DEPARMENT OF BUDGET AND MANAGEMENT
BANGKO
SENTRAL NG PILIPINAS
IMPLEMENTING
RULES AND REGULATIONS
OF
THE
“ELECTRONIC
COMMERCE ACT ”
Pursuant to the provisions of Section 34 of Republic Act No. 8792,
otherwise known as the Electronic Commerce Act (the “Act”), the following
implementing rules and regulations (the “Rules”) are hereby
promulgated:
PART I
DECLARATION
OF POLICY AND PRINCIPLES
FOR
ELECTRONIC COMMERCE PROMOTION
Chapter
I - Declaration of Policy
Section
1. Declaration of
Policy. The State recognizes the vital role of information and
communications technology (ICT) in nation-building; the need to create an
information-friendly environment which supports and ensures the
availability, diversity and affordability of ICT products and services;
the primary responsibility of the private sector in contributing
investments and services in ICT; the need to develop, with appropriate
training programs and institutional policy changes, human resources for
the information age, a labor force skilled in the use of ICT and a
population capable of operating and utilizing electronic appliances and
computers; its obligation to facilitate the transfer and promotion of
technology; to ensure network security, connectivity and neutrality of
technology for the national benefit; and the need to marshal, organize and
deploy national information infrastructures, comprising in both
communications network and strategic information services, including their
interconnection to the global information networks, with the necessary and
appropriate legal, financial, diplomatic and technical framework, systems
and facilities.
Section
2. Authority of the
Department of Trade and Industry and Participating Entities. The
Department of Trade and Industry (DTI) shall direct and supervise the
promotion and development of electronic commerce in the country with
relevant government agencies, without prejudice to the provisions of
Republic Act. 7653 (Charter of Bangko Sentral ng Pilipinas) and Republic
Act No. 8791 (General Banking Act).
Chapter
II - Declaration of Principles for Electronic Commerce
Promotion
Section
3. Principles. Pursuant to the mandate under
Section 29 of the Act to direct and supervise the promotion and
development of electronic commerce in the country, the following
principles are hereby adopted as Government policy on electronic commerce:
a)
Role of the Government.
Government intervention, when required, shall promote a stable
legal environment, allow a fair allocation of scarce resources and protect
public interest. Such intervention shall be no more than is essential and
should be clear, transparent, objective, non-discriminatory, proportional,
flexible, and technologically neutral. Mechanisms for private sector
input and involvement in policy making shall be promoted and widely
used.
b)
Role of the Private Sector. The development of
electronic commerce shall be led primarily by the private sector in
response to market forces. Participation in electronic commerce shall be
pursued through an open and fair competitive market.
c)
International Coordination and Harmonization. Electronic Commerce
is global by nature.
Government policies that affect electronic commerce will be
internationally coordinated and compatible and will facilitate
interoperability within an international, voluntary and consensus-based
environment for standards setting.
d)
Neutral Tax Treatment. Transactions conducted using electronic
commerce should receive neutral tax treatment in comparison to
transactions using non-electronic means and taxation of electronic
commerce shall be administered in the least burdensome manner.
e)
Protection of Users. The protection of users, in particular with
regard to privacy, confidentiality, anonymity and content control shall be
pursued through policies driven by choice, individual empowerment, and
industry-led solutions. It shall be in accordance with applicable
laws. Subject to such laws,
business should make available to consumers and, where appropriate,
business users the means to exercise choice with respect to privacy,
confidentiality, content control and, under appropriate circumstances,
anonymity.
f)
Electronic Commerce Awareness. Government and the private sector
will inform society, both individual consumers and businesses, about the
potentials of electronic commerce and its impact on social and economic
structures.
g)
Small and Medium-Sized Enterprises. Government will provide small and
medium-sized enterprises (SMEs) with information and education relevant to
opportunities provided by global electronic commerce. Government will
create an environment that is conducive to private sector investment in
information technologies and encourage capital access for SMEs.
h)
Skills Development.
Government shall enable workers to share in the new and different
employment generated by electronic commerce. In this regard, the
Government shall continue to promote both formal and non-formal
skills-development programs.
i)
Government as A Model User.
