-help is not permitted,except as provided in this section. Notwithstanding any provision to thecontrary, electronic self-help is prohibited in mass-market transactions.
(c) If the parties agree to permit electronic self-help, a licensee shallseparately manifest assent to a term authorizing use of electronic self-help.In accordance with subsection (c) of § 59.1-501.12, a general assent to alicense containing a term authorizing use of electronic self-help is notsufficient to manifest assent to the use of electronic self-help. The termmust:
(1) provide for notice of exercise as provided in subsection (d);
(2) state the name of the person designated by the licensee to which noticeof exercise must be given and the manner in which notice must be given andplace to which notice must be sent to that person; and
(3) provide a simple procedure for the licensee to change the designatedperson or place.
(d) Before resorting to electronic self-help authorized by a term of thelicense, the licensor shall give notice in a record to the person designatedby the licensee stating:
(1) that the licensor intends to resort to electronic self-help as a remedyon or after forty-five days following receipt by the licensee of the notice;
(2) the nature of the claimed breach that entitles the licensor to resort toself-help; and
(3) the name, title, and address, including direct telephone number,facsimile number, or e-mail address, to which the licensee may communicateconcerning the claimed breach.
(e) A licensee may recover direct and incidental damages caused by wrongfuluse of electronic self-help. The licensee may also recover consequentialdamages for wrongful use of electronic self-help, whether or not thosedamages are excluded by the terms of the license, if:
(1) within the period specified in subsection (d) (1), the licensee givesnotice to the licensor's designated person describing in good faith thegeneral nature and magnitude of damages;
(2) the licensor has reason to know the damages of the type described insubsection (f) may result from the wrongful use of electronic self-help; or
(3) the licensor does not provide the notice required in subsection (d).
(f) Even if the licensor complies with subsections (c) and (d), electronicself-help may not be used if the licensor has reason to know that its usewill result in substantial injury or harm to the public health or safety orgrave harm to the public interest substantially affecting third persons notinvolved in the dispute.
(g) A court of competent jurisdiction of the Commonwealth shall give promptconsideration to a petition for injunctive relief and may enjoin, temporarilyor permanently, the licensor from exercising electronic self-help even ifauthorized by a license term or enjoin the licensee from misappropriation ormisuse of computer information, as may be appropriate, upon consideration ofthe following:
(1) harm of the kinds stated in subsection (f), or the threat thereof,whether or not the licensor has reason to know of those circumstances;
(2) irreparable harm or threat of irreparable harm to the licensee orlicensor;
(3) that the party seeking the relief is more likely than not to succeedunder his claim when it is finally adjudicated;
(4) that all of the conditions to entitle a person to the relief under thelaws of the Commonwealth have been fulfilled; and
(5) that the party that may be adversely affected is adequately protectedagainst loss, including a loss because of misappropriation or misuse ofcomputer information, that he may suffer because the relief is granted underthis chapter.
(h) Before breach of contract, rights or obligations under this section maynot be waived or varied by an agreement, but the parties may prohibit use ofelectronic self-help, and the parties, in the term referred to in subsection(c), may specify additional provisions more favorable to the licensee.
(i) This section does not apply if the licensor obtains physical possessionof a copy without a breach of the peace and without the use of electronicself-help; in which case, a lawfully obtained copy may be erased or disabledby electronic means.
§ 59.1-508.16. Limitations on electronic self-help.
(a) In this section,
(1) "electronic self-help" means the use of electronic means to exercise alicensor's rights under § 59.1-508.15 (b); and
(2) "wrongful use of electronic self-help" means use of electronicself-help other than in compliance with this section.
(b) On cancellation of a license, electronic self-help is not permitted,except as provided in this section. Notwithstanding any provision to thecontrary, electronic self-help is prohibited in mass-market transactions.
(c) If the parties agree to permit electronic self-help, a licensee shallseparately manifest assent to a term authorizing use of electronic self-help.In accordance with subsection (c) of § 59.1-501.12, a general assent to alicense containing a term authorizing use of electronic self-help is notsufficient to manifest assent to the use of electronic self-help. The termmust:
(1) provide for notice of exercise as provided in subsection (d);
(2) state the name of the person designated by the licensee to which noticeof exercise must be given and the manner in which notice must be given andplace to which notice must be sent to that person; and
(3) provide a simple procedure for the licensee to change the designatedperson or place.
(d) Before resorting to electronic self-help authorized by a term of thelicense, the licensor shall give notice in a record to the person designatedby the licensee stating:
(1) that the licensor intends to resort to electronic self-help as a remedyon or after forty-five days following receipt by the licensee of the notice;
(2) the nature of the claimed breach that entitles the licensor to resort toself-help; and
(3) the name, title, and address, including direct telephone number,facsimile number, or e-mail address, to which the licensee may communicateconcerning the claimed breach.
(e) A licensee may recover direct and incidental damages caused by wrongfuluse of electronic self-help. The licensee may also recover consequentialdamages for wrongful use of electronic self-help, whether or not thosedamages are excluded by the terms of the license, if:
(1) within the period specified in subsection (d) (1), the licensee givesnotice to the licensor's designated person describing in good faith thegeneral nature and magnitude of damages;
(2) the licensor has reason to know the damages of the type described insubsection (f) may result from the wrongful use of electronic self-help; or
(3) the licensor does not provide the notice required in subsection (d).
(f) Even if the licensor complies with subsections (c) and (d), electronicself-help may not be used if the licensor has reason to know that its usewill result in substantial injury or harm to the public health or safety orgrave harm to the public interest substantially affecting third persons notinvolved in the dispute.
(g) A court of competent jurisdiction of the Commonwealth shall give promptconsideration to a petition for injunctive relief and may enjoin, temporarilyor permanently, the licensor from exercising electronic self-help even ifauthorized by a license term or enjoin the licensee from misappropriation ormisuse of computer information, as may be appropriate, upon consideration ofthe following:
(1) harm of the kinds stated in subsection (f), or the threat thereof,whether or not the licensor has reason to know of those circumstances;
(2) irreparable harm or threat of irreparable harm to the licensee orlicensor;
(3) that the party seeking the relief is more likely than not to succeedunder his claim when it is finally adjudicated;
(4) that all of the conditions to entitle a person to the relief under thelaws of the Commonwealth have been fulfilled; and
(5) that the party that may be adversely affected is adequately protectedagainst loss, including a loss because of misappropriation or misuse ofcomputer information, that he may suffer because the relief is granted underthis chapter.
(h) Before breach of contract, rights or obligations under this section maynot be waived or varied by an agreement, but the parties may prohibit use ofelectronic self-help, and the parties, in the term referred to in subsection(c), may specify additional provisions more favorable to the licensee.
(i) This section does not apply if the licensor obtains physical possessionof a copy without a breach of the peace and without the use of electronicself-help; in which case, a lawfully obtained copy may be erased or disabledby electronic means.
