current issues in electronic contracting stephen m. foxman philadelphia pbi - december 2, 2005...
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Current Issues in Electronic Contracting
Current Issues in Electronic Contracting
Stephen M. FoxmanPhiladelphia
PBI - December 2, 2005
E-Commerce: Legal and Practical Issues
Applicable Contract LawApplicable Contract Law
UCC - Sale of Goods 2-204 - Formation in General - covers electronic
contracts e-mail contracts; statute of frauds issues trading agreements - EDI
Uniform Electronic Transactions Act effective in PA January 15, 2000 adopted in 47 states and D.C. by May 2005
E-Sign, UCITA and State LawsE-Sign, UCITA and State Laws Federal E-Sign Law
preempts state law unless official UETA (or consistent law) adopted
unique versions of UETA may be preempted
Uniform Computer Information Transactions Act (UCITA) adopted in only VA and MD
resisted based on perceived consumer issues
State general contract law
UETA Validates Electronic Contracts, Signatures and Records Contrast with UCITA - UCITA limited to
agreements that create, modify, transfer, or license computer information covers software licensing and online
distribution of information
overlaps with UETA and covers contract formation and other issues dealt with by UCC for sale of goods
UETA Applies in PA
Applies to electronic record or signature created, generated, sent, communicated, received or stored after effective date (1/15/2000)
Virtually Identical to NCCUSL UETA PA version places burden on party disputing non-
consumer transaction to prove invalidity if parties agreed on security procedure or specific protocol in advance (Chapter 7)
PA version contains requirement of consumer consent to electronic contracting in certain cases (Chapter 9)
UETA Definitions
Electronic record: created, generated, sent, communicated, received or stored by electronic means
Electronic signature: 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 includes mouse click on “I Agree”, voice mail
Electronic: all electronic technology including mobile phone, fax, etc.
UETA Definitions
Security Procedure: procedure to verify that electronic signature, record or performance is that of a specific person or for detecting changes or errors; includes codes, identifying words or numbers, encryption, callback or other acknowledgement
Scope of UETA - Sec. 104
Does not cover wills, codicils and testamentary trusts
Does not cover UCC transactions, except for 1-107 (waiver or renunciation of claim or right
after breach) 1-206 (statute of frauds for personal property not
otherwise covered) Article 2 (sales); Article 2A (leases)
Transactions covered by Act are also subject to other applicable substantive law
Effect of UETA Electronic transactions treated the same as
if in written form - record or signature may not be denied legal effect because of electronic form - (303)
If a law requires a writing, an electronic record or signature satisfies the law - (303)
Non-waivable right to refuse to conduct business by electronic means - (301)
E-mail agreement of sale for sale of Liberty Place?; problem of unread consumer adhesion contracts
Application
Applies only to transactions between parties, who have agreed to conduct transactions by electronic means (301); may be implied by conduct
Electronic record is not enforceable against recipient if sender inhibits ability of recipient to print or store record (304)
Requirement to Send Written Information Requirement is satisfied if sent as
electronic record capable of being retained by the recipient at time of receipt (304)
Does not alter effect of other laws requiring particular method of posting, sending or formatting records (e.g., posting of eviction notice on property) (304)
Attribution - Sec. 305
Record attributable to a person if act of that person - may be shown in any manner, including by efficacy of security procedure
Effect of electronic record or signature determined by context and circumstances
Party alleging other party generated record or signed has burden of showing record or signature was act of other party or agent, BUT...
Attribution - Ch. 7
If parties adopt security procedure and it is relied upon, burden shifts to disputing party to show unauthorized use or procedure misused despite authorization (701)
Ch. 7 not applicable to consumer transactions
Errors in Transmission - Sec. 306 & Ch. 7
Automated transaction (electronic agents) may be avoided by prompt action and return of
consideration if no opportunity to prevent error
Not automated if no agreed security procedure, parties’
contract or other law, including law of mistake, controls
if agreed security procedure, “treated as not having been altered” (702), unless parties did not conform to procedure (306)
Notarization and Acknowledgements Electronic signature of person authorized
to notarize or acknowledge will be effective 30 days after adjustment of PA Notary Public Law so far, law not changed
Authentication and Digital SignaturesAuthentication and Digital Signatures Authentication of user: What you know
(password); What you have with you (smart card); What you are (biometrics)
Digital signatures: signed with encrypted private key and decoded with public key; hash function to protect against alteration before receipt
Use of encryption to protect transmissions and stored confidential information
Single sign on - Passport and Liberty Alliance
Retention of Records - Sec. 308
If law requires record, electronic records OK if accurate and accessible; may be done by service provider
Records of checks must contain information on front and back of check
Electronic records are admissible in evidence
Effect - written records may be discarded
Governmental agencies may specify additional requirements
Sending and Receipt - Sec. 311
Sent - addressed as designated by recipient, is capable of being processed and has entered system outside sender’s control
Received - enters recipient’s system and is capable of being processed; no requirement for individual to be aware of receipt
Place of Contract Formation - deemed sent from sender place of business, and received at recipient place of business (or residence) - not system location
Knowledge - if person aware of failure, legal effect determined by other applicable law - non-waivable
Transferable Records - Sec. 312
Covers electronic negotiable notes (other than checks), warehouse receipts, bills of lading, documents of title under UCC
