Chapter 91

18 GCA BUSINESS STRUCTURE & FUNCTION CH. 91 - UNIFORM ELECTRONIC TRANSACTIONS ACT CHAPTER 91 UNIFORM ELECTRONIC TRANSACTIONS ACT SOURCE: Entire chapter added by P.L. 33-015:1 (Apr. 1, 20 15). § 91101. Short Title. § 91102. Definitions. § 91103. Scope. § 91104. Prospective Application. § 91105. Use of Electronic Records and Electronic S ignatures; Variation by Agreement. § 91106. Construction and Application. § 91107. Legal Recognition of Electronic Records, E lectronic Signatures, and Electronic Contracts. § 91108. Provision of Information in Writing; Prese ntation of Records. § 91109. Attribution and Effect of Electronic Recor d and Electronic Signature. § 91110. Effect of Change or Error. § 91111. Notarization and Acknowledgment. § 91112. Retention of Electronic Records; Originals . § 91113. Admissibility in Evidence. § 91114. Automated Transaction. § 91115. Time and Place of Sending and Receipt. § 91116. Transferable Records. § 91117. Creation and Retention of Electronic Recor ds and Conversion of Written Records by Governmental Agencies. § 91118. Acceptance and Distribution of Electronic Records by Governmental Agencies. § 91119. Interoperability. § 91120. Severability Clause.

d Conversion of Written Records by Governmental Agencies. § 91118. Acceptance and Distribution of Electronic Records by Governmental Agencies. § 91119. Interoperability. § 91120. Severability Clause. § 91101. Short Title. This Chapter shall be cited as the ‘Uniform Electronic Transactions Act.’ § 91102. Definitions. In this Chapter: (a) Agreement means the bargain of the parties in fact, as found COL124201518 GCA BUSINESS STRUCTURE & FUNCTION CH. 91 - UNIFORM ELECTRONIC TRANSACTIONS ACT in their language or inferred from other circumstan ces and from rules, regulations, and procedures given the effect of agr eements under laws otherwise applicable to a particular transaction. (b) 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 fulfillin g an obligation required by the transaction. (c) Computer program means a set of statements or instructions to be used directly or indirectly in an information pr ocessing system in order to

ulfillin g an obligation required by the transaction. (c) Computer program means a set of statements or instructions to be used directly or indirectly in an information pr ocessing system in order to bring about a certain result. (d) Contract means the total legal obligation resulting from th e parties’ agreement as affected by this Chapter, and other applicable laws. (e) Electronic means relating to technology having electrical, digital, magnetic, wireless, optical, electromagnet ic, or similar capabilities. (f) Electronic agent means a computer program or an electronic or other automated means used independently to init iate an action or respond to electronic records or performances in wh ole or in part, without review or action by an individual. (g) Electronic record means a record created, generated, sent, communicated, received, or stored by electronic mea ns. (h) 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 rec ord. (i) Governmental agency means an executive, legislative, or judicial agency, department, board, commission, aut hority,

record and executed or adopted by a person with the intent to sign the rec ord. (i) Governmental agency means an executive, legislative, or judicial agency, department, board, commission, aut hority, institution, or instrumentality of the federal government or of a state or of a county, municipality, or other political subdivision of a s tate. (j) Information means data, text, images, sounds, codes, computer programs, software, databases, or the like . COL124201518 GCA BUSINESS STRUCTURE & FUNCTION CH. 91 - UNIFORM ELECTRONIC TRANSACTIONS ACT (k) Information processing system means an electronic system for creating, generating, sending, receiving, storing, displaying, or processing information. (l) Person means an individual, corporation, business trust, estate, trust, partnership, limited liability compa ny, association, joint venture, governmental agency, public corporation, o r any other legal or commercial entity. (m) 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. (n) Security procedure means a procedure employed for the purpose of verifying that an electronic signature,