Government shall utilize new electronic means to deliver core
public services in order to demonstrate the benefits derived therefrom and
to promote the use of such means. In this regard, the Government will be a
pioneer in using new technologies.
In particular, the Government Information System Plan (GISP), which
is expected to include, but not be limited to, online public information
and cultural resources, databases for health services, web sites at local,
regional and national levels and public libraries and databases, where
appropriate, will be implemented in accordance with the provisions of the
Act and RPWEB.
j)
Convergence.
Convergence of technologies is crucial to electronic commerce and
will be supported by appropriate government policies. Government will work closely with
business in preparing for and reacting to changes caused by convergence.
k)
Domain Name System. The Government supports initiatives to ensure
that Internet users will have a sufficient voice in the governance of the
domain name system.
l)
Access to Public Records.
Government shall provide equal and transparent access to public
domain information.
m)
Dispute Mechanisms.
Government encourages the use of self-regulatory extra-judicial
dispute settlement mechanisms such as arbitration and mediation as an
effective way of resolving electronic commerce disputes.
Chapter
III - Objective and Sphere of Application
Section
4. Objective of the
Act. The Act aims to
facilitate domestic and international dealings, transactions,
arrangements, agreements, contracts and exchanges and storage of
information through the utilization of electronic, optical and similar
medium, mode, instrumentality and technology to recognize the authenticity
and reliability of electronic documents related to such activities and to
promote the universal use of electronic transactions in the government and
by the general public.
Section
5. Sphere of
Application. The Act shall apply to any kind of electronic data message
and electronic document used in the context of commercial and
non-commercial activities to include domestic and international dealings,
transactions, arrangements, agreements, contracts and exchanges and
storage of information.
PART
II
ELECTRONIC
COMMERCE IN GENERAL
Chapter
I - General Provisions
Section
6. Definition of Terms.
For the purposes of the Act and these Rules, the following terms are
defined, as follows:
(a)
“Addressee” refers to a person who is intended by the originator to
receive the electronic data message or electronic document, but does not
include a person acting as an intermediary with respect to that electronic
data message or electronic document.
(b)
“Commercial Activities” shall be given a wide interpretation so as
to cover matters arising from all relationships of a commercial nature,
whether contractual or not.
The term shall likewise refer to acts, events, transactions, or
dealings occurring between or among parties including, but not limited to,
factoring, investments, leasing, consulting, insurance, and all other
services, as well as the manufacture, processing, purchase, sale, supply,
distribution or transacting in any manner, of tangible and intangible
property of all kinds such as commodities, goods, merchandise, financial
and banking products, patents, participations, shares of stock, software,
books, works of art and other intellectual property.
(c)
“Computer” refers to any device or apparatus singly or
interconnected which, by electronic, electro-mechanical, optical and/or
magnetic impulse, or other means with the same function, can receive,
record, transmit, store, process, correlate, analyze, project, retrieve
and/or produce information, data, text, graphics, figures, voice, video,
symbols or other modes of expression or perform any one or more of these
functions.
(d)
“Convergence” refers
to technologies moving together towards a common point and elimination of
differences between the provisioning of video, voice and data, using
digital and other emerging technologies; the coming together of two or
more disparate disciplines or technologies; the ability of different
network platforms to carry any kind of service; and the coming together of
consumer devices such as, but not limited to, the telephone, television
and personal computer.
(e)
“Electronic data message” refers to information generated, sent,
received or stored by electronic, optical or similar means, but not
limited to, electronic data interchange (EDI), electronic mail, telegram,
telex or telecopy. Throughout
these Rules, the term “electronic data message” shall be equivalent to and
be used interchangeably with “electronic document.”
(f)
“Information and Communications System” refers to a system for
generating, sending, receiving, storing or otherwise processing electronic
data messages or electronic documents and includes the computer system or
other similar device by or in which data is recorded or stored and any
procedures related to the recording or storage of electronic data message
or electronic document.
