                                 CODE OF VIRGINIA

DEFINITIONS (§ 59.1-501.2)

a. As used in this chapter:

   1. &#8220;Access contract&#8221; means a contract to obtain by electronic
   means access to, or information from, an information processing system of
   another person, or the equivalent of such access.

   2. &#8220;Access material&#8221; means any information or material, such as a
   document, address, or access code, that is necessary to obtain authorized
   access to information or control or possession of a copy.

   3. &#8220;Aggrieved party&#8221; means a party entitled to a remedy for breach
   of contract.

   4. &#8220;Agreement&#8221; means the bargain of the parties in fact as found
   in their language or by implication from other circumstances, including course
   of performance, course of dealing, and usage of trade as provided in this
   chapter.

   5. &#8220;Attribution procedure&#8221; means a procedure to verify that an
   electronic authentication, display, message, record, or performance is that of
   a particular person or to detect changes or errors in information. The term
   includes a procedure that requires the use of algorithms or other codes,
   identifying words or numbers, encryption, or callback or other acknowledgment.

   6. &#8220;Authenticate&#8221; means (i) to sign or (ii) with the intent to
   sign a record, to execute or adopt an electronic symbol, sound, message, or
   process referring to, attached to, included in, or logically associated or
   linked with, that record.

   7. &#8220;Automated transaction&#8221; means a transaction in which a contract
   is formed in whole or part by electronic actions of one or both parties that
   are not previously reviewed by an individual in the ordinary course.

   8. &#8220;Cancellation&#8221; means the ending of a contract by a party
   because of breach of contract by another party.

   9. &#8220;Computer&#8221; means an electronic device that accepts information
   in digital or similar form and manipulates it for a result based on a sequence
   of instructions.

   10. &#8220;Computer information&#8221; means information in electronic form
   that is obtained from or through the use of a computer or that is in a form
   capable of being processed by a computer. The term includes a copy of the
   information and any documentation or packaging associated with the copy.

   11. &#8220;Computer information transaction&#8221; means an agreement or the
   performance of it to create, modify, transfer, or license computer information
   or informational rights in computer information. The term includes a support
   contract under &#xA7; 59.1-506.12. The term does not include a transaction
   merely because the parties&#8217; agreement provides that their communications
   about the transaction will be in the form of computer information.

   12. &#8220;Computer program&#8221; means a set of statements or instructions
   to be used directly or indirectly in a computer to bring about a certain
   result. The term does not include separately identifiable informational
   content.

   13. &#8220;Consequential damages&#8221; resulting from breach of contract
   includes (i) any loss resulting from general or particular requirements and
   needs of which the breaching party at the time of contracting had reason to
   know and which could not reasonably be prevented, and (ii) any injury to an
   individual or damage to property other than the subject matter of the
   transaction proximately resulting from breach of warranty. The term does not
   include direct damages or incidental damages.

   14. &#8220;Conspicuous,&#8221; with reference to a term, means so written,
   displayed, or presented that a reasonable person against which it is to
   operate ought to have noticed it. A term in an electronic record intended to
   evoke a response by an electronic agent is conspicuous if it is presented in a
   form that would enable a reasonably configured electronic agent to take it
   into account or react to it without review of the record by an individual.
   With respect to a person, conspicuous terms include (i) a heading in capitals
   in a size equal to or greater than, or in contrasting type, font, or color to,
   the surrounding text, (ii) language in the body of a record or display in
   larger or other contrasting type, font, or color or set off from the
   surrounding text by symbols or other marks that draw attention to the
   language, and (iii) a term prominently referenced in an electronic record or
   display which is readily accessible or reviewable from the record or display.
   With respect to a person or an electronic agent, conspicuous terms include a
   term, or reference to a term, that is so placed in a record or display that
   the person or electronic agent cannot proceed without taking action with
   respect to the particular term or reference.