or that is stored in an electronic or other medium and is retrievable in perceivable form. (n) 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 chang es or errors in the information in an electronic record. The term inclu des a procedure that requires the use of algorithms or other codes, iden tifying words or numbers, encryption, or callback or other acknowled gment procedures. (o) State means a state of the United States, the District o f Columbia, Puerto Rico, the United States Virgin Isl ands, Guam, the Northern Mariana Islands, American Samoa, or any te rritory or insular possession subject to the jurisdiction of the Unite d 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. (p) Transaction means an action or set of actions occurring between two (2) or more persons relating to the con duct of business, commercial, or governmental affairs. § 91103. Scope. (a) Except as otherwise provided in Subsection (b), this Chapter applies to electronic records and

e persons relating to the con duct of business, commercial, or governmental affairs. § 91103. Scope. (a) Except as otherwise provided in Subsection (b), this Chapter applies to electronic records and electronic signat ures relating to a transaction. (b) This Chapter does not apply to a transaction to the extent it is governed by: (1) a law governing the creation and execution of w ills, codicils, or testamentary trusts; or (2) Title 13 of the Guam Code Annotated [The Unifor m COL124201518 GCA BUSINESS STRUCTURE & FUNCTION CH. 91 - UNIFORM ELECTRONIC TRANSACTIONS ACT Commercial Code] other than Division 1 § 1107 [Waiv er or renunciation of claim or right after breach], Divis ion 1 § 1210 [Presumptions Affect Burden of Producing Evidence], and Division 2 [Sales]. (c) This Chapter applies to an electronic record or electronic signature otherwise excluded from the application of this Cha pter under Subsection (b) to the extent it is governed by a law other tha n those specified in Subsection (b). (d) A transaction subject to this Chapter is also s ubject to other applicable substantive law. § 91104. Prospective Application.

t is governed by a law other tha n those specified in Subsection (b). (d) A transaction subject to this Chapter is also s ubject to other applicable substantive law. § 91104. Prospective Application. This Chapter applies to any electronic record or el ectronic signature created, generated, sent, communicated, received, o r stored on or after the effective date of this Chapter. § 91105. Use of Electronic Records and Electronic Signatures; Variation by Agreement. (a) This Chapter does not require a record or signa ture to be created, generated, sent, communicated, received, stored, or otherwise processed or used by electronic means or in electronic form. (b) This Chapter applies only to transactions betwe en parties each of which has agreed to conduct transactions by electro nic means. Whether the parties agree to conduct a transaction by electroni c means is determined from the context and surrounding circumstances, includin g the parties’ conduct. (c) A party that agrees to conduct a transaction by electronic means may refuse to conduct other transactions by electro nic means. The right granted by this subsection may not be waived by agr eement.

) A party that agrees to conduct a transaction by electronic means may refuse to conduct other transactions by electro nic means. The right granted by this subsection may not be waived by agr eement. (d) Except as otherwise provided in this Chapter, t he effect of any of its provisions may be varied by agreement. The pres ence in certain provisions of this Chapter of the words ‘unless oth erwise agreed’, or words of similar import, does not imply that the effect o f other provisions may not be varied by agreement. (e) Whether an electronic record or electronic sign ature has legal consequences is determined by this Chapter, and oth er applicable laws. § 91106. Construction and Application. COL124201518 GCA BUSINESS STRUCTURE & FUNCTION CH. 91 - UNIFORM ELECTRONIC TRANSACTIONS ACT This Chapter must be construed and applied: (a) to facilitate electronic transactions consisten t with other applicable laws; (b) to be consistent with reasonable practices conc erning electronic transactions, and with the continued exp ansion of those practices; and (c) to effectuate its general purpose to make unifo rm the law with respect to the subject of this Chapter among the st ates enacting it.

ns, and with the continued exp ansion of those practices; and (c) to effectuate its general purpose to make unifo rm the law with respect to the subject of this Chapter among the st ates enacting it. § 91107. Legal Recognition of Electronic Records, Electronic Signatures, and Electronic Contracts. (a) A record or signature may not be denied legal e ffect or enforceability solely because it is in electronic f orm. (b) A contract may not be denied legal effect or en forceability solely because an electronic record was used in its format ion. (c) If a law requires a record to be in writing, an electronic record satisfies the law. (d) If a law requires a signature, an electronic si gnature satisfies the law. § 91108. Provision of Information in Writing; Pres entation of Records. (a) If parties have agreed to conduct a transaction by electronic means and a law requires a person to provide, send, or de liver information in writing to another person, the requirement is satis fied if the information is provided, sent, or delivered, as the case may be, i n an electronic record capable of retention by the recipient at the time o f receipt.

