Session of 1999
HOUSE BILL No. 2185
By Committee on Judiciary
1-28
9 AN ACT enacting the Kansas Y2K protection act.
10
11 Be it enacted by the Legislature of the State of Kansas:
12 Section 1. This act shall be known and may be cited as the Kansas
13 Y2K protection act.
14 Sec. 2. As used in this act:
15 (a) "Defendant" means any individual, proprietor, firm, partnership,
16 joint venturer, syndicate, business trust, company, corporation, limited
17 liability company, association, committee and any other group of persons
18 acting in concert who provides services to a customer or client through
19 the use, in part, of a computer system, program, or software which may
20 be affected by a computer date failure, but does not include any of the
21 above entities who sell, manufacture, distribute or lease computer sys-
22 tems, programs, or software.
23 (b) "Action" means any action to recover damages resulting directly
24 or indirectly from a computer date failure, including an action based on
25 a breach of contract for a computer date failure, a shareholder or deriv-
26 ative action based on a computer date failure, or an action based on an
27 alleged failure to properly detect, disclose, prevent, report on, or reme-
28 diate a computer date failure.
29 (c) "Computer date failure" means either of the following:
30 (1) The present or future inability of the computer system or com-
31 puter program or software to accurately store, process, provide or receive
32 data from, into and between the years 1999 and 2000 and beyond, in-
33 cluding leap year calculations, if all other technology used in combination
34 with such system, program or software properly exchanges data therewith;
35 or
36 (2) The possibility of the existence of any such inability or
37 incompatibility.
38 (d) "Computer program or software" means a set of statements or
39 instructions to be used directly or indirectly in a computer system in order
40 to bring about a certain result.
41 (e) "Computer system" means any electronic device or collection of
42 devices, including support devices, networks and embedded chips, and
43 excluding calculators that are not programmable, that contain computer
44 programs or electronic instructions and that perform functions including
45 logic, arithmetic, data processing, data storage and retrieval, communi-
46 cation or control.
47 (f) "Actual damages" means damages which are immediately attrib-
48 utable to a computer date failure as the natural result of a computer date
49 failure, and shall not include damages which are immediately attributable
50 to an intervening act, nor include damages which flow immediately from
51 the consequences or results of a computer date failure.
52 (g) "Consequential and remote damages" means damages which are
53 immediately attributable to an intervening event, and shall not include
54 damages which are immediately attributable to a computer date failure.
55 Such intervening event may form a link in an unbroken chain of causation,
56 so that the consequential and remote damages would not have occurred
57 if they had not been set in motion by the computer date failure. Conse-
58 quential and remote damages flow immediately from the consequences
59 or results of a computer date failure, and shall not include damages which
60 flow immediately from the computer date failure itself.
61 Sec. 3. (a) If the conditions set out in subsection (b) are met, then
62 any action which is brought against a defendant because of a computer
63 date failure shall:
64 (1) Be brought only as an individual action and not as a class action;
65 (2) be deemed to be based solely and exclusively in contract to the
66 exclusion of all other causes of action; and
67 (3) if brought, shall only allow recovery for the actual damages re-
68 sulting from a computer date failure and not for consequential and remote
69 damages resulting from a computer date failure.