(g)
“Electronic signature” refers to any distinctive mark,
characteristic and/or sound in electronic form, representing the identity
of a person and attached to or logically associated with the electronic
data message or electronic document or any methodology or procedures
employed or adopted by a person and executed or adopted by such person
with the intention of authenticating or approving an electronic data
message or electronic document.
(h)
“Electronic document” refers to information or the representation
of information, data, figures, symbols or other modes of written
expression, described or however represented, by which a right is
established or an obligation extinguished, or by which a fact may be
proved and affirmed, which is received, recorded, transmitted, stored,
processed, retrieved or produced electronically. Throughout these Rules, the term
“electronic document” shall be equivalent to and be used interchangeably
with “electronic data
message.”
(i)
“Electronic key” refers to a secret code, which secures and defends
sensitive information that crosses over public channels into a form
decipherable only by itself or with a matching electronic key. This term shall include, but not
be limited to, keys produced by single key cryptosystems, public key
cryptosystems or any other similar method or process, which may hereafter,
be developed.
(j)
“Intermediary” refers to a person who in behalf of another person
and with respect to a particular electronic data message or electronic
document sends, receives and/or stores or provides other services in
respect of that electronic data message or electronic document.
(k)
“Non-Commercial Activities” are those not falling under commercial
activities.
(l)
“Originator” refers to a person by whom, or on whose behalf, the
electronic data message or electronic document purports to have been
created, generated and/or sent. The term does not include a person acting
as an intermediary with respect to that electronic data message or
electronic document.
(m) “Person”
means any natural or juridical person including, but not limited to, an
individual, corporation, partnership, joint venture, unincorporated
association, trust or other juridical entity, or any governmental
authority.
(n)
“Service provider” refers to a provider of -
i. Online services
or network access, or the operator of facilities therefore, including
entities offering the transmission, routing, or providing of connections
for online communications, digital or otherwise, between or among points
specified by a user, of electronic data message or electronic documents of
the user’s choosing; or
ii. The necessary technical
means by which electronic data message or electronic documents of an
originator may be stored and made accessible to a designated or
undesignated third party.
Such
service providers shall have no authority to modify or alter the content
of the electronic data message or electronic document received or to make
any entry therein on behalf of the originator, addressee or any third
party unless specifically authorized to do so, and shall retain the
electronic data message or electronic document in accordance with the
specific request or as necessary for the purpose of performing the
services it was engaged to perform.
Chapter
II - Legal Recognition of Electronic Data Messages And Electronic
Documents
Legal
Recognition of Electronic Data Messages and Electronic
Documents
Section
7. Legal Recognition of
Electronic Data Messages and Electronic Documents. Information shall not
be denied validity or enforceability solely on the ground that it is in
the form of an electronic data message or electronic document, purporting
to give rise to such legal effect. Electronic data messages or electronic
documents shall have the legal effect, validity or enforceability as any
other document or legal writing.
In particular, subject to the provisions of the Act and these
Rules:
a)
A requirement under law that information is in writing is satisfied
if the information is in the form of an electronic data message or
electronic document.
b)
A requirement under law for a person to provide information in
writing to another person is satisfied by the provision of the information
in an electronic data message or electronic document.
c)
A requirement under law for a person to provide information to
another person in a specified non-electronic form is satisfied by the
provision of the information in an electronic data message or electronic
document if the information is provided in the same or substantially the
same form.
d)
Nothing limits the operation of any requirement under law for
information to be posted or displayed in specified manner, time or
location; or for any information or document to be communicated by a
specified method unless and until a functional equivalent shall have been
developed, installed, and implemented.
Section
8. Incorporation by
Reference. Information shall
not be denied validity or enforceability solely on the ground that it is
not contained in an electronic data message or electronic document but is
merely incorporated by reference therein.
Section
9. Use Not
Mandatory. Without prejudice
to the application of Section 27 of the Act and Section 37 of these Rules,
nothing in the Act or these Rules requires a person to use or accept
information contained in electronic data messages, electronic documents,
or electronic signatures, but a person's consent to do so may be inferred
from the person's conduct.