   15. &#8220;Consumer&#8221; means an individual who is a licensee of
   information or informational rights that the individual at the time of
   contracting intended to be used primarily for personal, family, or household
   purposes. The term does not include an individual who is a licensee primarily
   for professional or commercial purposes, including agriculture, business
   management, and investment management other than management of the
   individual&#8217;s personal or family investments.

   16. &#8220;Consumer contract&#8221; means a contract between a merchant
   licensor and a consumer.

   17. &#8220;Contract&#8221; means the total legal obligation resulting from the
   parties&#8217; agreement as affected by this chapter and other applicable law.

   18. &#8220;Contract fee&#8221; means the price, fee, rent, or royalty payable
   in a contract under this chapter or any part of the amount payable.

   19. &#8220;Contractual use term&#8221; means an enforceable term that defines
   or limits the use, disclosure of, or access to licensed information or
   informational rights, including a term that defines the scope of a license.

   20. &#8220;Copy&#8221; means the medium on which information is fixed on a
   temporary or permanent basis and from which it can be perceived, reproduced,
   used, or communicated, either directly or with the aid of a machine or device.

   21. &#8220;Course of dealing&#8221; means a sequence of previous conduct
   between the parties to a particular transaction which establishes a common
   basis of understanding for interpreting their expressions and other conduct.

   22. &#8220;Course of performance&#8221; means repeated performances, under a
   contract that involves repeated occasions for performance, which are accepted
   or acquiesced in without objection by a party having knowledge of the nature
   of the performance and an opportunity to object to it.

   23. &#8220;Court&#8221; includes an arbitration or other dispute-resolution
   forum if the parties have agreed to use of that forum or its use is required
   by law.

   24. &#8220;Delivery,&#8221; with respect to a copy, means the voluntary
   physical or electronic transfer of possession or control.

   25. &#8220;Direct damages&#8221; means compensation for losses measured by
   &#xA7; 59.1-508.8 (b) (1) or &#xA7; 59.1-508.9 (a) (1). The term does not
   include consequential damages or incidental damages.

   26. &#8220;Electronic&#8221; means relating to technology having electrical,
   digital, magnetic, wireless, optical, electromagnetic, or similar
   capabilities.

   27. &#8220;Electronic agent&#8221; means a computer program, or electronic or
   other automated means, used independently to initiate an action, or to respond
   to electronic messages or performances, on the person&#8217;s behalf without
   review or action by an individual at the time of the action or response to the
   message or performance.

   28. &#8220;Electronic message&#8221; means a record or display that is stored,
   generated, or transmitted by electronic means for the purpose of communication
   to another person or electronic agent.

   29. &#8220;Financial accommodation contract&#8221; means an agreement under
   which a person extends a financial accommodation to a licensee and which does
   not create a security interest governed by Title 8.9A. The agreement may be in
   any form, including a license or lease.

   30. &#8220;Financial services transaction&#8221; means an agreement that
   provides for, or a transaction that is, or entails access to, use, transfer,
   clearance, settlement, or processing of:

A. a deposit, loan, funds, or monetary value represented in electronic form and
stored or capable of storage by electronic means and retrievable and
transferable by electronic means, or other right to payment to or from a person;

B. an instrument or other item;

C. a payment order, credit card transaction, debit card transaction, funds
transfer, automated clearing house transfer, or similar wholesale or retail
transfer of funds;

D. a letter of credit, document of title, financial asset, investment property,
or similar asset held in a fiduciary or agency capacity; or

E. related identifying, verifying, access-enabling, authorizing, or monitoring
information.

   31. &#8220;Financier&#8221; means a person that provides a financial
   accommodation to a licensee under a financial accommodation contract and
   either (i) becomes a licensee for the purpose of transferring or sublicensing
   the license to the party to which the financial accommodation is provided or
   (ii) obtains a contractual right under the financial accommodation contract to
   preclude the licensee&#8217;s use of the information or informational rights
   under a license in the event of breach of the financial accommodation
   contract. The term does not include a person that selects, creates, or
   supplies the information that is the subject of the license, owns the
   informational rights in the information, or provides support for,
   modifications to, or maintenance of the information.

