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Appendix 4 E-Sign |
From
the
[wais.access.gpo.gov]
[Laws
in effect as of January 3, 2005]
[Document
not affected by Public Laws enacted between
January 3, 2005 and June 7, 2006]
[CITE:
15USC7001]
TITLE 15--COMMERCE AND TRADE
CHAPTER 96--ELECTRONIC
SIGNATURES IN GLOBAL AND NATIONAL COMMERCE
SUBCHAPTER
I--ELECTRONIC RECORDS AND SIGNATURES IN COMMERCE
Sec. 7001.
General rule of validity
(a) In general
Notwithstanding any statute,
regulation, or other rule of law (other than this subchapter and subchapter II
of this chapter), with respect to any transaction in or affecting interstate or
foreign commerce--
(1)
a signature, contract, or other record relating to such transaction may not be
denied legal effect, validity, or
enforceability solely because it is in electronic form; and
(2) a contract relating to such transaction may not be denied
legal effect, validity, or enforceability solely because an electronic signature
or electronic record was used in its formation.
(b)
Preservation of rights and obligations
This subchapter does not--
(1)
limit, alter, or otherwise affect any requirement imposed by a statute,
regulation, or rule of law relating to the rights and obligations of persons
under such statute, regulation, or rule of law other than a requirement that
contracts or other records be written, signed, or in nonelectronic
form; or
(2)
require any person to agree to use or accept electronic records or electronic
signatures, other than a governmental agency with respect to a record other
than a contract to which it is a party.
(c)
Consumer disclosures
(1) Consent to electronic records
Notwithstanding
subsection (a) of this section, if a statute, regulation, or other rule of law
requires that information relating to a transaction or transactions in or
affecting interstate or foreign commerce be provided or made available to a
consumer in writing, the use of an electronic record to provide or make
available (whichever is required) such information satisfies the requirement
that such information be in writing if--
(A) the consumer has affirmatively consented to
such use and has not withdrawn such consent;
(B) the consumer, prior to consenting, is
provided with a clear and conspicuous statement--
(i) informing the consumer of (I) any right or
option of the consumer to have the record provided or made available on paper
or in nonelectronic form, and (II) the right of the
consumer to withdraw the consent to have the record provided or made available
in an electronic form and of any conditions, consequences (which may include
termination of the parties' relationship), or fees in the event of such
withdrawal;
(ii) informing the consumer of whether the
consent applies (I) only to the particular transaction which gave rise to the
obligation to provide the record, or (II) to identified categories of records
that may be provided or made available during the course of the parties'
relationship;
(iii) describing the procedures the consumer must use to withdraw
consent as provided in clause (i) and to update
information needed to contact the consumer electronically; and
(iv) informing the consumer (I) how, after the consent, the consumer
may, upon request, obtain a paper copy of an electronic record, and (II)
whether any fee will be charged for such copy;
(C) the consumer--
(i) prior to
consenting, is provided with a statement of the hardware and software
requirements for access to and retention of the electronic records; and
(ii) consents electronically, or confirms his or her consent
electronically, in a manner that reasonably demonstrates that the consumer can
access information in the electronic form that will be used to provide the
information that is the subject of the consent; and
(D) after the consent of a consumer in
accordance with subparagraph (A), if a change in the hardware or software
requirements needed to access or retain electronic records creates a material
risk that the consumer will not be able to access or retain a subsequent
electronic record that was the subject of the consent, the person providing the
electronic record--
(i) provides the
consumer with a statement of (I) the revised hardware and software requirements
for access to and retention of the electronic records, and (II) the right to
withdraw consent without the imposition of any fees for such withdrawal and
without the imposition of any condition or consequence that was not disclosed
under subparagraph
(B)(i); and (ii) again complies with
subparagraph (C).
(2) Other rights
(A)
Preservation of consumer protections
Nothing in this subchapter affects the content or timing of any
disclosure or other record required to be provided or made available to any
consumer under any statute, regulation, or other rule of law.