Section
10. Writing. Where the law requires
a document to be in writing,
or obliges the parties to conform to a writing, or provides consequences in the
event information is not presented or retained in its original form, an electronic document or
electronic data message will be sufficient if the latter:
a)
maintains its integrity and reliability; and,
b)
can be authenticated so as to be usable for subsequent reference,
in that -
(i) It has remained complete and unaltered,
apart from the addition of any endorsement and any authorized change, or
any change which arises in the normal course of communication, storage and
display; and
(ii)
It is reliable in the light of the
purpose for which it was generated and in the light of all relevant
circumstances.
Section
11. Original. Where the law requires
that a document be presented or retained in its original form, that
requirement is met by an electronic document or electronic data message if
-
a)
There exists a reliable assurance as to the integrity of the
electronic document or electronic data message from the time when it was
first generated in its final form and such integrity is shown by evidence
aliunde (that is, evidence other than the electronic data message
itself) or otherwise; and,
b)
The electronic document or electronic data message is capable of
being displayed to the person to whom it is to be presented.
c)
For the purposes of paragraph (a) above:
(i) The criteria for assessing integrity shall
be whether the information has remained complete and unaltered, apart from
the addition of any endorsement and any change which arises in the normal
course of communication, storage and display; and
(ii) The standard of reliability
required shall be assessed in the light of the purpose for which the
information was generated and in the light of all relevant circumstances.
An
electronic data message or electronic document meeting and complying with
the requirements of Sections 6 or 7 of the Act shall be the best evidence
of the agreement and transaction contained therein.
Section
12. Solemn Contracts. No provision of the Act shall
apply to vary any and all requirements of existing laws and relevant
judicial pronouncements respecting formalities required in the execution
of documents for their validity. Hence, when the law requires
that a contract be in some form in order that it may be valid or
enforceable, or that a contract is proved in a certain way, that
requirement is absolute and indispensable.
Legal
Recognition of Electronic Signatures
Section
13. Legal Recognition of Electronic
Signatures. An electronic
signature relating to an electronic document or electronic data message
shall be equivalent to the signature of a person on a written document if
the signature:
a)
is an electronic signature as defined in Section 6(g) of these
Rules; and,
b)
is proved by showing that a prescribed procedure, not alterable by
the parties interested in the electronic document or electronic data
message, existed under which:
(i) A method is used to identify
the party sought to be bound and to indicate said party’s access to the
electronic document or electronic data message necessary for his consent
or approval through the electronic signature;
(ii) Said method is reliable and
appropriate for the purpose for which the electronic document or
electronic data message was generated or communicated, in the light of all
circumstances, including any relevant agreement;
(iii) It is necessary for the party sought to
be bound, in order to proceed further with the transaction, to have
executed or provided the electronic signature; and,
(iv) The other party is authorized and enabled
to verify the electronic signature and to make the decision to proceed
with the transaction authenticated by the same.
The
parties may agree to adopt supplementary or alternative procedures
provided that the requirements of paragraph (b) are complied with.
For
purposes of subparagraphs (i) and (ii) of paragraph (b), the factors
referred to in Annex “2” may
be taken into account.
Section
14. Presumption Relating to
Electronic Signatures. In any proceeding involving an electronic
signature, the proof of the electronic signature shall give rise to the
rebuttable presumption that:
a)
The electronic signature is the signature of the person to whom it
correlates; and,
b)
The electronic signature was affixed by that person with the
intention of signing or approving the electronic data message or
electronic document unless the person relying on the electronically signed
electronic data message or electronic document knows or has notice of
defects in or unreliability of the signature or reliance on the electronic
signature is not reasonable under the circumstances.
Modes
of Authentication
Section
15. Method of Authenticating
Electronic Documents, Electronic Data Messages, and Electronic
Signatures. Electronic
documents, electronic data messages and electronic signatures, shall be
authenticated by demonstrating, substantiating and validating a claimed
identity of a user, device, or another entity in an information or
communication system.
