40-19-109. Default; notice of default and right to cure.
(a) In any rental-purchase agreement, after a consumer is in default for three (3) business days or more and does not voluntarily surrender possession of the rented property, a merchant may give the consumer the notice provided in this section. Notice may be given to the consumer under this section by the merchant personally delivering the notice to the consumer or by mailing the notice to the consumer's last known residential address. Notice may also be given by delivering the communication to the consumer by email or other electronic means if the consumer provides written consent to receive notice by email or other electronic means in response to a clear and conspicuous request for consent.
(b) The notice shall be in writing and conspicuously state the name, address and telephone number of the merchant to whom payment is made, a brief identification of the transaction, the consumer's right to cure any default, the amount of payment and the date the payment shall be made to cure the default. The notice shall be in substantially the form required by rule of the commissioner.
(c) With respect to rental-purchase agreements with payments or options to renew more frequently than monthly, after default consisting of failure to renew or return the property, a merchant may not initiate court action to recover rented property until three (3) business days after notice of the consumer's right to cure is given. With respect to all other rental-purchase agreements, after default consisting of failure to renew or return the property, a merchant may not initiate court action to recover rented property until five (5) business days after notice of the consumer's right to cure is given.
(d) After notice is given and until expiration of the minimum applicable period, a consumer may cure all defaults consisting of failure to renew and failure to return the property by tendering the amount of all unpaid sums due and payment of a renewal payment.
(e) This section shall not prohibit a consumer from voluntarily surrendering possession of property that is rented or a merchant from requesting and accepting surrender of property at any time after default. In any enforcement proceeding, a merchant shall affirmatively plead and prove either that the notice to cure is not required or that the merchant has given the required notice. The failure to plead shall not invalidate any action taken by the merchant that is otherwise lawful and if the merchant had rightfully repossessed the property the repossession shall not constitute conversion.
(a) Any consumer whose default consists solely of a failure to make a timely rental payment may reinstate the agreement, without losing any rights or options which exist under the agreement, by paying the following charges within seven (7) days of the renewal date of the agreement:
(i) All past due rental charges;
(ii) If the property has been picked-up, the reasonable costs of pickup and redelivery as limited by W.S. 40-19-108(a)(xi); and
(iii) Any applicable reinstatement fee as limited by W.S. 40-19-108(a)(x) and (xi).
(b) In the case of a consumer who has paid less than two-thirds (2/3) of the total of payments necessary to acquire ownership and where the consumer has returned or voluntarily surrendered the property within seven (7) days of the renewal date, other than through judicial process, the consumer may reinstate the agreement during a period of not less than twenty-one (21) days after the date of the return of the property.
(c) In the case of a consumer who has paid two-thirds (2/3) or more of the total of payments necessary to acquire ownership, and where the consumer has returned or voluntarily surrendered the property within seven (7) days of the renewal date, other than through judicial process, the consumer may reinstate the agreement during a period of not less than thirty (30) days after the date of the return of the property.
(d) Nothing in this section shall prevent a merchant from attempting to repossess the property. Repossession within seven (7) days of the renewal date shall not affect the consumer's right to reinstate. Upon reinstatement, the merchant shall provide the consumer with the same property, if available, or with substitute property of comparable quality and condition.
(a) A consumer and merchant may contract for a liability damage waiver in physical or digital format. The selling or offering for sale of a liability damage waiver pursuant to this act shall be subject to the following prohibitions and requirements:
(i) A merchant may not sell or offer to sell a liability damage waiver unless all restrictions, conditions and exclusions are printed in an agreement separate from the rental-purchase agreement;
(ii) The liability damage waiver contract shall include a statement of the fee for the liability damage waiver and shall display the following notice printed or typed in a size equal to or greater than ten (10) point bold type or, when disclosed in a digital format, outlined with a noticeable box in a type size equal to or larger than any surrounding language and in every instance disclosed in a clear and conspicuous manner: NOTICE: THE PURCHASE OF THIS LIABILITY DAMAGE WAIVER IS NOT MANDATORY AND MAY BE DECLINED. THIS CONTRACT OFFERS, FOR AN ADDITIONAL CHARGE, A LIABILITY DAMAGE WAIVER TO COVER YOUR RESPONSIBILITY FOR DAMAGE TO THE PROPERTY. BEFORE DECIDING WHETHER TO PURCHASE THE LIABILITY DAMAGE WAIVER, YOU MAY WISH TO DETERMINE WHETHER YOUR HOMEOWNER'S OR CASUALTY INSURANCE, IF ANY, AFFORDS YOU COVERAGE FOR DAMAGE TO THE RENTAL PROPERTY AND THE AMOUNT OF THE DEDUCTIBLE UNDER YOUR OWN INSURANCE COVERAGE.
(a) A renegotiation occurs when any term of a rental-purchase agreement that is required to be disclosed by W.S. 40-19-107 is changed by agreement between the merchant and consumer. A renegotiation is considered to be a new rental-purchase agreement requiring the merchant to give all the disclosures required by W.S. 40-19-107.
(b) The following acts shall not be considered to be a renegotiation:
(i) Reinstatement of a rental-purchase agreement in accordance with W.S. 40-19-110;
(ii) A merchant's waiver or failure to assert any claim against the consumer;
(iii) A deferral, extension or waiver of a portion of a periodic payment or of one (1) or more periodic payments; or
(iv) A change, made at the consumer's request, of the day of the week or month on which periodic payments are to be made.
(a) An advertisement for a rental-purchase agreement that refers to or states the dollar amount of a periodic payment and the right to acquire ownership of a specific item shall also clearly and conspicuously state the following:
(i) The transaction advertised is a rental-purchase agreement;
(ii) The total number and total amount of periodic payments necessary to acquire ownership of the item; and
(iii) That the consumer acquires no ownership rights in the item unless the total amount necessary to acquire ownership is paid.
(b) Any owner or personnel of any medium in which an advertisement appears or through which it is disseminated shall not be liable for the requirements in this section.
(c) The provisions of subsection (a) of this section shall not apply to any advertisement which does not refer to or state the amount of any payment.
(d) Every item displayed or offered under a rental-purchase agreement shall bear a tag or card that clearly and conspicuously indicates in Arabic numerals each of the following:
(i) The cash sale price of the item;
(ii) The amount of the periodic payment; and
(iii) The total number and total amount of periodic payments necessary to acquire ownership.
(e) An advertisement for a rental-purchase agreement in any language other than English shall contain disclosures as required by this section in that language.