(B)
Verification or acknowledgment
If a law that was enacted prior to this chapter expressly requires a
record to be provided or made available by a specified method that requires verification
or acknowledgment of receipt, the record may be provided or made available
electronically only if the method used provides verification or acknowledgment
of receipt (whichever is required).
(3) Effect
of failure to obtain electronic consent or confirmation of consent
The
legal effectiveness, validity, or enforceability of any contract executed by a
consumer shall not be denied solely because of the failure to obtain electronic
consent or confirmation of consent by that consumer in accordance with
paragraph (1)(C)(ii).
(4) Prospective effect
Withdrawal of consent by a consumer shall not affect the legal
effectiveness, validity, or enforceability of electronic records provided or
made available to that consumer in accordance with paragraph (1) prior to
implementation of the consumer's withdrawal of consent. A consumer's withdrawal
of consent shall be effective within a reasonable period of time after receipt
of the withdrawal by the provider of the record. Failure to comply with
paragraph
(1)(D) may,
at the election of the consumer, be treated as a withdrawal of consent for
purposes of this paragraph.
(5) Prior consent
This
subsection does not apply to any records that are provided or made available to
a consumer who has consented prior to the effective date of this subchapter to
receive such records in electronic form as permitted by any statute,
regulation, or other rule of law.
(6) Oral communications
An
oral communication or a recording of an oral communication shall not qualify as
an electronic record for purposes of this subsection except as otherwise
provided under applicable law.
(d)
Retention of contracts and records
(1) Accuracy and accessibility
If a
statute, regulation, or other rule of law requires that a contract or other
record relating to a transaction in or affecting interstate or foreign commerce
be retained, that requirement is met by retaining an electronic record of the information
in the contract or other record that--
(A) accurately reflects the information set forth in the
contract or other record; and
(B)
remains accessible to all persons who are entitled to access by statute,
regulation, or rule of law, for the period required by such statute,
regulation, or rule of law, in a form that is capable of being accurately
reproduced for later reference, whether by transmission, printing, or
otherwise.
(2) Exception
A
requirement to retain a contract or other record in accordance with paragraph
(1) does not apply to any information whose sole purpose is to enable the
contract or other record to be sent, communicated, or received.
(3) Originals
If a
statute, regulation, or other rule of law requires a contract or other record
relating to a transaction in or affecting interstate or foreign commerce to be
provided, available, or retained in its original form, or provides consequences
if the contract or other record is not provided, available, or retained in its
original form, that statute, regulation, or rule of law is satisfied by an
electronic record that complies with paragraph (1).
(4) Checks
If a
statute, regulation, or other rule of law requires the retention of a check,
that requirement is satisfied by retention of an electronic record of the
information on the front and back of the check in accordance with paragraph
(1).
(e)
Accuracy and ability to retain contracts and other records
Notwithstanding subsection
(a) of this section, if a statute, regulation, or other rule of law requires
that a contract or other record relating to a transaction in or affecting
interstate or foreign commerce be in writing, the legal effect, validity, or
enforceability of an electronic record of such contract or other record may be
denied if such electronic record is not in a form that is capable of being
retained and accurately reproduced for later reference by all parties or
persons who are entitled to retain the contract or other record.
(f)
Proximity
Nothing in this subchapter
affects the proximity required by any statute, regulation, or other rule of law
with respect to any warning, notice, disclosure, or other record required to be
posted, displayed, or publicly affixed.
(g)
Notarization and acknowledgment
If a statute, regulation, or
other rule of law requires a signature or record relating to a transaction in
or affecting interstate or foreign commerce to be notarized, acknowledged,
verified, or made under oath, that requirement is satisfied if the electronic
signature of the person authorized to perform those acts, together with all
other information required to be included by other applicable statute,
regulation, or rule of law, is attached to or logically associated with the
signature or record.