   32. &#8220;Good faith&#8221; means honesty in fact and the observance of
   reasonable commercial standards of fair dealing.

   33. &#8220;Goods&#8221; means all things that are movable at the time relevant
   to the computer information transaction. The term includes the unborn young of
   animals, growing crops, and other identified things to be severed from realty
   which are covered by &#xA7; 8.2-107. The term does not include computer
   information, money, the subject matter of foreign exchange transactions,
   documents, letters of credit, letter-of-credit rights, instruments, investment
   property, accounts, chattel paper, deposit accounts, or general intangibles.

   34. &#8220;Incidental damages&#8221; resulting from breach of contract:

A. means compensation for any commercially reasonable charges, expenses, or
commissions reasonably incurred by an aggrieved party with respect to (i)
inspection, receipt, transmission, transportation, care, or custody of
identified copies or information that is the subject of the breach; (ii)
stopping delivery, shipment, or transmission; (iii) effecting cover or
retransfer of copies or information after the breach; (iv) other efforts after
the breach to minimize or avoid loss resulting from the breach; and (v) matters
otherwise incident to the breach; and

B. does not include consequential damages or direct damages.

   35. &#8220;Information&#8221; means data, text, images, sounds, mask works, or
   computer programs, including collections and compilations of them.

   36. &#8220;Information processing system&#8221; means an electronic system for
   creating, generating, sending, receiving, storing, displaying, or processing
   information.

   37. &#8220;Informational content&#8221; means information that is intended to
   be communicated to or perceived by an individual in the ordinary use of the
   information, or the equivalent of that information.

   38. &#8220;Informational rights&#8221; include all rights in information
   created under laws governing patents, copyrights, mask works, trade secrets,
   trademarks, publicity rights, or any other law that gives a person,
   independently of contract, a right to control or preclude another
   person&#8217;s use of or access to the information on the basis of the rights
   holder&#8217;s interest in the information.

   39. &#8220;Insurance services transaction&#8221; means an agreement between an
   insurer and an insured that provides for, or a transaction that is or entails
   access to, use, transfer, clearance, settlement, or processing of:

A. an insurance policy, contract, or certificate; or

B. a right to payment under an insurance policy, contract or certificate.

   40. &#8220;Knowledge,&#8221; with respect to a fact, means actual knowledge of
   the fact.

   41. &#8220;License&#8221; means a contract that authorizes access to, or use,
   distribution, performance, modification, or reproduction of, information or
   informational rights, but expressly limits the access or uses authorized or
   expressly grants fewer than all rights in the information, whether or not the
   transferee has title to a licensed copy. The term includes an access contract,
   a lease of a computer program, and a consignment of a copy. The term does not
   include a reservation or creation of a security interest to the extent the
   interest is governed by Title 8.9A.

   42. &#8220;Licensee&#8221; means a person entitled by agreement to acquire or
   exercise rights in, or to have access to or use of, computer information under
   an agreement to which this chapter applies. A licensor is not a licensee with
   respect to rights reserved to it under the agreement.

   43. &#8220;Licensor&#8221; means a person obligated by agreement to transfer
   or create rights in, or to give access to or use of, computer information or
   informational rights in it under an agreement to which this chapter applies.
   Between the provider of access and a provider of the informational content to
   be accessed, the provider of content is the licensor. In an exchange of
   information or informational rights, each party is a licensor with respect to
   the information, informational rights, or access it gives.

   44. &#8220;Mass-market license&#8221; means a standard form used in a
   mass-market transaction.

   45. &#8220;Mass-market transaction&#8221; means a transaction that is:

A. a consumer contract; or

B. any other transaction with an end-user licensee if:

i. the transaction is for information or informational rights directed to the
general public as a whole, including consumers, under substantially the same
terms for the same information;

   ii. the licensee acquires the information or informational rights in a retail
   transaction under terms consistent with an ordinary transaction in a retail
   market; and

   iii. the transaction is not (a) a contract for redistribution or for public
   performance or public display of a copyrighted work; (b) a transaction in
   which the information is customized or otherwise specially prepared by the
   licensor for the licensee, other than minor customization using a capability
   of the information intended for that purpose; (c) a site license; or (d) an
   access contract.