(f) For rental-purchase property displayed or offered to a consumer by means of an online rental purchase agreement or via electronic commerce or other digital transaction means, whether at a merchant's place of business or an independent third-party retailer location, a merchant may disclose the information required by this section, including the information under subsection (d) of this section, in a digital format. A merchant's disclosure in a digital format shall constitute the tag or card under subsection (d) of this section, if the disclosure is made before disclosing the information required under W.S. 40-19-107, includes all information required by subsection (d) of this section and is clear and conspicuous. A disclosure in digital format under this section shall include an outline of the disclosure with a noticeable box in a type size equal to or larger than any surrounding language and in every instance be presented in a clear and conspicuous manner.
40-19-114. License required; application for license; fee; qualifications.
(a) Any person acting as a merchant, as defined by W.S. 40-19-102(a)(viii), in this state shall be licensed with a single statewide license to conduct such business under this section.
(b) The commissioner shall receive and act on all applications for licenses required under this act. Applications shall be filed in the manner prescribed by the commissioner and shall contain the information the commissioner requires by rule to make an investigation and evaluation of the financial responsibility, experience and business qualification of the applicant, and of the partners or members if the applicant is a partnership or association, and of the principal officers and directors if the applicant is a corporation, such as to warrant belief that the business will be operated honestly and fairly within the purposes of this act.
(c) The application for one (1) or more licenses shall be accompanied by a processing fee not to exceed five hundred dollars ($500.00) set by rule of the commissioner. The fee shall be deposited by the commissioner with the state treasurer and credited to the financial institutions administration account. Funds from the account shall be expended to carry out the duties of the commissioner. If the expenses of the investigation and evaluation exceed the amount of the fee, the applicant shall reimburse the commissioner the excess amount. If the expenses of the investigation and evaluation are less than the amount of the fee, the unexpended amount shall remain within the account. If an application is withdrawn by the applicant at any time prior to the completion of the investigation and evaluation, the unexpended amount shall remain within the account.
(d) Except as otherwise provided, fees collected by the commissioner under this act shall be deposited by the commissioner with the state treasurer and credited to the financial institutions administration account. Expenditures shall be made from the account by warrants drawn by the state auditor, upon vouchers issued and signed by the commissioner. The funds deposited in the account under this act shall be expended only to carry out the duties of the commissioner.
(e) The applicant shall be notified when the application is approved. Within twenty (20) days after notification, the applicant shall pay an initial license fee that shall include only the following:
(i) An amount not to exceed five hundred dollars ($500.00) for each place of business which is a physical location, as set by rule of the commissioner;
(ii) An amount not to exceed one thousand dollars ($1,000.00) if the applicant displays or offers rental-purchase property through an independent third-party retailer location regardless of the number of independent third-party retailer locations, as set by rule of the commissioner; and
(iii) An amount not to exceed five hundred dollars ($500.00) if the applicant has a place of business that is an online presence, and the applicant is not subject to the amounts in paragraphs (i) or (ii) of this subsection.
(f) Each place of business, including online presence, and independent third-party retailer location as of the time of application shall be disclosed in the application to the commissioner, provided that the independent third-party retailer locations may be deemed confidential business information and not subject to public disclosure.
(g) Each license shall state the primary address from which the business is to be conducted and the name of the licensee. The license shall be prominently displayed at each place of business of the licensee that is a physical location open to consumers. If the licensee has no physical location that is a place of business open to consumers, the license number shall be clearly displayed at the online presence of the licensee. The license shall not be transferable or assignable.
(h) If a licensee wishes to move the primary address listed on the license to another location, the licensee shall:
(i) Give written notice to the commissioner at least thirty (30) days prior to the move; and
(ii) Pay a license modification fee not to exceed one hundred dollars ($100.00), as set by rule of the commissioner.
(j) Each license issued under this section shall expire on December 31. The license shall be renewed annually not less than thirty (30) days before the expiration date by submitting a request for renewal on a form designated by the commissioner. The licensee shall pay a renewal fee that shall only include the following:
(i) An amount not to exceed five hundred dollars ($500.00) for each place of business which is a physical location, as set by rule of the commissioner;
(ii) An amount not to exceed one thousand dollars ($1,000.00) if the applicant displays or offers rental purchase property through an independent third-party retailer location regardless of the number of independent third-party retailer locations, as set by rule of the commissioner; and
(iii) An amount not to exceed five hundred dollars ($500.00) if the applicant has an online presence that is a place of business, and the applicant is not subject to the amounts in paragraph (i) or (ii) of this subsection.
(k) Any fee charged and collected under this section shall be in accordance with W.S. 13-1-603(d) through (f).
(a) The commissioner may issue to a person licensed under this act an order to show cause why his license should not be revoked or suspended for a period not in excess of six (6) months. The order shall state the place for a hearing and set a time for the hearing that is no less than ten (10) days from the date of the order. After the hearing the commissioner shall revoke or suspend the license if he finds that:
(i) The licensee has repeatedly and willfully violated this act or any rule or order lawfully made pursuant to this act; or
(ii) Facts or conditions exist which would clearly have justified the commissioner in refusing to grant a license had these facts or conditions been known to exist at the time the application for the license was made.
(b) No revocation or suspension of a license is lawful unless prior to institution of proceedings by the commissioner notice is given to the licensee of the facts or conduct which warrant the intended action and the licensee is given an opportunity to show compliance with all lawful requirements for retention of the license.
(c) If the commissioner finds that probable cause for revocation of a license exists and that enforcement of this act requires immediate suspension of a license pending investigation, he may, after a hearing upon five (5) days written notice, enter an order suspending the license for not more than thirty (30) days.
(d) Whenever the commissioner revokes or suspends a license, he shall enter an order to that effect and immediately notify the licensee of the revocation or suspension. Within five (5) days after the entry of the order he shall deliver to the licensee a copy of the order and the findings supporting the order.
(e) Any person holding a license under this act may relinquish the license by notifying the commissioner in writing of its relinquishment, but this relinquishment shall not affect his liability for acts previously committed.
(f) No revocation, suspension or relinquishment of a license shall impair or affect the obligation of any preexisting lawful contract between the licensee and any consumer.
(g) The commissioner may reinstate a license, terminate a suspension or grant a new license to a person whose license has been revoked or suspended if no fact or condition then exists which clearly would have justified the commissioner in refusing to grant a license.