(h)
Electronic agents
A contract or other record
relating to a transaction in or affecting interstate or foreign commerce may
not be denied legal effect, validity, or enforceability solely because its
formation, creation, or delivery involved the action of one or more electronic
agents so long as the action of any such electronic agent is legally
attributable to the person to be bound.
(i) Insurance
It is the specific intent of
the Congress that this subchapter and subchapter II of this chapter apply to
the business of insurance.
(j)
Insurance agents and brokers
An insurance agent or broker
acting under the direction of a party that enters into a contract by means of
an electronic record or electronic signature may not be held liable for any
deficiency in the electronic procedures agreed to by the parties under that
contract if--
(1) the agent or broker has not engaged in negligent, reckless,
or intentional tortious conduct;
(2) the agent or broker was not involved in the development or
establishment of such electronic procedures; and
(3) the agent or broker did not deviate from such procedures.
(Pub. L.
106-229, title I, Sec. 101, June 30, 2000, 114 Stat.
464.)
References in Text
This chapter, referred to in
subsec. (c)(2)(B), was in the original ``this Act'',
meaning Pub. L. 106-229, June 30, 2000, 114 Stat. 464, which is classified
principally to this chapter. For complete classification of this Act to the
Code, see Short Title note below and Tables.
For the
effective date of this subchapter, referred to in subsec.
(c)(5), see Effective Date note below.
Effective Date
Pub.
L. 106-229, title I, Sec. 107, June 30, 2000, 114 Stat. 473, provided that:
``(a)
In General.--Except as provided in subsection (b), this title [enacting this
subchapter] shall be effective on October 1, 2000.
``(b)
Exceptions.--
``(1) Record retention.--
``(A) In general.--Subject to subparagraph (B), this title [enacting
this subchapter] shall be effective on March 1, 2001, with respect to a
requirement that a record be retained imposed by--
``(i) a Federal
statute, regulation, or other rule of law, or
``(ii) a State statute, regulation, or other
rule of law administered or promulgated by a State regulatory agency.
``(B) Delayed effect for pending
rulemakings.--If on March 1, 2001, a Federal regulatory agency or State
regulatory agency has announced, proposed, or initiated, but not completed, a
rulemaking proceeding to prescribe a regulation under section 104(b)(3) [15 U.S.C. 7004(b)(3)] with respect to a requirement described
in subparagraph (A), this title shall be effective on June 1, 2001, with
respect to such requirement.
``(2)
Certain guaranteed and insured loans.--With regard to any transaction involving
a loan guarantee or loan guarantee commitment (as those terms are defined in
section 502 of the Federal Credit Reform Act of 1990 [2 U.S.C.
661a]), or involving a program listed in the Federal Credit Supplement, Budget
of the United States, FY 2001, this title applies only to such transactions
entered into, and to any loan or mortgage made, insured, or guaranteed by the
United States Government thereunder, on and after one
year after the date of enactment of this Act [June 30, 2000].
``(3) Student loans.--With respect to any
records that are provided or made available to a consumer pursuant to an
application for a loan, or a loan made, pursuant to title IV of the Higher
Education Act of 1965 [20 U.S.C. 1070 et seq., 42 U.S.C. 2751 et seq.], section 101(c) of this Act [15 U.S.C. 7001(c)] shall not apply until the earlier of--
``(A) such time as the Secretary of Education publishes revised
promissory notes under section 432(m) of the Higher Education Act of 1965 [20 U.S.C. 1082(m)]; or
``(B) one year after the date of enactment of this Act [June
30, 2000].''
Short Title
Pub.
L. 106-229, Sec. 1, June 30, 2000, 114 Stat. 464, provided that: ``This Act
[enacting this chapter and amending provisions set out as a note under section
231 of Title 47, Telegraphs, Telephones, and Radiotelegraphs] may be cited as
the `Electronic Signatures in Global and National Commerce Act'.''