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PARRIS N. GLENDENING, Governor
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S.B. 142
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ELECTRONIC CONTRACTS: GENERALLY.
21-212. EFFICACY AND COMMERCIAL REASONABLENESS OF ATTRIBUTION
PROCEDURE.
THE EFFICACY, INCLUDING THE COMMERCIAL REASONABLENESS, OF AN
ATTRIBUTION PROCEDURE IS DETERMINED BY THE COURT. IN MAKING THIS
DETERMINATION, THE FOLLOWING RULES APPLY:
(1) AN ATTRIBUTION PROCEDURE ESTABLISHED BY LAW IS EFFECTIVE
FOR TRANSACTIONS WITHIN THE COVERAGE OF THE STATUTE OR RULE.
(2) EXCEPT AS OTHERWISE PROVIDED IN PARAGRAPH 11) OF THIS
SECTION, COMMERCIAL REASONABLENESS AND EFFECTIVENESS IS DETERMINED IN
LIGHT OF THE PURPOSES OF THE PROCEDURE AND THE COMMERCIAL
CIRCUMSTANCES AT THE TIME THE PARTIES AGREED TO OR ADOPTED THE
PROCEDURE.
(3) AN ATTRIBUTION PROCEDURE MAY USE ANY SECURITY DEVICE OR
METHOD THAT IS COMMERCIALLY REASONABLE UNDER THE CIRCUMSTANCES.
21-213. DETERMINING ATTRIBUTION.
(A) AN ELECTRONIC AUTHENTICATION, DISPLAY, MESSAGE, RECORD, OR
PERFORMANCE IS ATTRIBUTED TO A PERSON IF IT WAS THE ACT OF THE PERSON OR
ITS ELECTRONIC AGENT, OR IF THE PERSON IS BOUND BY IT UNDER AGENCY OR
OTHER LAW. THE PARTY RELYING ON ATTRIBUTION OF AN ELECTRONIC
AUTHENTICATION, DISPLAY, MESSAGE, RECORD, OR PERFORMANCE TO ANOTHER
PERSON HAS THE BURDEN OF ESTABLISHING ATTRIBUTION.
(B) THE ACT OF A PERSON MAY BE SHOWN IN ANY MANNER, INCLUDING A
SHOWING OF THE EFFICACY OF AN ATTRIBUTION PROCEDURE THAT WAS AGREED
TO OR ADOPTED BY THE PARTIES OR ESTABLISHED BY LAW.
(C) THE EFFECT OF AN ELECTRONIC ACT ATTRIBUTED TO A PERSON UNDER
SUBSECTION (A) OF THIS SECTION IS DETERMINED FROM THE CONTEXT AT THE TIME
OF ITS CREATION, EXECUTION, OR ADOPTION, INCLUDING THE PARTIES'
AGREEMENT, IF ANY, OR OTHERWISE AS PROVIDED BY LAW.
(D) IF AN ATTRIBUTION PROCEDURE EXISTS TO DETECT ERRORS OR CHANGES
IN AN ELECTRONIC AUTHENTICATION, DISPLAY, MESSAGE, RECORD, OR
PERFORMANCE, AND WAS AGREED TO OR ADOPTED BY THE PARTIES OR
ESTABLISHED BY LAW, AND ONE PARTY CONFORMED TO THE PROCEDURE BUT THE
OTHER PARTY DID NOT, AND THE NONCONFORMING PARTY WOULD HAVE DETECTED
THE CHANGE OR ERROR HAD THAT PARTY ALSO CONFORMED, THE EFFECT OF
NONCOMPLIANCE IS DETERMINED BY THE AGREEMENT BUT, IN THE ABSENCE OF
AGREEMENT, THE CONFORMING PARTY MAY AVOID THE EFFECT OF THE ERROR OR
CHANGE.
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- 3667 -
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