(h) In lieu of a revocation or suspension of a license as provided in this section, the commissioner may order a licensee to cease acting as a merchant at any place of business or independent third-party retailer location within Wyoming. Any order under this subsection is subject to the same laws and regulations applicable to revocation or suspension of a license.
Every licensee shall maintain records in conformity with generally accepted accounting principles and practices in a manner which will enable the commissioner to determine whether the licensee is complying with the provisions of this act. The record keeping system of a licensee shall be sufficient if he makes the required information reasonably available to the commissioner. The records pertaining to any rental-purchase agreement need not be preserved for more than two (2) years after making the final entry relating to the agreement.
(a) Upon complaint the commissioner may examine and copy the records of a licensee. The investigation may be made for the purposes of discovering violations of this act or securing information lawfully required. For these purposes he shall have free and reasonable access during normal office hours to the offices, places of business and records of the licensee. Each licensee shall pay to the commissioner an amount assessed by the commissioner to cover the direct and indirect cost of an investigation under this subsection.
(b) For the purposes of this section, the commissioner may administer oaths or affirmations, and upon his own motion or upon request of any party may subpoena witnesses, compel their attendance, adduce evidence and require the production of any matter which is relevant to the investigation, including the existence, description, nature, custody, condition and location of any books, documents or other tangible things and the identity and location of person having knowledge of relevant facts or any other matter reasonably calculated to lead to the discovery of admissible evidence.
(c) Upon failure without lawful excuse to obey a subpoena or to give testimony and upon reasonable notice to all persons affected thereby, the commissioner may apply to the district court for an order compelling compliance.
40-19-118. Powers and functions of the commissioner; enforcement; penalties.
(a) Except as otherwise provided, the Wyoming Administrative Procedure Act, W.S. 16-3-101 through 16-3-115, shall apply to and govern all administrative actions taken by the commissioner pursuant to this act.
(b) The commissioner may adopt rules and regulations to implement and administer this act.
(c) After notice and hearing, the commissioner may order a merchant or a person acting on his behalf to cease and desist from engaging in violations of this act. Any person aggrieved by an order of the commissioner may obtain judicial review of the order and the commissioner may obtain an order of the court for enforcement of his order in the district court.
(d) The commissioner may bring a civil action to restrain a merchant from violating the provisions of this act and for other appropriate relief.
(e) Any merchant refusing or obstructing access to the commissioner or his representative to any account, books, records or papers, refusing to furnish any required information or hindering a full examination or investigation of the accounts, books, records or papers is guilty of a felony punishable by a fine of not less than one thousand dollars ($1,000.00), imprisonment for a period of not less than one (1) year, or both.
(f) Any merchant who wrongfully fails or refuses to comply with an order of the commissioner as may be provided under this act is guilty of a misdemeanor punishable by a fine of not more than one hundred dollars ($100.00) per day for each day the order is not obeyed.
(a) A merchant who fails to comply with a requirement imposed in W.S. 40-19-106 through 40-19-112 or 40-12-104 shall be liable to the consumer damaged thereby in an amount equal to the greater of:
(i) The actual damages sustained by the consumer as a result of the violation, plus the costs of the action and reasonable attorney's fees;
(ii) In the case of an individual action, twenty-five percent (25%) of the total payments necessary to acquire ownership but not less than one hundred dollars ($100.00) nor greater than one thousand dollars ($1,000.00), plus the costs of the action and reasonable attorney's fees; or
(iii) In the case of a class action, the amount the court determines to be appropriate with no minimum recovery as to each member, plus the costs of the action and reasonable attorney's fees. The total recovery in any class action or series of class actions arising out of the same violation shall not be more than the lesser of five hundred thousand dollars ($500,000.00) plus the costs of the action and reasonable attorney's fees or one percent (1%) of the net worth of the merchant plus the costs of the action and reasonable attorney's fees. In determining the amount of any award in a class action, the court shall consider, among other relevant factors, the amount of actual damages awarded, the frequency and persistence of the violation, the merchant's resources and the extent to which the merchant's violation was intentional.
(b) In the case of an advertisement, any merchant who fails to comply with the requirements of W.S. 40-19-113 with regard to any consumer shall be liable to that consumer for actual damages suffered from the violation, the costs of the action and reasonable attorney's fees.
(c) If there are multiple merchants, liability shall be imposed only on the merchant who made the disclosures. If no disclosures have been given, liability shall be imposed on all merchants.
(d) If there are multiple consumers in a rental-purchase agreement, there shall be only one (1) recovery of damages under subsection (a) of this section.
(e) Multiple violations in connection with a rental-purchase agreement shall entitle the consumer to a single recovery under this section.
(f) An action under this section shall be brought in any court of competent jurisdiction within the greater of the following times:
(i) Within two (2) years after the date the consumer made his last rental payment; or
(ii) Within two (2) years after the date of the occurrence of the violation that is the subject of the suit.
(a) If a merchant establishes by a preponderance of the evidence that a violation of this act was unintentional, no penalty as specified in W.S. 40-19-118 shall be imposed and validity of the transaction shall not be affected.
(b) A merchant shall not be liable under this act for any failure to comply with any requirement imposed under this act if within sixty (60) days after the merchant discovers an error, and prior to the institution of an action under this act or the receipt of written notice of the error from the consumer, the merchant notifies the consumer of the error and within seven (7) days, makes adjustments in the appropriate account necessary to correct the error.
(a) Unless this section is specifically waived in writing by the dealer, a supplier shall allow a dealer to periodically, but no less than once every twelve (12) months, return a portion of the dealer's surplus parts inventory for credit.
(b) The supplier shall notify the dealer of a time period during which a dealer may submit the dealer's surplus parts list and return inventory. A supplier may stagger return periods for its dealers.
(c) If a supplier has not notified its dealer of a specific time period for returning surplus parts within the preceding twelve (12) month period, it shall allow the dealer to return surplus parts within sixty (60) days of receiving the dealer's request to make such return.
(d) A supplier shall allow surplus parts return on a dollar value of parts equal to ten percent (10%) of the total dollar value of all parts purchased by the dealer from the supplier during either the twelve (12) month period immediately preceding the supplier's notification to the dealer of the supplier's return program or, if subsection (c) of this section applies, the month the dealer makes a return request.
(e) The dealer may elect to return a dollar value of the surplus parts equal to less than ten percent (10%) of the total dollar value of the parts the dealer purchased during the preceding twelve (12) months.
(f) A dealer may not return obsolete parts. However, a dealer may return a part for credit if such part is found in the supplier's current parts list or any superseded part that is not the subject of the supplier's parts return program as of the date of termination.