r person, the requirement is satis fied if the information is provided, sent, or delivered, as the case may be, i n an electronic record capable of retention by the recipient at the time o f receipt. An electronic record is not capable of retention by the recipient if the sender or its information processing system inhibits the ability of the recipient to print or store the electronic record. (b) If a law other than this Chapter requires a rec ord (1) to be posted or displayed in a certain manner, (2) to be sent, communicated, or transmitted by a s pecified method, or (3) to contain information that is formatted in a c ertain manner, the COL124201518 GCA BUSINESS STRUCTURE & FUNCTION CH. 91 - UNIFORM ELECTRONIC TRANSACTIONS ACT following rules apply: (A) The record must be posted or displayed in the m anner specified in the other law. (B) Except as otherwise provided in Subsection (d)( 2), the record must be sent, communicated, or transmitted b y the method specified in the other law. (C) The record must contain the information formatt ed in the manner specified in the other law. (c) If a sender inhibits the ability of a recipient to store or print an electronic record, the

r law. (C) The record must contain the information formatt ed in the manner specified in the other law. (c) If a sender inhibits the ability of a recipient to store or print an electronic record, the electronic record is not enf orceable against the recipient. (d) The requirements of this Section may not be var ied by agreement, but: (1) to the extent a law other than this Chapter req uires information to be provided, sent, or delivered in w riting but permits that requirement to be varied by agreement, the req uirement under Subsection (a) that the information be in the form of an electronic record capable of retention may also be varied by a greement; and (2) a requirement under a law other than this Chapt er to send, communicate, or transmit a record by first-class ma il, postage prepaid or regular United States mail, may be varied by agr eement to the extent permitted by the other law. 2015 NOTE: Subsection designations in (b) altered to adhere to the Compiler’s alpha-numeric scheme. § 91109. Attribution and Effect of Electronic Reco rd and Electronic Signature. (a) An electronic record or electronic signature is attributable to a person if it was the act of the person.

c scheme. § 91109. Attribution and Effect of Electronic Reco rd and Electronic Signature. (a) An electronic record or electronic signature is attributable to a person if it was the act of the person. The act of the person may be shown in any manner, including a showing of the efficacy of any security procedure applied to determine the person to which the electr onic record or electronic signature was attributable. (b) The effect of an electronic record or electroni c signature attributed to a person under Subsection (a) is determined from the context and surrounding circumstances at the time of its creati on, execution, or adoption, COL124201518 GCA BUSINESS STRUCTURE & FUNCTION CH. 91 - UNIFORM ELECTRONIC TRANSACTIONS ACT including the parties’ agreement, if any, and other wise as provided by law. § 91110. Effect of Change or Error. If a change or error in an electronic record occurs in a transmission between parties to a transaction, the following rul es apply: (a) If the parties have agreed to use a security pr ocedure to detect changes or errors and one (1) party has conformed t o the procedure, but the other party has not, and the nonconforming part y would have detected the

ve agreed to use a security pr ocedure to detect changes or errors and one (1) party has conformed t o the procedure, but the other party has not, and the nonconforming part y would have detected the change or error had that party also co nformed, the conforming party may avoid the effect of the change d or erroneous electronic record. (b) In an automated transaction involving an indivi dual, the individual may avoid the effect of an electronic re cord that resulted from an error made by the individual in dealing wit h the electronic agent of another person if the electronic agent did not provide an opportunity for the prevention or correction of the error and, at the time the individual learns of the error, the individual: (1) promptly notifies the other person of the error and that the individual did not intend to be bound by the el ectronic record received by the other person; (2) takes reasonable steps, including steps that co nform to the other person’s reasonable instructions, to retu rn to the other person or, if instructed by the other person, to de stroy the consideration received, if any, as a result of the erroneous electronic record; and (3) has not used or received