   46. &#8220;Merchant&#8221; means a person:

A. who deals in information or informational rights of the kind involved in the
transaction;

B. who by the person&#8217;s occupation holds himself out as having knowledge or
skill peculiar to the relevant aspect of the business practices or information
involved in the transaction; or

C. to whom the knowledge or skill peculiar to the practices or information
involved in the transaction may be attributed by the person&#8217;s employment
of an agent or broker or other intermediary who by his occupation holds himself
out as having the knowledge or skill.

   47. &#8220;Nonexclusive license&#8221; means a license that does not preclude
   the licensor from transferring to other licensees the same information,
   informational rights, or contractual rights within the same scope. The term
   includes a consignment of a copy.

   48. &#8220;Notice&#8221; of a fact means knowledge of the fact, receipt of
   notification of the fact, or reason to know the fact exists.

   49. &#8220;Notify&#8221; or &#8220;give notice&#8221; means to take such steps
   as may be reasonably required to inform the other person in the ordinary
   course, whether or not the other person actually comes to know of it.

   50. &#8220;Party&#8221; means a person that engages in a transaction or makes
   an agreement under this chapter.

   51. &#8220;Person&#8221; means an individual, corporation, business trust,
   estate, trust, partnership, limited liability company, association, joint
   venture, governmental subdivision, instrumentality, or agency, public
   corporation, or any other legal or commercial entity.

   52. &#8220;Published informational content&#8221; means informational content
   prepared for or made available to recipients generally, or to a class of
   recipients, in substantially the same form. The term does not include
   informational content that is (i) customized for a particular recipient by one
   or more individuals acting as or on behalf of the licensor, using judgment or
   expertise or (ii) provided in a special relationship of reliance between the
   provider and the recipient.

   53. &#8220;Receipt&#8221; means:

A. with respect to a copy, taking delivery; or

B. with respect to a notice:

i. coming to a person&#8217;s attention; or

   ii. being delivered to and available at a location or system designated by
   agreement for that purpose or, in the absence of an agreed location or system:
   (a) being delivered at the person&#8217;s residence, or the person&#8217;s
   place of business through which the contract was made, or at any other place
   held out by the person as a place for receipt of communications of the kind;
   or (b) in the case of an electronic notice, coming into existence in an
   information processing system or at an address in that system in a form
   capable of being processed by or perceived from a system of that type by a
   recipient, if the recipient uses, or otherwise has designated or holds out,
   that place or system for receipt of notices of the kind to be given and the
   sender does not know that the notice cannot be accessed from that place.

   54. &#8220;Receive&#8221; means to take receipt.

   55. &#8220;Record&#8221; 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.

   56. &#8220;Release&#8221; means an agreement by a party not to object to, or
   exercise any rights or pursue any remedies to limit, the use of information or
   informational rights which agreement does not require an affirmative act by
   the party to enable or support the other party&#8217;s use of the information
   or informational rights. The term includes a waiver of informational rights.

   57. &#8220;Return,&#8221; with respect to a record containing contractual
   terms that were rejected, refers only to the computer information and means:

A. in the case of a licensee that rejects a record regarding a single
information product transferred for a single contract fee, a right to
reimbursement of the contract fee paid from the person to which it was paid or
from another person that offers to reimburse that fee, on (i) submission of
proof of purchase and (ii) proper redelivery of the computer information and all
copies within a reasonable time after initial delivery of the information to the
licensee;

B. in the case of a licensee that rejects a record regarding an information
product provided as part of multiple information products integrated into and
transferred as a bundled whole but retaining their separate identity:

   1. a right to reimbursement of any portion of the aggregate contract fee
   identified by the licensor in the initial transaction as charged to the
   licensee for all bundled information products which was actually paid, on (i)
   rejection of the record before or during the initial use of the bundled
   product; (ii) proper redelivery of all computer information products in the
   bundled whole and all copies of them within a reasonable time after initial
   delivery of the information to the licensee; and (iii) submission of proof of
   purchase; or