(g) A dealer shall return only new and unused parts to the supplier of the parts.
(h) The minimum credit allowed for returned parts shall be ninety-five percent (95%) of the net price as listed in the supplier's current parts list as of the date that the supplier provides notice of its return program or, if subsection (c) of this section applies, the date that the dealer submits a request for return.
(j) A supplier shall issue credit within ninety (90) days after receiving a return part.
(k) Nothing in this section shall be construed to prevent a supplier from charging back to the dealer's account amounts previously paid or credited as a discounted incident to the dealer's purchase of equipment.
40-20-110. Current agreements; effect of law; void provisions.
(a) Effective July 1, 2006, this chapter shall apply to all dealer agreements now in effect which have no expiration date and are a continuing contract and all other dealer agreements entered into, renewed, extended, revised, modified or changed in any manner on or after July 1, 2006.
(b) A provision in any contract or agreement with respect to a supplier that requires jurisdiction or venue outside of this state or requires the application of the laws of another state or country is void with respect to a claim otherwise enforceable under this chapter. Except as provided in W.S. 40-20-105(a), any attempt to waive a provision of this chapter or application of this chapter shall be void. Any provision in a dealer agreement that requires a dealer to pay attorney fees incurred by a supplier shall be void.
(a) As used in this chapter:
(i) "Current net parts price" means:
(A) For current parts, the price for repair parts listed in the supplier's price list or catalogue in effect at the time the dealer agreement is cancelled or discontinued, or for purposes of W.S. 40-20-119, the price list or catalogue in effect at the time the repair parts were ordered;
(B) For superseded repair parts, the price listed in the supplier's price list or catalogue in effect at the time the dealer agreement is cancelled or discontinued for the part that performs the same function and purpose as the superseded part, but is listed under a different part number.
(ii) "Current net parts cost" means the current net parts price less any trade or cash discounts typically given to the dealer with respect to the dealer's normal, ordinary course orders of repair parts;
(iii) "Dealer" means any person, not including mass retailers, engaged in the business of:
(A) Selling or leasing equipment or repair parts to the consumer; and
(B) Repairing or servicing equipment.
(iv) "Dealer agreement" means either an oral or written agreement or an agreement between a dealer and a supplier that provides for the rights and obligations of the parties with respect to the purchase or sale of equipment or repair parts. If a dealer has more than one (1) business location covered by the same dealer agreement, the requirements of this chapter shall be applied to the repurchase of a dealer's inventory at a particular location upon the closing of that location;
(v) "Dealership" means the retail sale business engaged in by a dealer under a dealer agreement;
(vi) "Demonstrator" means equipment in a dealer's inventory that has never been sold at retail, but has had its usage demonstrated to potential customers, either without charge or pursuant to a short term rental agreement, with the intent of encouraging the person to purchase the equipment;
(vii) "Equipment" means:
(A) Multipurpose vehicles as defined in W.S. 31-1-101(a)(xv)(M) regardless of how used;
(B) Snowmobiles as defined in W.S. 31-2-401(a)(ii);
(C) Off-road recreational vehicles as defined in W.S. 31-1-101(a)(xv)(K) regardless of how used; and
(D) Other machinery, equipment, implements or attachments used for or in connection with one (1) or more of the following purposes:
(I) Lawn, garden, golf course, landscaping or grounds maintenance;
(II) Planting, cultivating, irrigating, grazing, harvesting and producing of agricultural products;
(III) Raising, feeding, tending to or harvesting products from, livestock or any related activity;
(IV) Industrial, construction, maintenance, or utility activities or applications;
(V) "Equipment" does not include self-propelled vehicles designed primarily for the transportation of persons or property on a street or highway.
(viii) "Family member" means a spouse, child, parent, sibling, stepchild, son-in-law, daughter-in-law or lineal descendant;
(ix) "Good cause" has the meaning set forth in W.S. 40-20-115 or 40-20-116, as applicable;
(x) "Index" means the United States bureau of labor statistics producer price index or industry data, for construction machinery, series identification number pcu333120333120 or any successor index measuring substantially similar information;
(xi) "Inventory" means new equipment, repair parts, data processing hardware or software, and specialized service or repair tools;
(xii) "Net equipment cost" means the price the dealer actually paid to the supplier for equipment, plus:
(A) Freight, at truckload rates in effect as of the effective date of the termination of a dealer agreement, if freight was paid by the dealer from the supplier's location to the dealer's location; and
(B) Reimbursement for labor incurred in preparing the equipment for retail sale or rental, or set up costs, which labor shall be reimbursed at the dealer's standard labor rate charged by the dealer to its customers for nonwarranty repair work. If a supplier has established a reasonable set up time, the labor shall be reimbursed at an amount equal to the reasonable set up time in effect as of the date of delivery multiplied by the dealer's standard labor rate.
(xiii) "New equipment" means, for purposes of determining whether a dealer is a single line dealer, any equipment that could be returned to the supplier upon a termination of a dealer agreement pursuant to W.S. 40-20-120 and 40-20-121;
(xiv) "Person" means a natural person, corporation, partnership, limited liability company, company, trust, or any other form of business enterprise, including any other entity in which the "person" has a majority interest or of which the "person" has control, as well as the individual officers, directors and other persons in active control of the activities of each entity;
(xv) "Repair parts" means all parts related to the repair of equipment, including superseded parts;
(xvi) "Single line dealer" means a dealer that has:
(A) Purchased construction or industrial equipment from a single supplier constituting seventy-five percent (75%) of the dealer's new equipment, calculated on the basis of net cost; and
(B) A total annual average sales volume in excess of twenty million dollars ($20,000,000.00) for the three (3) calendar years immediately preceding the applicable determination date. The twenty million dollar ($20,000,000.00) threshold shall be increased each year by an amount equal to the then current threshold multiplied by the percentage increase in the index from January of the immediately preceding year to January of the current year.
(xvii) "Single line supplier" means the supplier that is selling the single line dealer construction and industrial equipment constituting seventy-five percent (75%) of the dealer's new equipment;
(xviii) "Supplier" means any person engaged in the business of manufacturing, assembly or wholesale distribution of equipment or repair parts. The term "supplier" and the provisions of this chapter shall be interpreted liberally and shall not be limited to traditional doctrines of corporate successor liability or take into account whether:
(A) A successor expressly assumed the liabilities of the supplier; or
(B) There has been one (1) or more intermediate successors to the initial supplier. The obligations of a supplier hereunder shall consequently apply to any actual or effective successor in interest to a supplier, including but not limited to, a purchaser of all or substantially all of the assets of a supplier or all or substantially all of the assets of any division or product line of a supplier, any receiver, trustee, liquidator or assignee of the supplier or any surviving corporation resulting from a merger, liquidation or reorganization of the original or any intermediate successor supplier. Purchasers of all or substantially all of the inventory of a supplier or a supplier's division or product line shall constitute a purchaser of all or substantially all of the supplier's assets.
