Author’s note: The Uniform Electronic Transactions Act (UETA) and revisions to the Uniform Commercial Code proposed by the National Conference of Commissioners on Uniform State Laws (NCCUSL) created a foundation for uniform recognition of electronic media to form a contract.  However, it may be several years before all state legislatures enact the proposal(s) as law in their respective states.  In addition, the Electronic Signatures in Global and National Commerce Act (E-SIGN) provides federal law on this subject, but it only applies to interstate or international transactions.  Therefore, it is prudent to utilize a form of this ECA to cover electronic transactions until the law on this subject is settled.

   

 

ELECTRONIC COMMERCE AGREEMENT

 EXAMPLE

 

 

This Electronic Commerce Agreement is made by and between the following parties in order to facilitate their transacting business via electronic data interchange (EDI) or other method of electronic commerce.

Purchaser:            _______________________________________

                        _______________________________________

                        _______________________________________

 

Seller:               _______________________________________

                        _______________________________________

                        _______________________________________

1.                  Parties Intend to be Bound by Electronic Data Exchanges

Both parties to this agreement hereby evidence their intention to be bound by the electronic exchanges as described herein and specifically agree as follows:

(a)                The parties agree that no separate “writing” shall be required in order to make their EDI transactions legally binding, notwithstanding any contrary requirement in any law.

(b)               To the maximum extent permitted by law, the parties hereby agree that the electronic data interchange procedures will be adequate to satisfy the requirement of any writing which may be imposed by any law.

(c)                The parties agree that no “signature” shall be required in order to have legally enforceable EDI transactions between them.

(d)               To the maximum extent permitted by law, the parties hereby agree that the confidential codes that they will be using in order to transmit information to each other will be adequate as any necessary “signature” which may be required by any law.

(e)                The parties hereby agree that neither will raise any defense of lack of writing or lack of signature or any other similar defense based upon a “Statute of Frauds” or similar rule in any dispute which may arise between them for any transaction entered into through electronic data interchange.

2.                  Offer and Acceptance

Electronic transmission of an order by Purchaser to Seller shall be effective as an offer when it is received on the Seller’s terminal.  Said offer shall be accepted by Seller in any one of the following ways:

(a)    Via electronic transmission of an acknowledgment, acceptance or receipt of the offer; or

(b)  The shipment of the goods called for in the offer.

3.                  Terms of the Transaction(s)

The terms of any electronic transaction shall be those terms and conditions which may be contained in the electronic data transmissions, plus the terms and conditions attached hereto as Exhibit A.

4.                  Miscellaneous

A.        The parties of this agreement may send and receive purchase and sale documents electronically themselves through direct interchange or through a third party network (TPN).  If one party to this agreement selects a TPN to facilitate the electronic interchange, the party selecting that TPN shall bear responsibility for any mistakes of the TPN.  If both parties jointly select a single TPN to facilitate their interchanges, responsibility for any mistakes or negligence of the TPN shall be borne equally.

 B.                 Nothing in this agreement shall be deemed to create any responsibility of either
             party to buy or sell any specific goods.  This agreement is solely intended to    
             facilitate the handling of electronic transactions between the parties.  Neither 
             party shall be entitled to, or required to do any certain amount of business with 
             the other, nor shall either party be required to do business with the other for any 
             certain period of time.

C.                 This agreement may be terminated by either party by giving _____ days written notice to the other.  Such termination of this agreement shall not affect any transactions entered into before the effective date of the termination, even if the performance of such transactions is to take place after the effective date of termination.

D.                 The parties agree that the documents to be exchanged electronically, the format to be used, and the products covered are those identified and mutually agreed upon by both parties.  While it is the intent of both parties to use electronic transmission to the extent practical, this agreement does not preclude the exchange of documents by other methods when required by special circumstance.

E.                  Each party shall adopt and maintain reasonable security procedures to ensure (1) that documents transmitted electronically are authorized, (2) that its business records and data are protected from improper use, and (3) that the security of access codes and electronic identification codes is maintained.

F.                  Upon receipt of an electronic document, the receiving party shall promptly issue an acknowledgment to the sending party.  Such acknowledgment is solely for the purpose of acknowledging receipt of electronic documents.

G.                 This agreement shall be governed by the laws of the State  of ______________________.

© Ernest Gabbard, 2004

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