Until
the Supreme Court, by appropriate rules, shall have so provided,
electronic documents, electronic data messages and electronic signatures,
shall be authenticated, among other ways, in the following manner:
a)
The electronic signature shall be authenticated by proof that a
letter, character, number or other symbol in electronic form representing
the persons named in and attached to or logically associated with an
electronic data message, electronic document, or that the appropriate
methodology or security procedures, when applicable, were employed or
adopted by a person and executed or adopted by such person, with the
intention of authenticating or approving an electronic data message or
electronic document;
b)
The electronic data message or electronic document shall be
authenticated by proof that an appropriate security procedure, when
applicable was adopted and employed for the purpose of verifying the
originator of an electronic data message or electronic document, or
detecting error or alteration in the communication, content or storage of
an electronic document or electronic data message from a specific point,
which, using algorithm or codes, identifying words or numbers,
encryptions, answers back or acknowledgement procedures, or similar
security devices.
Section
16. Burden of Authenticating
Electronic Documents or Electronic Data Messages. The person seeking to
introduce an electronic document or electronic data message in any legal
proceeding has the burden of proving its authenticity by evidence capable
of supporting a finding that the electronic data message or electronic
document is what the person claims it to be.
Modes
for Establishing Integrity
Section
17. Method of Establishing the
Integrity of an Electronic Document or Electronic Data Message. In the absence of
evidence to the contrary, the integrity of the information and
communication system in which an electronic data message or electronic
document is recorded or stored may be established in any legal proceeding,
among other methods
-
a)
By evidence that at all material times the information and
communication system or other similar device was operating in a manner
that did not affect the integrity of the electronic document or electronic
data message, and there are no other reasonable grounds to doubt the
integrity of the information and communication system;
b)
By showing that the electronic document or electronic data message
was recorded or stored by a party to the proceedings who is adverse in
interest to the party using it; or,
c)
By showing that the electronic document or electronic data message
was recorded or stored in the usual and ordinary course of business by a
person who is not a party to the proceedings and who did not act under the
control of the party using the record.
Admissibility
and Evidential Weight
Section
18. Admissibility and Evidential
Weight of Electronic Data Messages and Electronic Documents. For evidentiary purposes, an
electronic document or electronic data message shall be the functional
equivalent of a written document under existing laws. In any legal proceeding, nothing
in the application of the rules on evidence shall deny the admissibility
of an electronic data message or electronic document in evidence:
a)
On the sole ground that it is in electronic form; or,
b)
On the ground that it is not in the standard written form.
The
Act does not modify any statutory rule relating to the admissibility of
electronic data messages or electronic documents, except the rules
relating to authentication and best evidence.
In
assessing the evidential weight of an electronic data message or
electronic document, the reliability of the manner in which it was
generated, stored or communicated, the reliability of the manner in which
its originator was identified, and other relevant factors shall be given
due regard.
Section
19. Proof by Affidavit and
Cross-Examination. The matters referred to in Section 12 of the Act on
admissibility and evidentiary weight, and Section 9 of the Act on the
presumption of integrity of electronic signatures, may be presumed to have
been established by an affidavit given to the best of the deponent’s or
affiant’s personal knowledge subject to the rights of parties in interest
to cross-examine such deponent or affiant as a matter of right. Such right of cross-examination
may likewise be enjoyed by a party to the proceedings who is adverse in
interest to the party who has introduced the affidavit or has caused the
affidavit to be introduced.
Any
party to the proceedings has the right to cross-examine a person referred
to in Section 11, paragraph 4, and sub-paragraph (c) of the Act.
Retention
of Electronic Data Message and Electronic
Document
Section
20. Retention of Electronic Data
Message and Electronic Document.
Notwithstanding any provision of law, rule or regulation to the
contrary:
a)
The requirement in any provision of law that certain documents be
retained in their original form is satisfied by retaining them in the form
of an electronic data message or electronic document which:
(i)
Remains accessible so as to
be usable for subsequent reference;
(ii) Is retained in the format in which
it was generated, sent or received, or in a format which can be
demonstrated to accurately represent the electronic data message or
electronic document generated, sent or received; and,
(iii)
Where applicable, enables the identification of its originator and
addressee, as well as the determination of the date and the time it was
sent or received.
b)
The requirement referred to in paragraph (a) is satisfied by using
the services of a third party, provided that the conditions set forth in
subparagraphs (i), (ii) and (iii) of paragraph (a) are met.
c)
Relevant government agencies tasked with enforcing or implementing
applicable laws relating to the retention of certain documents may, by
appropriate issuances, impose regulations to ensure the integrity,
reliability of such documents and the proper implementation of Section 13
of the Act.