(xix) "Terminate" means to terminate, cancel, fail to renew or substantially change the competitive circumstances of a dealer agreement.
(a) It shall be a violation of this chapter for a supplier to take any one (1) or more of the following actions:
(i) To coerce, compel or require any dealer to accept delivery of any equipment or repair parts which the dealer has not voluntarily ordered, except as required by any applicable law or unless the equipment or repair parts are safety features required by a supplier;
(ii) To require any dealer to purchase goods or services as a condition to the sale by the supplier to the dealer of any equipment, repair parts or other goods or services, except that nothing herein shall prohibit a supplier from requiring the dealer to purchase all repair parts, special tools and training reasonably necessary to maintain the safe operation or quality of operation in the field of any equipment offered for sale by the dealer;
(iii) To coerce any dealer into a refusal to purchase equipment manufactured by another supplier. However, it shall not be a violation of this section to require separate facilities, financial statements, or sales staff for major competing lines so long as the dealer is given at least three (3) years notice of such requirement;
(iv) To refuse to deliver in reasonable quantities and within a reasonable time, after receipt of the dealer's order, to any dealer having a dealer agreement for the retail sale of new equipment sold or distributed by the supplier, equipment covered by the dealer agreement specifically advertised or represented by the supplier to be available for immediate delivery. The failure to deliver the equipment shall not be considered a violation of this chapter if the failure is due to prudent and reasonable restrictions on extensions of credit by the supplier to the dealer, an act of God, work stoppage or delay due to a strike or labor difficulty, a bona fide shortage of materials, freight embargo, or other cause over which the supplier has no control or a business decision by the supplier to limit the production volume of the equipment;
(v) To discriminate, directly or indirectly, in filling an order placed by a dealer for retail sale or lease of new equipment under a dealer agreement as between dealers of the same product line;
(vi) To discriminate, directly or indirectly, in price between different dealers with respect to purchases of equipment or repair parts of like grade and quality and identical brand, where the effect of the discrimination may be to substantially lessen competition, tend to create a monopoly in any line of commerce or injure, destroy or prevent competition with any dealer who either grants or knowingly receives the benefit of the discrimination. Different prices may be charged if:
(A) The differences are due to differences in the cost of manufacture, sale or delivery of the equipment or repair parts;
(B) The supplier can show that the lower price was made in good faith to meet an equally low price of a competitor; or
(C) The differences are related to the volume of equipment purchased by dealers.
(vii) To prevent by contract or otherwise, any dealer, from changing its capital structure, ownership or the means by or through which the dealer finances its operations, so long as the dealer gives prior notice to the supplier and provided the dealer at all times meets any reasonable capital standards agreed to between the dealer and the supplier and imposed on similarly situated dealers and provided the change by the dealer does not result in a change in the person with actual or effective control of a majority of the voting interests of the dealer;
(viii) To require a dealer to assent to a release, assignment, novation, waiver or estoppel which would relieve any person from liability imposed by this chapter;
(ix) Require as a condition of renewal or extension of a dealer agreement that the dealer complete substantial renovation to the dealer's place of business or to acquire new or additional space to serve as the dealer's place of business unless the supplier provides:
(A) At least one (1) year written notice of the condition;
(B) All the grounds supporting the condition; and
(C) A reasonable period of time in which to complete the renovation or acquisition after the one (1) year notice period expires.
(a) A dealer may terminate a dealer agreement without cause. The dealer shall give the supplier at least thirty (30) days prior written notice of termination. No supplier may terminate a dealer agreement without good cause. Notice from the supplier to the dealer shall be as provided in W.S. 40-20-116 and 40-20-117. Except as otherwise specifically provided in this chapter, good cause means the failure by a dealer to substantially comply with essential and reasonable requirements imposed upon the dealer by the dealer agreement, provided the requirements are not different from those requirements imposed on other similarly situated dealers either by their terms or in the manner of their enforcement. In addition, good cause shall exist whenever:
(i) The dealer or dealership has transferred a controlling ownership interest in its business without the supplier's consent;
(ii) The dealer has filed a voluntary petition in bankruptcy or has had an involuntary petition in bankruptcy filed against it which has not been discharged within thirty (30) days after the filing, there has been a closeout or sale of a substantial part of the dealer's assets related to the business or there has been a commencement of dissolution or liquidation of the dealer;
(iii) There has been a deletion, addition or change in dealer or dealership locations without the prior written approval of the supplier;
(iv) The dealer has defaulted under any chattel mortgage or other security agreement between the dealer and the supplier or there has been a revocation of any guarantee of the dealer's present or future obligations to the supplier. Good cause shall not exist if a person revokes any guarantee in connection with or following the transfer of the person's entire ownership interest in the dealer unless the supplier requires the new person to execute a new guarantee of the dealer's present or future obligations in connection with the transfer of ownership interest;
(v) The dealer has failed to operate in the normal course of business for seven (7) consecutive days or has otherwise abandoned its business;
(vi) The dealer has pleaded guilty to or has been convicted of a felony affecting the relationship between the dealer and supplier;
(vii) The dealer has engaged in conduct which is injurious or detrimental to the dealer's customers or to the public welfare or the representation or reputation of the supplier's product;
(viii) The dealer has consistently failed to meet and maintain the supplier's requirements for reasonable standards and performance objectives, so long as the supplier has given the dealer reasonable standards and performance objectives that are based on the manufacturer's experience in other comparable market areas.
(b) The provisions of this section shall not apply to the dealer agreements between a single line dealer and the single line supplier.
40-20-116. Termination of dealer agreements; single line dealers.
(a) This section shall only apply to the dealer agreements between a single line dealer and a single line supplier.