70 (b) The conditions referred to in subsection (a) are as follows:
71 (1) the plaintiff in the action has not suffered any personal injury,
72 other than emotional harm, as a result of the computer date failure;
73 (2) the defendant in the action has made reasonable efforts to protect
74 its computer systems, programs or software, which it uses to provide
75 services to its clients or customers, from a computer date failure;
76 (3) the defendant, not later than September 1, 1999, has tested its
77 computer systems, programs or software, which it uses to provide services
78 to its customers and clients, by actually simulating the transition from
79 December 31, 1999, to January 1, 2000, and made any other tests that a
80 reasonable person would believe necessary to prevent a computer date
81 failure. The defendant is not required to test the computer system, pro-
82 gram or software of any individual client or customer;
83 (4) the defendant, not later than October 1, 1999, has prepared a
84 contingency plan, that will provide for alternative methods of carrying out
85 the services which it provides to its clients and customers, in order to
86 remedy any problem with the services it provides to its clients and cus-
87 tomers that may arise from a computer date failure. Such contingency
88 plan must be able to be implemented within 60 days after receiving writ-
89 ten notice from a customer or client of an actual problem regarding the
90 defendant's services that has been caused by a computer date failure;
91 (5) the defendant, not later than October 1, 1999, has provided notice
92 by mail to its current, known customers or clients of its efforts to avoid a
93 computer date failure, and has posted such notice prominently in its place
94 of business for public review. For all new customers or clients, who be-
95 come known to the defendant after October 1, 1999, the defendant pro-
96 vides notice of its efforts to avoid a computer date failure to these new
97 customers or clients within 60 days after these customers or clients be-
98 come known to the defendant. Such continuing notification, for all new
99 clients who become known to the defendant after October 1, 1999, may
100 be discontinued on July 1, 2000. The notice required herein shall include
101 a summary of the following: (A) A general description of the defendant's
102 year 2000 compliance efforts; (B) the likelihood that it will make a tran-
103 sition to the year 2000 without a computer date failure; (C) the problems
104 that could or will arise in the services which the defendant provides to its
105 client or customers should a computer date failure occur; (D) an expla-
106 nation to the defendant's customers or clients that all problems discov-
107 ered in the defendant's services which are possibly caused by a computer
108 date failure should be reported to the defendant in writing; (E) an expla-
109 nation to the defendant's customers or clients of the contingency plan,
110 which the defendant has prepared, that will provide alternative methods
111 for carrying out the services which the defendant provides to its clients
112 and customers, in order to remedy any problem in the defendant's serv-
113 ices that may arise from a computer date failure; (F) an explanation to
114 the defendant's customers or clients that it should expect any problem
115 with the defendant's services, that is caused by a computer date failure,
116 to be remedied within 60 days after the client or customer has notified
117 the defendant in writing of a problem with the defendant's services that
118 may be caused by a computer date failure; and
119 (6) the defendant has or will implement the applicable portions of
120 the contingency plan, or otherwise remedy the problem created by the
121 computer date failure, within 60 days after receiving written notice, from
122 a client or customer, of a problem with its services that may be caused
123 by a computer date failure.
124 Sec. 4. (a) The notice required under subsection (b)(5)(E) of section
125 3, and amendments thereto, in whole or in part, shall not be admissible
126 against the defendant in any action covered by this act to prove the ac-
127 curacy or truth of any information set forth in the notice, except that:
128 (1) The notice may be admissible to serve as the basis for a claim
129 brought by an individual, not as a class action, of anticipatory breach or
130 repudiation of a contract, to the extent provided under subsection (a)(2)
131 of section 3, and amendments thereto; and
132 (2) The court in any covered action shall have discretion to limit ap-
133 plication of this section in any case in which the court determines that
134 the defendant's use of the disclosures in the notice amounted to bad faith
135 or fraud.
136 Sec. 5. Notwithstanding section 3, neither the state of Kansas, nor
137 any political subdivision thereof, shall have liability for any individual or
138 class action which is brought against it by any person for damages result-
139 ing directly or indirectly from a computer date failure, or an action based
140 on a breach of contract for a computer date failure, or an action based
141 on an alleged failure to properly detect, disclose, prevent, report on, or
142 remediate a computer date failure.
143 (b) As used in this section the term "political subdivision" means any
144 office, agency, department, commission, board, division, and institution
145 of any county or municipality of the state of Kansas.
146 Sec. 6. (a) Nothing in this act shall be construed to:
147 (1) Limit the ability of contracting parties to enter into agreements
148 as they deem appropriate on the issue of liability and damages resulting
149 from computer date failure;
150 (2) affect the validity of existing contracts created on or before en-
151 actment of this act regarding issues of liability and damages resulting from
152 a computer date failure;
153 (3) recognize, endorse or suggest the existence or validity of any pur-
154 ported cause of action; or
155 (4) create a cause of action where none existed otherwise.
156 Sec. 7. This act shall take effect and be in force from and after its
157 publication in the Kansas register.