Chapter
III - Communication of Electronic Data Messages And Electronic
Documents
Section
21. Formation and Validity of
Electronic Contracts. Except
as otherwise agreed by the parties, an offer, the acceptance of an offer
and such other elements required under existing laws for the formation and
perfection of contracts may be expressed in, demonstrated and proved by
means of electronic data message or electronic documents and no contract
shall be denied validity or enforceability on the sole ground that it is
in the form of an electronic data message or electronic document, or that
any or all of the elements required under existing laws for the formation
of the contracts is expressed, demonstrated and proved by means of
electronic documents.
Section
22. Consummation of Electronic
Transactions with Banks. Electronic transactions made through networking
among banks, or linkages thereof with other entities or networks, and vice
versa, shall be deemed consummated under rules and regulations issued by
the Bangko Sentral under the succeeding paragraph hereunder, upon the
actual dispensing of cash or the debit of one account and the
corresponding credit to another, whether such transaction is initiated by
the depositor or by an authorized collecting party; Provided, that the
obligation of one bank, entity, or person similarly situated to another
arising therefrom shall be considered absolute and shall not be subjected
to the process of preference of credits; Provided, however, that the
foregoing shall apply only to transactions utilizing the Automated Teller
Machine switching network.
Without
prejudice to the foregoing, all electronic transactions involving banks,
quasi-banks, trust entities, and other institutions which under special
laws are subject to the supervision of the Bangko Sentral ng Pilipinas
shall be covered by the rules and regulations issued by the same pursuant
to its authority under Section 59 of Republic Act No. 8791 (The General
Banking Act), Republic Act No. 7653 (the Charter of the Bangko Sentral ng
Pilipinas) and Section 20, Article XII of the Constitution.
Section
23. Recognition by Parties of
Electronic Data Message. As between the originator and the addressee of an
electronic data message or electronic document, a declaration of will or
other statement shall not be denied legal effect, validity or
enforceability solely on the ground that it is in the form of an
electronic data message or electronic document.
Attribution
of Electronic Data Message and Electronic
Document
Section
24. Origin of Electronic Data
Message. An electronic data message or electronic document is that of the
originator if it was sent by the originator himself.
Section
25. Origin of Electronic Data
Message Not Personally Sent by an Originator. As between the originator
and the addressee, an electronic data message or electronic document 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 with respect to that electronic data message or electronic
document; or
b)
by an information and communications system programmed by, or on
behalf of the originator to operate automatically.
Section
26. When an Originator May Be Bound
By an Electronic Data Message. As between the originator and the
addressee, an addressee is entitled to regard an electronic data message
or electronic document as being that of the originator, and to act on that
assumption, if:
a)
in order to ascertain whether the electronic data message was that
of the originator, the addressee properly applied a procedure previously
agreed to by the originator for that purpose; or,
b)
the electronic data message or electronic document 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
electronic data messages or electronic documents as his own.
The
provisions of this Section do not exclude other instances or circumstances
when an originator may be bound by the reliance and consequent action of
an addressee respecting an electronic data message, which purports to have
been that of the originator.
Section
27. When an Originator May Not Be
Bound By an Electronic Data Message. As between the originator and the
addressee, an addressee is not entitled to regard an electronic data
message as being that of the originator, and to act on that
assumption:
a)
as of the time when the addressee has both received notice from the
originator that the electronic data message or electronic document is not
that of the originator, and has reasonable time to act accordingly;
or
b)
in a case within paragraph (b) Section 26 of these Rules, at any
time when the addressee knew or should have known, had it exercised
reasonable care or used any agreed procedure, that the electronic data
message or electronic document was not that of the originator.
The
provisions of this Section do not exclude other instances or circumstances
when an originator may not be liable for the reliance and consequent
action of an addressee respecting an electronic data message, which
purports to have been that of the originator.