(b) No supplier may terminate a dealer agreement without good cause. For purposes of this section and W.S. 40-20-118 only, good cause means failure by a dealer to comply with requirements imposed upon the dealer by the dealer agreement if the requirements are not different from those imposed on other similarly situated dealers. In addition, good cause exists when:
(i) There has been a closeout or sale of a substantial part of the dealer's assets related to the equipment business or there has been a commencement of a dissolution or liquidation of the dealer;
(ii) The dealer has changed its principal place of business or added additional locations without prior approval of the supplier, which shall not be unreasonably withheld;
(iii) The dealer has substantially defaulted under a chattel mortgage or other security agreement between the dealer and the supplier or there has been a revocation or discontinuance of a guarantee of a present or future obligation of the dealer to the supplier;
(iv) The dealer has failed to operate in the normal course of business for seven (7) consecutive days or has otherwise abandoned its business;
(v) The dealer has pleaded guilty to or has been convicted of a felony affecting the relationship between the dealer and the supplier; or
(vi) The dealer transfers an interest in the dealership, or a person with a substantial interest in the ownership or control of the dealership, including an individual proprietor, partner or major shareholder withdraws from the dealership, dies or a substantial reduction occurs in the interest of a partner or major shareholder in the dealership. Good cause does not exist if the supplier consents to an action described in this paragraph.
(c) Except as otherwise provided in this subsection, a supplier shall provide a dealer with at least ninety (90) days written notice of termination. The notice shall state all reasons constituting good cause for the termination and shall state the dealer has sixty (60) days in which to cure any claimed deficiency. If the deficiency is cured within sixty (60) days, the notice shall be void. Notwithstanding the foregoing, if the good cause for termination is due to the dealer's failure to meet or maintain the supplier's requirements for market penetration, a reasonable period of time shall have existed where the supplier has worked with the dealer to gain the desired market share. The notice and right to cure provisions under this subsection shall not apply if the reason for termination is for any reason set forth in paragraphs (b)(i) through (vi) of this section.
40-20-117. Notice of termination of dealer agreement; cure
of deficiency; approval of dealer ownership transfer; death of dealer.
(a) Except as otherwise provided in this section, a supplier shall provide a dealer at least one hundred eighty (180) days prior written notice of termination of a dealer agreement. The notice shall state all reasons constituting good cause for the termination and shall state the dealer has sixty (60) days in which to cure any claimed deficiency. If the deficiency is cured within sixty (60) days, the notice shall be void. A supplier may not terminate a dealer agreement for the reason set forth in W.S. 40-20-115(a)(viii) unless the supplier gives the dealer notice of the action at least two (2) years before the effective date of the action. If the dealer achieves the supplier's requirements for reasonable standards or performance objectives before the expiration of the two (2) year notice period, the notice shall be void and the dealer agreement shall continue in full force and effect. The notice and right to cure provisions under this section shall not apply if the reason for termination is for any reason set forth in W.S. 40-20-115(a)(i) through (vii).
(b) If a supplier has contractual authority to approve or deny a request for a sale or transfer of a dealer's business or an equity ownership interest, the supplier shall approve or deny the request within sixty (60) days after receiving a written request from the dealer. If the supplier has neither approved nor denied the request within the sixty (60) day period, the request shall be deemed approved. The dealer's request shall include reasonable financial, personal background, character references and work history information for the acquiring persons. If a supplier denies a request made pursuant to this subsection, the supplier shall provide the dealer with a written notice of the denial that states the reasons for the denial. A supplier may only deny a request based on the failure of the proposed transferee to meet the reasonable requirements consistently imposed by the supplier in determining approval of the transfer or approval of a new dealer.
(c) If a dealer dies and the supplier has contractual authority to approve or deny a request for a sale or transfer of the dealer's business or his equity ownership interest, the dealer's estate or other person with authority to transfer assets of the dealer, shall have one hundred eighty (180) days to submit to the supplier a written request for a sale or transfer of the business or equity ownership interest. If the request is timely submitted, the supplier shall approve or deny the request in accordance with subsection (b) of this section. Notwithstanding anything to the contrary contained in this chapter, any attempt by the supplier to terminate the dealer or the dealership as a result of the death of a dealer shall be delayed until there has been compliance with the terms of this subsection or the one hundred eighty (180) day period has expired, as applicable.
(d) If a supplier and dealer have executed an agreement concerning succession rights before the dealer's death and that agreement has not been revoked or otherwise terminated by either party, the agreement shall control the terms of succession even if it designates someone other than the surviving spouse or heirs of the decedent as the successor.
(e) The provisions of this section shall not apply to the dealer agreements between a single line dealer and the single line supplier.
(a) This section shall only apply to the dealer agreements between a single line dealer and a single line supplier.
(b) If a dealer dies, a supplier shall have ninety (90) days in which to consider and make a determination on a request by a family member to enter into a new dealer agreement to operate the dealership. If the supplier determines that the requesting family member is not acceptable, the supplier shall provide the family member with a written notice of its determination with the stated reasons for nonacceptance. This subsection does not entitle an heir, personal representative or family member to operate a dealership without the specific written consent of the supplier.
(c) If a supplier and dealer have executed an agreement concerning succession rights prior to the dealer's death and that agreement is still in effect, the agreement shall control the terms of succession even if it designates someone other than the surviving spouse or heirs of the decedent as the successor.
(a) If a dealer submits a warranty claim to a supplier while the dealer agreement is in effect or within sixty (60) days after the termination of the dealer agreement and if the claim is for work performed before the termination or expiration of the dealer agreement, the supplier shall accept or reject the warranty claim by written notice to the dealer within thirty (30) days after the supplier's receipt of the claim. If the supplier does not reject the warranty claim in the time period specified above, the claim shall be deemed accepted. If the supplier accepts the warranty claim, the supplier shall pay or credit to the dealer's account all amounts owed with respect to the claim to the dealer within thirty (30) days after it is accepted. If the supplier rejects a warranty claim, the supplier shall give the dealer written or electronic notice of the grounds for rejection, which reasons shall be consistent with the supplier's reasons for rejecting warranty claims of other dealers, both in their terms and manner of enforcement. If no grounds for rejection are given, the claim shall be deemed accepted.
(b) Any claim which is disapproved by the supplier based upon the dealer's failure to properly follow the procedural or technical requirements for submission of warranty claims may be resubmitted in proper form by the dealer within thirty (30) days of receipt by the dealer of the supplier's notification of the disapproval.
(c) Warranty work performed by the dealer shall be compensated in accordance with the reasonable and customary amount of time required to complete the work, expressed in hours and fractions multiplied by the dealer's established customer hourly retail labor rate, which shall have previously been made known to the supplier. Parts used in warranty repair work shall be reimbursed at the current net price plus fifteen percent (15%).