to retu rn to the other person or, if instructed by the other person, to de stroy the consideration received, if any, as a result of the erroneous electronic record; and (3) has not used or received any benefit or value f rom the consideration, if any, received from the other pers on. (c) If neither Subsection (a) nor Subsection (b) ap plies, the change or error has the effect provided by other la w, including the law of mistake, and the parties’ contract, if any. (d) Subsections (b) and (c) may not be varied by ag reement. § 91111. Notarization and Acknowledgment. If a law requires a signature or record to be notar ized, acknowledged, verified, or made under oath, the requirement is sa tisfied if the electronic signature of the person authorized to perform those acts, together with all COL124201518 GCA BUSINESS STRUCTURE & FUNCTION CH. 91 - UNIFORM ELECTRONIC TRANSACTIONS ACT other information required to be included by other applicable law, is attached to or logically associated with the signature or re cord. § 91112. Retention of Electronic Records; Original s. (a) If a law requires that a record be retained, th e requirement is satisfied by retaining an electronic record of

ith the signature or re cord. § 91112. Retention of Electronic Records; Original s. (a) If a law requires that a record be retained, th e requirement is satisfied by retaining an electronic record of the information in the record which: (1) accurately reflects the information set forth i n the record after it was first generated in its final form as an elec tronic record or otherwise; and (2) remains accessible for later reference. (b) A requirement to retain a record in accordance with Subsection (a) does not apply to any information the sole purpose of which is to enable the record to be sent, communicated, or received. (c) A person may satisfy Subsection (a) by using th e services of another person if the requirements of that subsecti on are satisfied. (d) If a law requires a record to be presented or r etained in its original form, or provides consequences if the record is not presented or retained in its original form, that law is satisfied by an elec tronic record retained in accordance with Subsection (a). (e) If a law requires retention of a check, that re quirement is satisfied by retention of an electronic record of the informa tion on the front and back of the check in

cordance with Subsection (a). (e) If a law requires retention of a check, that re quirement is satisfied by retention of an electronic record of the informa tion on the front and back of the check in accordance with Subsection (a). (f) A record retained as an electronic record in ac cordance with Subsection (a) satisfies a law requiring a person t o retain a record for evidentiary, audit, or like purposes, unless a law enacted after the effective date of this Chapter specifically prohibits the use of an electronic record for the specified purpose. (g) This Section does not preclude a governmental a gency of this state from specifying additional requirements for the ret ention of a record subject to the agency’s jurisdiction. § 91113. Admissibility in Evidence. In a proceeding, evidence of a record or signature may not be excluded solely because it is in electronic form. COL124201518 GCA BUSINESS STRUCTURE & FUNCTION CH. 91 - UNIFORM ELECTRONIC TRANSACTIONS ACT § 91114. Automated Transaction. In an automated transaction, the following rules ap ply: (a) A contract may be formed by the interaction of electronic agents of the parties, even if no individual was aw are of or reviewed

nsaction. In an automated transaction, the following rules ap ply: (a) A contract may be formed by the interaction of electronic agents of the parties, even if no individual was aw are of or reviewed the electronic agents’ actions or the resulting terms a nd agreements. (b) A contract may be formed by the interaction of an electronic agent and an individual, acting on the individual’s own behalf or for another person, including by an interaction in whic h the individual performs actions that the individual is free to ref use to perform and which the individual knows or has reason to know wi ll cause the electronic agent to complete the transaction or per formance. (c) The terms of the contract are determined by the substantive law applicable to it. § 91115. Time and Place of Sending and Receipt. (a) Unless otherwise agreed between the sender and the recipient, an electronic record is sent when it: (1) is addressed properly or otherwise directed pro perly to an information processing system that the recipient ha s designated or uses for the purpose of receiving electronic records or information of the type sent and from which the recipient is able to r etrieve the electronic

sing system that the recipient ha s designated or uses for the purpose of receiving electronic records or information of the type sent and from which the recipient is able to r etrieve the electronic record; (2) is in a form capable of being processed by that system; and (3) enters an information processing system outside the control of the sender or of a person that sent the electronic record on behalf of the sender or enters a region of the information proces sing system designated or used by the recipient which is under the control of the recipient. (b) Unless otherwise agreed between the sender and the recipient, an electronic record is received when: (1) it enters an information processing system that the recipient has designated or uses for the purpose of receiving electronic records or information of the type sent and from which the rec ipient is able to retrieve the electronic record; and COL124201518 GCA BUSINESS STRUCTURE & FUNCTION CH. 91 - UNIFORM ELECTRONIC TRANSACTIONS ACT (2) it is in a form capable of being processed by t hat system. (c) Subsection (b) applies even if the place the in formation processing system is located is different from the place the e

