requirement is
met by retaining data messages, provided that the following
conditions are satisfied:
-
the information
contained therein is accessible so as to be usable for
subsequent reference; and
-
the data
message is retained in the format in which it was
generated, sent or received, or in a format which can be
demonstrated to represent accurately the information
generated, sent or received; and
-
such
information, if any, is retained as enables the
identification of the origin and destination of a data
message and the date and time when it was sent or
received.
-
An obligation to
retain documents, records or information in accordance with
paragraph (1) does not extend to any information the sole
purpose of which is to enable the message to be sent or
received.
-
A person may
satisfy the requirement referred to in paragraph (1) by
using the services of any other person, provided that the
conditions set forth in subparagraphs (a), (b) and (c) of
paragraph (1) are met.
CHAPTER III.
COMMUNICATION OF DATA MESSAGES
Article 11. Formation and
validity of contracts
-
In the context of
contract formation, unless otherwise agreed by the parties,
an offer and the acceptance of an offer may be expressed by
means of data messages. Where a data message is used in the
formation of a contract, that contract shall not be denied
validity or enforceability on the sole ground that a data
message was used for that purpose.
-
The provisions of
this article do not apply to the following: [...].
Article 12. Recognition by
parties of data messages
- As between the originator and
the addressee of a data message, a declaration of will or
other statement shall not be denied legal effect, validity
or enforceability solely on the grounds that it is in the
form of a data message.
- The provisions of this article
do not apply to the following: [...].
Article 13. Attribution of data
messages
-
A data message is
that of the originator if it was sent by the originator
itself.
-
As between the
originator and the addressee, a data message is deemed to be
that of the originator if it was sent:
-
(a) by a person
who had the authority to act on behalf of the originator
in respect of that data message; or
-
(b) by an
information system programmed by or on behalf of the
originator to operate automatically.
-
As between the
originator and the addressee, an addressee is entitled to
regard a data message as being that of the originator, and
to act on that assumption, if:
-
in order to
ascertain whether the data message was that of the
originator, the addressee properly applied a procedure
previously agreed to by the originator for that purpose;
or
-
the data
message as received by the addressee resulted from the
actions of a person whose relationship with the originator
or with any agent of the originator enabled that person to
gain access to a method used by the originator to identify
data messages as its own.
-
Paragraph (3)
does not apply:
- as of the time when the
addressee has both received notice from the
originator
that the data
message is not that of the originator, and had reasonable
time to act accordingly; or
-
in a case
within paragraph (3) (b), at any time when the addressee
knew or should have known, had it exercised reasonable
care or used any agreed procedure, that the data message
was not that of the originator.
-
Where a data
message is that of the originator or is deemed to be that of
the originator, or the addressee is entitled to act on that
assumption, then, as between the originator and the
addressee, the addressee is entitled to regard the data
message as received as being what the originator intended to
send, and to act on that assumption. The addressee is not so
entitled when it knew or should have known, had it exercised
reasonable care or used any agreed procedure, that the
transmission resulted in any error in the data message as
received.
-
The addressee is
entitled to regard each data message received as a separate
data message and to act on that assumption, except to the
extent that it duplicates another data message and the
addressee knew or should have known, had it exercised
reasonable care or used any agreed procedure, that the data
message was a duplicate.
Article 14. Acknowledgement of
receipt
-
Paragraphs (2) to
(4) of this article apply where, on or before sending a data
message, or by means of that data message, the originator
has requested or has agreed with the addressee that receipt
of the data message be acknowledged.
-
Where the
originator has not agreed with the addressee that the
acknowledgement be given in a particular form or by a
particular method, an acknowledgement may be given by
-
any
communication by the addressee, automated or otherwise,
or
-
any conduct
of the addressee,
sufficient to
indicate to the originator that the data message has been
received.
-
Where the
originator has stated that the data message is conditional
on receipt of the acknowledgement, the data message is
treated as though it has never been sent, until the
acknowledgement is received.
-
Where the
originator has not stated that the data message is
conditional on receipt of the acknowledgement, and the
acknowledgement has not been received by the originator
within the time specified or agreed or, if no time has been
specified or agreed, within a reasonable time the
originator:
-
may give notice
to the addressee stating that no acknowledgement has been
received and specifying a reasonable time by which the
acknowledgement must be received; and
-
if the
acknowledgement is not received within the time specified
in subparagraph (a), may, upon notice to the addressee,
treat the data message as though it had never been sent,
or exercise any other rights it may have.
-
Where the
originator receives the addressee's acknowledgement of
receipt, it is presumed that the related data message was
received by the addressee. That presumption does not imply
that the data message corresponds to the message
received.
-
Where the
received acknowledgement states that the related data
message met technical requirements, either agreed upon or
set forth in applicable standards, it is presumed that those
requirements have been met.
-
Except in so far
as it relates to the sending or receipt of the data message,
this article is not intended to deal with the legal
consequences that may flow either from that data message or
from the acknowledgement of its receipt.
Article 15. Time and place of
dispatch and receipt of data messages
-
Unless otherwise
agreed between the originator and the addressee, the
dispatch of a data message occurs when it enters an
information system outside the control of the originator or
of the person who sent the data message on behalf of the
originator.
-
Unless otherwise
agreed between the originator and the addressee, the time of
receipt of a data message is determined as follows:
-
(a) if the
addressee has designated an information system for the
purpose of receiving data messages, receipt occurs:
- at the time when
the data message enters the designated
information
system;
or
-
if the data
message is sent to an information system of the
addressee that is not the designated information system,
at the time when the data message is retrieved by the
addressee;
-
if the
addressee has not designated an information system,
receipt occurs when the data message enters an information
system of the addressee.
-
Paragraph (2)
applies notwithstanding that the place where the information
system is located may be different from the place where the
data message is deemed to be received under paragraph
(4).
-
Unless otherwise
agreed between the originator and the addressee, a data
message is deemed to be dispatched at the place where the
originator has its place of business, and is deemed to be
received at the place where the addressee has its place of
business. For the purposes of this paragraph:
(a) if the
originator or the addressee has more than one place of
business, the place of business is that which has the
closest relationship to the underlying transaction or,
where there is no underlying transaction, the principal
place of business;
(b) if the
originator or the addressee does not have a place of
business, reference is to be made to its habitual
residence.
-
The provisions of
this article do not apply to the following: [...].
PART TWO.
ELECTRONIC COMMERCE IN SPECIFIC AREAS CHAPTER I. CARRIAGE
OF GOODS
Article 16. Actions related
to contracts of carriage of goods
Without
derogating from the provisions of part I of this Law, this
chapter applies to any action in connection with, or in
pursuance of, a contract of carriage of goods, including but
not limited to:
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