(d) For purposes of this chapter, any repair work or installation of replacement parts performed with respect to the dealer's equipment in inventory or equipment of the dealer's customers at the request of the supplier, including work performed pursuant to a product improvement program, shall be deemed to create a warranty claim for which the dealer shall be paid pursuant to this section.
(e) A supplier may audit warranty claims submitted by its dealers for a period of up to one (1) year following payment of the claims, and may charge back to its dealers any amounts paid based upon claims shown by the audit to be misrepresented. If a warranty claim is misrepresented, then warranty claims submitted within the three (3) year period ending with the date a claim is shown by the audit to be misrepresented may be audited.
(f) The requirements of subsections (a) through (c) of this section apply to all warranty claims submitted by a dealer to a supplier in which the dealer has complied with the supplier's reasonable policies and procedures for warranty reimbursement. A supplier's warranty reimbursement policies and procedures shall be deemed unreasonable to the extent they conflict with any of the provisions of this section.
(g) A dealer may choose to accept alternate reimbursement terms and conditions in lieu of the requirements of subsections
(a) through (c) of this section if there is a written dealer agreement between the supplier and the dealer that requires the supplier to compensate the dealer for warranty labor costs either as:
(i) A discount in the pricing of the equipment to the dealer; or
(ii) A lump sum payment to the dealer that is made to the dealer within ninety (90) days of the sale of the supplier's new equipment.
(h) The discount or lump sum described in subsection (g) of this section shall be no less than five percent (5%) of the suggested retail price of the equipment. If the requirements of subsections (g) and (h) of this section are met and alternate terms and conditions are in place, subsections (a) through (c) of this section do not apply and the alternate terms and conditions are enforceable. Nothing contained in this subsection or subsection (g) of this section shall be deemed to effect the supplier's obligation to reimburse the dealer for parts in accordance with subsection (c) of this section.
40-20-120. Repurchase obligations of supplier on cancellation or discontinuance of dealer agreement.
(a) Whenever any dealer enters into a dealer agreement with a supplier and either the supplier or the dealer desires to cancel, not renew or otherwise discontinue the dealer agreement, the supplier shall pay to the dealer or credit to the dealer's account, if the dealer has outstanding any sums owing the supplier, unless the dealer should desire to keep the equipment or repair parts:
(i) A sum equal to one hundred percent (100%) of the net equipment cost of all new, unsold, undamaged equipment, one hundred percent (100%) of the net equipment cost of all unsold, undamaged demonstrators, less a downward adjustment to reflect a reasonable allowance for depreciation due to usage of the demonstrators, which adjustment shall be based on published industry rental rates to the extent such rates are available and ninety-five percent (95%) of the current net parts prices on new, unsold, undamaged repair parts that had previously been purchased from the supplier and held by the dealer on the date the dealer agreement terminates or expires. Demonstrators with less than fifty (50) hours of use for machines with hour meters, shall be considered new, unsold or undamaged equipment subject to repurchase under this paragraph;
(ii) A sum equal to five percent (5%) of the current net parts price of all repair parts returned to compensate the dealer for the handling, packing and loading of the repair parts for return to the supplier. The five percent (5%) shall not be paid or credited to the dealer if the supplier elects to perform the handling, packing and loading of the repair parts;
(iii) The fair market value of any specific data processing hardware or software the supplier required the dealer to acquire or purchase to satisfy the requirements of the supplier, including computer equipment required and approved by the supplier to communicate with the supplier. Fair market value of property subject to repurchase pursuant to this paragraph shall be deemed to be the acquisition cost, including any shipping, handling and setup fees, less straight line depreciation of the acquisition cost over three (3) years. If the dealer purchased data processing hardware or software that exceeded the supplier's minimum requirements, the acquisition cost of the data processing hardware or software shall be deemed to be the acquisition cost of hardware or software of similar quality that did not exceed the minimum requirements of the supplier;
(iv) A supplier shall repurchase specialized repair tools at a price equal to seventy-five percent (75%) of the total invoice amount charged by the supplier to the dealer.
(b) Upon the payment or allowance of credit to the dealer's account of the sums required by this section, the title to all inventory purchased hereunder shall pass to the supplier making the payment and the supplier shall be entitled to the possession of the inventory. All payments or allowances of credit due dealers shall be paid or credited within ninety (90) days after receipt by the supplier of property required to be repurchased. Any payments or allowances of credit due dealers that are not paid within the ninety (90) day period shall accrue interest at the maximum rate allowed by law. The supplier may withhold payments due under this subsection during the period of time in which the dealer fails to comply with its contractual obligations to remove any signage indicating the dealer is an authorized dealer of the supplier.
(c) If any supplier refuses to repurchase any inventory covered under the provisions of this chapter after cancellation, nonrenewal or discontinuance of the dealer agreement, the supplier shall be civilly liable to the dealer for one hundred ten percent (110%) of the amount that would have been due for the inventory if the supplier had timely complied with this chapter, any freight charges paid by the dealer, interest accrued and the dealer's actual costs of any court or arbitration proceeding, including costs for attorney fees and costs of arbitrators.
(d) The supplier and dealer shall each pay fifty percent (50%) of the costs of freight, at truckload rates, to ship any equipment or repair parts returned to the supplier pursuant to this chapter.
(e) Notwithstanding any provision to the contrary in the uniform commercial code adopted by this state, the dealer shall retain a first and prior lien against all inventory returned by the dealer to the supplier under the provisions of this chapter until the dealer is paid all amounts owed by the supplier for the repurchase of the inventory required under the provisions of this chapter. The dealer's lien under this subsection shall constitute a perfected security interest for a period of six (6) years without the filing of a financing statement.
(f) The provisions of this section shall not be construed to affect in any way any security interest which the supplier may have in the inventory of the dealer, and any repurchase hereunder shall not be subject to the provisions of the bulk sales law or to the claims of any secured or unsecured creditors of the supplier or any assignee of the supplier until the time the dealer has received full payment or credit, as applicable.