Transferable record must be single authoritative unique copy, identifiable and unalterable; person controlling is “holder”
Delivery, possession and endorsement not required
Government Transactions - Ch. 5
Use of electronic records and signatures left in discretion of each agency
Effect - each governmental entity given option to determine extent to which it will use e-commerce
Executive agencies of PA must comply with Governor’s Office of Admin standards
Commonwealth Procurement Code authorizes electronic submission of bids and proposals
Consumer Transactions - Ch. 9
Consumer = “primarily for personal, family or household purposes”
For non-electronic consumer agreements, Ch. 9 requires consumer must separately agree to use of electronic means, manner of use, and must specify parts of transaction to be conducted electronically; cannot be waived or inferred
If party has actual knowledge that record not sent or received - then no legal effect (e.g., e-mail notice bounces back)
Effect of Federal E-Sign Law
Electronic Signatures in Global and National Commerce Act - signed 6/30/00 Similar to UETA in validating legal effect of electronic
signature or record, but is less comprehensive than UETA Preempts inconsistent state law, but does not preempt in
states that have adopted official text of 1999 UETA, or have adopted another statute, or any regulation, that is consistent with E-Sign Titles I and II does not favor a specific technology if enacted after E-Sign, makes specific reference to E-
Sign
National businesses should comply with both laws - assume E-Sign controls
Exclusions from E-Sign Law
E-Sign does not apply to wholly intrastate contracts wills, codicils or testamentary trusts, or
contracts regarding adoption, divorce or family law
UCC other than 1-107, 1-206, Articles 2 and 2A documents relating to foreclosure, eviction, and
repossession of primary residence notices regarding termination of health
insurance or life insurance notices of product recalls, health or safety risks
Shrink Wrap Contracts ProCD Inc. v. Zeidenberg -- knowledge of terms after
purchase but before use OK, where right of return; notice of unspecified additional terms before purchase
M.A. Mortenson v. Timberline -- customer did not install; knowledge of terms imputed from past use of earlier versions of software sufficient to provide notice
Hill v. Gateway; Brower v. Gateway -- knowledge of terms after opening box, but with 30 day right of return, OK; contra - Klocek v,. Gateway -- contract formed at time of order, not receipt of box and terms
Contract as consent v. contract as product Viral contract -- terms run with product
Click Wrap ContractsClick Wrap Contracts Forrest v. Verizon (D.C. App. Ct. 2002) -- Virginia forum
selection clause in Verizon click-wrap DSL service agreement enforced; plaintiff being forced to litigate in VA (as D.C. resident), and loss of right to file class action under VA law did not make clause unreasonable
Comb v. PayPal (N.D. Cal. 2002) -- PayPal arbitration clause and forum selection clause in click-wrap agreement found substantively unconscionable under CA law because (1) could be amended without notice; (2) forced arbitration under costly AAA rules; (3) national users forced to arbitrate in CA; (4) PayPal could hold customer funds until dispute resolved; and (5) requires users to forego class action relief. Taken together, this allowed PayPal "to insulate itself contractually from any meaningful challenge to its alleged practices"
Browse Wrap Contracts
Implied contract or conditional gift analysisRegister.com v. Verio (2000) -- posted terms
specified that use of database indicated assent to terms prohibiting copying and distribution; Verio used software robot to extract information - held that robot query coupled with knowledge of terms bound Verio to terms (note: no “I Agree” button)
Specht v. Netscape (aff’d 2002) -- posted downloadable software license terms held not to apply because link to terms not conspicuous, no “I Agree” button; “please review and agree” language at click for download just invitation and not precondition to use
Practice Pointers - See list in materials Terms in plain English, copyable and printable; record
of dates and changes in terms
Clear reference to terms on product, in advertising, and at download
Use “I Agree” / “I Do Not Agree” click online and upon use; separate assent or highlight unusual terms; no access until user has accepted terms; keep record (user acct log)
Assent to electronic contract; opportunity to correct errors for online orders; clear privacy policy (relate to offline)
Provide for return and refund where purchase made before terms can be reviewed and accepted
Web Site Posted Terms of Use See Ticketmaster v. Tickets.com -- prohibition in
posted terms against deep linking not enforced
Clear reference to terms and access from all pages
Use “I Agree” / “I Do Not Agree” click where significant liability exposure or valuable material involved
No liability for: implied warranties of merchantability or fitness for particular purpose; consequential damages; interruption or inaccessibility; material provided by others or through linked sites
Establish rules on postings - chat rooms, forums and bulletin boards
Global Contracting Issues Advice from local counsel; make sure choice of law,
jurisdiction and venue selection clauses are enforceable
Disclaim Convention on International Sales of Goods (BtoB only)
Dispute resolution issues; arbitration generally is best Laws differ - e.g., French language requirements in
Quebec; termination rights, consumer rights, etc. Currency and foreign exchange issues on pricing; tax
collection and assessment issues Export restrictions Privacy rules - e.g., EU Directive on Data Protection
Virtual GoodsVirtual Goods Consumer given right to use digital resource, such as
music, video game resources, graphic or animation, e-book
Format issues; enabling software or hardware (device specific); tie-in to goods in real world
Control access to resource (e.g., PIN no.) and restriction on copying or distribution or use on multiple devices (Digital Rights Management - DRM)
License restrictions on use; detection of wrongful use Ability to obtain and use customer info for marketing Special problems with warranties, right to return
“goods”, validation of “delivery” and “receipt”, taxation categories