CTIONS ACT (2) it is in a form capable of being processed by t hat system. (c) Subsection (b) applies even if the place the in formation processing system is located is different from the place the e lectronic record is deemed to be received under Subsection (d). (d) Unless otherwise expressly provided in the elec tronic record or agreed between the sender and the recipient, an ele ctronic record is deemed to be sent from the sender’s place of business and to be received at the recipient’s place of business. For purposes of this Subsection, the following rules apply: (1) If the sender or recipient has more than one (1 ) place of business, the place of business of that person is t he place having the closest relationship to the underlying transaction. (2) If the sender or the recipient does not have a place of business, the place of business is the sender’s or recipient’s residence, as the case may be. (e) An electronic record is received under Subsecti on (b) even if no individual is aware of its receipt. (f) Receipt of an electronic acknowledgment from an information processing system described in Subsection (b) estab lishes that a record was received but, by itself, does not

is aware of its receipt. (f) Receipt of an electronic acknowledgment from an information processing system described in Subsection (b) estab lishes that a record was received but, by itself, does not establish that th e content sent corresponds to the content received. (g) If a person is aware that an electronic record purportedly sent under Subsection (a), or purportedly received under Subsection (b), was not actually sent or received, the legal effect of the sending or receipt is determined by any other applicable law. Except to t he extent permitted by the other law, the requirements of this Subsection may not be varied by agreement. § 91116. Transferable Records. (a) In this Section, ‘transferable record’ means an electronic record that: (1) would be a note under Division 3 [Commercial Pa per] of the Uniform Commercial Code or a document under Divisio n 7 [Warehouse Receipts, Bills of Lading and Other Docu ments of Title] of the Uniform Commercial Code if the electronic recor d were in writing; COL124201518 GCA BUSINESS STRUCTURE & FUNCTION CH. 91 - UNIFORM ELECTRONIC TRANSACTIONS ACT and (2) the issuer of the electronic record expressly h as agreed is a transferable record.

ere in writing; COL124201518 GCA BUSINESS STRUCTURE & FUNCTION CH. 91 - UNIFORM ELECTRONIC TRANSACTIONS ACT and (2) the issuer of the electronic record expressly h as agreed is a transferable record. (b) A person has control of a transferable record i f a system employed for evidencing the transfer of interests in the tra nsferable record reliably establishes that person as the person to which the transferable record was issued or transferred. (c) A system satisfies Subsection (b), and a person is deemed to have control of a transferable record, if the transferab le record is created, stored, and assigned in such a manner that: (1) a single authoritative copy of the transferable record exists which is unique, identifiable, and, except as other wise provided in Subsections (4), (5), and (6), unalterable; (2) the authoritative copy identifies the person as serting control as: (A) the person to which the transferable record was issued; or (B) if the authoritative copy indicates that the tr ansferable record has been transferred, the person to which th e transferable record was most recently transferred; (3) the authoritative copy is communicated to and m aintained by the person

the tr ansferable record has been transferred, the person to which th e transferable record was most recently transferred; (3) the authoritative copy is communicated to and m aintained by the person asserting control or its designated cust odian; (4) copies or revisions that add or change an ident ified assignee of the authoritative copy can be made only with the consent of the person asserting control; (5) each copy of the authoritative copy and any cop y of a copy is readily identifiable as a copy that is not the auth oritative copy; and (6) any revision of the authoritative copy is readi ly identifiable as authorized or unauthorized. (d) Except as otherwise agreed, a person having con trol of a transferable record is the holder, as defined in Di vision 1 § 1201(20) of the Uniform Commercial Code, of the transferable record and has the same rights and defenses as a holder of an equivalent re cord or writing under the COL124201518 GCA BUSINESS STRUCTURE & FUNCTION CH. 91 - UNIFORM ELECTRONIC TRANSACTIONS ACT Uniform Commercial Code, including, if the applicab le statutory requirements under §§ 3302, 7501, or 9303 of the Un iform Commercial Code are satisfied, the rights and