(a) The provisions of this chapter shall not require the repurchase from a dealer of:
(i) Any repair part in a broken or damaged package. The supplier shall be required to repurchase a repair part in a broken or damaged package, for a repurchase price that is equal to eighty-five percent (85%) of the current net price for the repair part, if the aggregate current net price for the entire package of repair parts is seventy-five dollars ($75.00) or higher;
(ii) Any repair part which because of its condition is not resalable as a new part without repackaging or reconditioning;
(iii) Any inventory the dealer is unable to furnish evidence, satisfactory to the supplier, of clear title, free and clear of all claims, liens and encumbrances;
(iv) Any inventory the dealer desires to keep, provided the dealer has a contractual right to do so;
(v) Any equipment or repair parts not in new, unsold, undamaged or complete condition, subject to the provisions of this chapter relating to demonstrators;
(vi) Any equipment delivered to the dealer prior to the beginning of the thirty-six (36) month period immediately preceding the date of notification of termination;
(vii) Any equipment or repair parts ordered by the dealer on or after the date of notification of termination;
(viii) Any equipment or repair parts acquired by the dealer from any source other than the supplier unless the equipment or repair parts were ordered from or invoiced to the dealer by the supplier; or
(ix) Any equipment or repair parts not returned to the supplier within ninety (90) days after the later of:
(A) The effective date of termination of a dealer agreement; and
(B) The date the dealer receives from the supplier all information, documents or supporting materials required by the supplier to comply with the supplier's return policy. This subparagraph shall not be applicable to a dealer if the supplier did not give the dealer notice of the ninety (90) day deadline at the time the applicable notice of termination was sent to the dealer.
If the supplier violates any provision of this chapter, the dealer may bring an action against the supplier in a court of competent jurisdiction for damages sustained by the dealer as a consequence of the supplier's violation, including, but not limited to, damages for lost profits, together with the actual costs of the action, including the attorney fees and costs of arbitrators. The dealer may also be granted injunctive relief against unlawful termination. The remedies set forth in this section shall not be deemed exclusive and shall be in addition to any other remedies permitted by law.
40-20-123. Choice of remedies; exemption from tax.
(a) The provisions of this chapter shall be supplemental to any dealer agreement between the dealer and the supplier which provides the dealer with greater protection. The dealer can elect to pursue its contract remedy or the remedy provided by state law, or both. An election by the dealer to pursue these remedies shall not bar its right to exercise any other remedies that may be granted at law or in equity.
(b) Any repurchase under this chapter is not subject to sales or use tax.
(a) In this article unless the context otherwise requires:
(i) "Agreement" means the bargain of the parties in fact, as found in their language or inferred from other circumstances and from rules, regulations and procedures given the effect of agreements under laws otherwise applicable to a particular transaction;
(ii) "Automated transaction" means a transaction conducted or performed, in whole or in part, by electronic means or electronic records, in which the acts or records of one (1) or both parties are not reviewed by an individual in the ordinary course in forming a contract, performing under an existing contract or fulfilling an obligation required by the transaction;
(iii) "Computer program" means a set of statements or instructions to be used directly or indirectly in an information processing system in order to bring about a certain result;
(iv) "Contract" means the total legal obligation resulting from the parties' agreement as affected by this act and other applicable law;
(v) "Electronic" means relating to technology having electrical, digital, magnetic, wireless, optical, electromagnetic or similar capabilities;
(vi) "Electronic agent" means a computer program or an electronic or other automated means used independently to initiate an action or respond to electronic records or performances in whole or in part, without review or action by an individual;
(vii) "Electronic record" means a record created, generated, sent, communicated, received or stored by electronic means;
(viii) "Electronic signature" means an electronic sound, symbol or process attached to or logically associated with a record and executed or adopted by a person with the intent to sign the record;
(ix) "Governmental agency" means an executive, legislative or judicial agency, department, board, commission, authority, institution or instrumentality of the federal government or of a state or of a county, municipality or other political subdivision of a state;
(x) "Information" means data, text, images, sounds, codes, computer programs, software, databases or the like;
(xi) "Information processing system" means an electronic system for creating, generating, sending, receiving, storing, displaying or processing information;
(xii) "Person" means an individual, corporation, business trust, estate, trust, partnership, limited liability company, association, joint venture, governmental agency, public corporation or any other legal or commercial entity;
(xiii) "Record" means information that is inscribed on a tangible medium or that is stored in an electronic or other medium and is retrievable in perceivable form;
(xiv) "Security procedure" means a procedure employed for the purpose of verifying that an electronic signature, record or performance is that of a specific person or for detecting changes or errors in the information in an electronic record. The term includes a procedure that requires the use of algorithms or other codes, identifying words or numbers, encryption, or callback or other acknowledgment procedures;
(xv) "State" means a state of the United States, the District of Columbia, Puerto Rico, the United States Virgin Islands or any territory or insular possession subject to the jurisdiction of the United States. The term includes an Indian tribe or band, or Alaskan native village, which is recognized by federal law or formally acknowledged by a state;
(xvi) "Transaction" means an action or set of actions occurring between two (2) or more persons relating to the conduct of business, commercial or governmental affairs;
(xvii) "This act" means W.S. 40-21-101 through 40-21-119.
(a) Except as otherwise provided in subsection (b) of this section, this act applies to electronic records and electronic signatures relating to a transaction.
(b) This act does not apply to a transaction to the extent it is governed by:
(i) A law governing the creation and execution of wills, codicils or testamentary trusts;
(ii) The Uniform Commercial Code other than W.S. 34.1-1-107 and 34.1-1-206, article 2 and article 2A; and
(iii) The Uniform Computer Information Transactions Act.
(c) This act applies to an electronic record or electronic signature otherwise excluded from the application of this act under subsection (b) of this section to the extent it is governed by a law other than those specified in subsection (b) of this section.
(d) A transaction subject to this act is also subject to other applicable substantive law.
(a) This act applies to any electronic record or electronic signature created, generated, sent, communicated, received or stored on or after July 1, 2001.
(b) The Financial Technology Sandbox Act shall apply to this act.
40-21-105. Use of electronic records and electronic signatures, variation by agreement.
(a) This act does not require a record or signature to be created, generated, sent, communicated, received, stored or otherwise processed or used by electronic means or in electronic form.
(b) This act applies only to transactions between parties each of which has agreed to conduct transactions by electronic means. Whether the parties agree to conduct a transaction by electronic means is determined from the context and surrounding circumstances, including the parties' conduct.
(c) A party that agrees to conduct a transaction by electronic means may refuse to conduct other transactions by electronic means. The right granted by this subsection may not be waived by agreement.
(d) Except as otherwise provided in this act, the effect of any of its provisions may be varied by agreement. The presence in certain provisions of this act of the words "unless otherwise agreed", or words of similar import, does not imply that the effect of other provisions may not be varied by agreement.
(e) Whether an electronic record or electronic signature has legal consequences is determined by this act and other applicable law.