   2. a right to reimbursement of any separate contract fee identified by the
   licensor in the initial transaction as charged to the licensee for the
   separate information product to which the rejected record applies, on (i)
   submission of proof of purchase and (ii) proper redelivery of that computer
   information product and all copies within a reasonable time after initial
   delivery of the information to the licensee; or

C. in the case of a licensor that rejects a record proposed by the licensee, a
right to proper redelivery of the computer information and all copies from the
licensee, to stop delivery or access to the information by the licensee, and to
reimbursement from the licensee of amounts paid by the licensor with respect to
the rejected record, on reimbursement to the licensee of contract fees that it
paid with respect to the rejected record, subject to recoupment and setoff.

   58. &#8220;Scope,&#8221; with respect to terms of a license, means:

A. the licensed copies, information, or informational rights involved;

B. the use or access authorized, prohibited, or controlled;

C. the geographic area, market, or location; or

D. the duration of the license.

   59. &#8220;Seasonable,&#8221; with respect to an act, means taken within the
   time agreed or, if no time is agreed, within a reasonable time.

   60. &#8220;Send&#8221; means, with any costs provided for and properly
   addressed or directed as reasonable under the circumstances or as otherwise
   agreed, to deposit a record in the mail or with a commercially reasonable
   carrier, to deliver a record for transmission to or re-creation in another
   location or information processing system, or to take the steps necessary to
   initiate transmission to or re-creation of a record in another location or
   information processing system. In addition, with respect to an electronic
   message, the message must be in a form capable of being processed by or
   perceived from a system of the type the recipient uses or otherwise has
   designated or held out as a place for the receipt of communications of the
   kind sent. Receipt within the time in which it would have arrived if properly
   sent, has the effect of a proper sending.

   61. &#8220;Standard form&#8221; means a record or a group of related records
   containing terms prepared for repeated use in transactions and so used in a
   transaction in which there was no negotiated change of terms by individuals
   except to set the price, quantity, method of payment, selection among standard
   options, or time or method of delivery.

   62. &#8220;State&#8221; 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.

   63. &#8220;Term,&#8221; with respect to an agreement, means that portion of
   the agreement that relates to a particular matter.

   64. &#8220;Termination&#8221; means the ending of a contract by a party
   pursuant to a power created by agreement or law otherwise than because of
   breach of contract.

   65. &#8220;Transfer&#8221;:

A. with respect to a contractual interest, includes an assignment of the
contract, but does not include an agreement merely to perform a contractual
obligation or to exercise contractual rights through a delegate or sublicensee;
and

B. with respect to computer information, includes a sale, license, or lease of a
copy of the computer information and a license or assignment of informational
rights in computer information.

   66. &#8220;Usage of trade&#8221; means any practice or method of dealing that
   has 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.

b. The following definitions in other titles apply to this chapter:

   1. &#8220;Burden of establishing&#8221; &#xA7; 8.1A-201.

   2. &#8220;Document of title&#8221; &#xA7; 8.1A-201.

   3. &#8220;Financial asset&#8221; &#xA7; 8.8A-102.

   4. &#8220;Funds transfer&#8221; &#xA7; 8.4A-104.

   5. &#8220;Identification&#8221; to the contract &#xA7; 8.2-501.

   6. &#8220;Instrument&#8221; &#xA7; 8.9A-102.

   7. &#8220;Investment property&#8221; &#xA7; 8.9A-102.

   8. &#8220;Item&#8221; &#xA7; 8.4-104.

   9. &#8220;Letter of credit&#8221; &#xA7; 8.5A-102.

   10. &#8220;Payment order&#8221; &#xA7; 8.4A-103.

   11. &#8220;Sale&#8221; &#xA7; 8.2-106.

HISTORY: 2000, cc. 101, 996; 2001, c. 763; 2003, c. 353; 2004, c. 794.