RM ELECTRONIC TRANSACTIONS ACT Uniform Commercial Code, including, if the applicab le statutory requirements under §§ 3302, 7501, or 9303 of the Un iform Commercial Code are satisfied, the rights and defenses of a ho lder in due course, a holder to which a negotiable document of title has been du ly negotiated, or a purchaser, respectively. Delivery, possession, and endorsement are not required to obtain or exercise any of the rights un der this Subsection. (e) Except as otherwise agreed, an obligor under a transferable record has the same rights and defenses as an equivalent o bligor under equivalent records or writings under the Uniform Commercial Co de. (f) If requested by a person against which enforcem ent is sought, the person seeking to enforce the transferable record shall provide reasonable proof that the person is in control of the transfer able record. Proof may include access to the authoritative copy of the tra nsferable record and related business records sufficient to review the terms of the transferable record and to establish the identity of the person having cont rol of the transferable record. § 91117.

sferable record and related business records sufficient to review the terms of the transferable record and to establish the identity of the person having cont rol of the transferable record. § 91117. Creation and Retention of Electronic Reco rds and Conversion of Written Records by Governmental Agencies. Each governmental agency of this state shall determine whether, and the extent to which, it will create and retain elec tronic records and convert written records to electronic records. § 91118. Acceptance and Distribution of Electronic Records by Governmental Agencies. (a) Except as otherwise provided in § 91112(f) of t his Chapter, each governmental agency of this state shall determine whether, and the extent to which, it will send and accept electronic records a nd electronic signatures to and from other persons and otherwise create, genera te, communicate, store, process, use, and rely upon electronic records and electronic signatures. (b) To the extent that a governmental agency uses e lectronic records and electronic signatures under Subsection (a), the governmental agency, giving due consideration to security, may specify: (1) the manner and format in which the electronic r

ses e lectronic records and electronic signatures under Subsection (a), the governmental agency, giving due consideration to security, may specify: (1) the manner and format in which the electronic r ecords must be created, generated, sent, communicated, received , and stored and the systems established for those purposes; (2) if electronic records must be signed by electro nic means, the COL124201518 GCA BUSINESS STRUCTURE & FUNCTION CH. 91 - UNIFORM ELECTRONIC TRANSACTIONS ACT type of electronic signature required, the manner a nd format in which the electronic signature must be affixed to the ele ctronic record, and the identity of, or criteria that must be met by, any t hird party used by a person filing a document to facilitate the process; (3) control processes and procedures as appropriate to ensure adequate preservation, disposition, integrity, secu rity, confidentiality, and audit ability of electronic records; and (4) any other required attributes for electronic re cords which are specified for corresponding non-electronic records or reasonably necessary under the circumstances.

lity of electronic records; and (4) any other required attributes for electronic re cords which are specified for corresponding non-electronic records or reasonably necessary under the circumstances. (c) Except as otherwise provided in § 91112(f) of t his Chapter, this Chapter does not require a governmental agency of t his state to use or permit the use of electronic records or electronic signatu res. § 91119. Interoperability. The governmental agency of this state which adopts standards pursuant to § 91118 of this Chapter may encourage and promot e consistency and interoperability with similar requirements adopted by other governmental agencies of this and other states, and the federal government and nongovernmental persons interacting with government al agencies of this state. If appropriate, those standards may specify differing levels of standards from which governmental agencies of this state may choose in implementing the most appropriate standard for a particular appl ication. § 91120. Severability Clause. If any provision of this Chapter or its application to any person or circumstance is held invalid, the invalidity does n ot affect other provisions or applications of

n. § 91120. Severability Clause. If any provision of this Chapter or its application to any person or circumstance is held invalid, the invalidity does n ot affect other provisions or applications of this Chapter which can be given eff ect without the invalid provision or application, and to this end the provi sions of this Chapter are severable. ---------- COL1242015