Separate
Receipt of and Error on Electronic Data Message and Electronic
Document
Section
28. Assumption Regarding Receipt of
Separate Electronic Data Messages.
The addressee is entitled to regard each electronic data message or
electronic document received as a separate electronic data message or
electronic document and to act on that assumption, except to the extent
that it duplicates another electronic data message or electronic document
and the addressee knew or should have known, had it exercised reasonable
care or used any agreed procedure, that the electronic data message or
electronic document was a duplicate.
Section
29. Error on Electronic Data Message
or Electronic Document. The
addressee is entitled to regard the electronic data message or electronic
document received as that which the originator intended to send, and to
act on that assumption, unless the addressee knew or should have known,
had the addressee exercised reasonable care, used the appropriate
procedure or applied an agreed procedure:
a)
That the transmission resulted in any error therein or in the
electronic data message or electronic document when the latter enters the
designated information and communications system; or,
b)
That electronic data message or electronic document is sent to an
information and communications system which is not so designated by the
addressee for the purpose.
Dispatch
and Receipt of Electronic Data Message and Electronic
Document
Section
30. Agreement on Acknowledgment of
Receipt of Electronic Data Messages or Electronic Documents. The following
rules shall apply where, on or before sending an electronic data message
or electronic document, the originator and the addressee have agreed, or
in that electronic document or electronic data message, the originator has
requested, that receipt of the electronic document or electronic data
message be acknowledged:
a)
Where the originator has not agreed with the addressee that the
acknowledgment be given in a particular form or by a particular method, an
acknowledgment may be given by or through any communication by the
addressee, automated or otherwise, or any conduct of the addressee,
sufficient to indicate to the originator that the electronic data message
or electronic document has been received.
b)
Where the originator has stated that the effect or significance of
the electronic data message or electronic document is conditional on
receipt of the acknowledgment thereof, the electronic data message or
electronic document is treated as though it has never been sent, until the
acknowledgment is received.
c)
Where the originator has not stated that the effect or significance
of the electronic data message or electronic document is conditional on
receipt of the acknowledgment, and the acknowledgment 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 acknowledgment
has been received and specifying a reasonable time by which the
acknowledgment must be received; and if the acknowledgment is not received
within the time specified, the originator may, upon notice to the
addressee, treat the electronic document or electronic data message as
though it had never been sent, or exercise any other rights it may have.
Section
31. Time of Dispatch of Electronic
Data Message or Electronic Document.
Unless otherwise agreed between the originator and the addressee,
the dispatch of an electronic data message or electronic document occurs
when it enters an information and communications system outside the
control of the originator or of the person who sent the electronic data
message or electronic document on behalf of the originator.
Section
32. Time of Receipt of Electronic
Data Message or Electronic Document. Unless otherwise agreed between the
originator and the addressee, the time of receipt of an electronic data
message or electronic document is as follows:
a)
If the addressee has designated an information and communications
system for the purpose of
receiving electronic data message or electronic document, receipt occurs
at the time when the electronic data message or electronic document enters
the designated information and communications system; Provided, however,
that if the originator and the addressee are both participants in the
designated information and communications system, receipt occurs at the
time when the electronic data message or electronic document is retrieved
by the addressee.
b)
If the electronic data message or electronic document is sent to an
information and communications system of the addressee that is not the
designated information and communications system, receipt occurs at the
time when the electronic data message or electronic document is retrieved
by the addressee.
c)
If the addressee has not designated an information and
communications system, receipt occurs when the electronic data message or
electronic document enters an information and communications system of the
addressee.
These
rules apply notwithstanding that the place where the information and
communications system is located may be different from the place where the
electronic data message or electronic document is deemed to be received.
Section
33. Place of Dispatch and Receipt of
Electronic Data Message or Electronic Document. Unless otherwise agreed
between the originator and the addressee, an electronic data message or
electronic document is deemed to be dispatched at the place where the
originator has its place of business and received at the place where the
addressee has its place of business. This rule shall apply even if the
originator or addressee had used a laptop or other portable device to
transmit or receive his electronic data message or electronic document.
This rule shall also apply to determine the tax situs of such transaction
to the extent not inconsistent with Philippine situs rules and the
regulations which may be promulgated by the Bureau of Internal Revenue
(BIR) relating to the tax treatment of electronic commerce transactions.
For
the purpose hereof -
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;
or
c)
The “usual place of residence” in relation to a body corporate,
which does not have a place of business, means the place where it is
incorporated or otherwise legally constituted.
Nothing
in this Section shall be deemed to amend the rules of private
international law.
Security
Methods
Section
34. Choice of Security Methods.
Subject to applicable laws and/or rules and guidelines promulgated by the
Department of Trade and Industry and other appropriate government
agencies, parties to any electronic transaction shall be free to determine
the type and level of electronic data message or electronic document
security needed, and to select and use or implement appropriate
technological methods that suit their needs.
PART
III
ELECTRONIC
COMMERCE IN CARRIAGE OF GOODS
Section
35. Actions Related to Contracts of
Carriage of Goods. Without derogating from the provisions of Part Two of
the Act, this Part of the Rules applies to any action in connection with,
or in pursuance of, a contract of carriage of goods, including but not
limited to:
(a)
(i)
furnishing the marks, number, quantity or weight of
goods;
(ii)
stating or declaring the nature or value of
goods;
(iii)
issuing a receipt for goods;
(iv)
confirming that goods have been loaded;
(b)
(i)
notifying a person of terms and conditions of the
contract;
(ii)
giving instructions to a carrier;
(c)
(i)
claiming delivery of goods;
(ii)
authorizing release of goods;
(iii)
giving notices of loss of, or damage to
goods;
(d)
giving any other notice or statement in connection with the
performance of the contract;
(e)
undertaking to deliver goods to a named person or a person
authorized to claim delivery;
(f)
granting, acquiring, renouncing, surrendering, transferring or
negotiating rights in goods;
(g)
acquiring or transferring rights and obligations under the
contract.
Section
36. Transport Documents. (1) Subject to
paragraph (3), where the law requires that any action referred to in the
immediately preceding Section be carried out in writing or by using a
paper document, that requirement is met if the action is carried out by
using one or more electronic data messages or electronic documents. The transport documents referred
to herein shall include, but not be limited to, those enumerated in
Annex “1” hereof. Concerned
agencies such as, but not limited to, the DTI, Department of Finance,
DOTC, Philippine Ports Authority and other port authorities, shall, within
their respective mandates, issue appropriate rules and guidelines with
respect to transport documents as provided herein.
(2)
Paragraph (1) applies whether the requirement therein is in the
form of an obligation or whether the law simply provides consequences for
failing either to carry out the action in writing or to use a paper
document.
(3)
If a right is to be granted to, or an obligation is to be acquired
by, one person and no other person, and if the law requires that, in order
to effect this, the right or obligation must be conveyed to that person by
the transfer, or use of, a paper document, that requirement is met if the
right or obligation is conveyed by using one or more electronic data
messages or electronic documents: Provided, That a reliable method is used
to render such electronic data messages or electronic documents unique.
(4)
For the purposes of paragraph (3), the standard of reliability
required shall be assessed in the light of the purpose for which the right
or obligation was conveyed and in the light of all the circumstances,
including any relevant agreement.
(5)
Where one or more electronic data messages or electronic documents
are used to effect any action in subparagraphs (f) and (g) of Section 25
of the Act, no paper document used to effect any such action is valid
unless the use of electronic data message or electronic document has been
terminated and replaced by the use of paper documents. A paper document
issued in these circumstances shall contain a statement of such
termination. The replacement of electronic data messages or electronic
documents by paper documents shall not affect the rights or obligations of
the parties involved.
(6)
If a rule of law is compulsorily applicable to a contract of
carriage of goods which is in, or is evidenced by, a paper document, that
rule shall not be inapplicable to such a contract of carriage of goods
which is evidenced by one or more electronic data messages or electronic
documents by reason of the fact that the contract is evidenced by such
electronic data message or electronic document instead of a paper
document.
PART
IV
ELECTRONIC
TRANSACTIONS IN GOVERNMENT
Chapter
I - Government Use of Data Messages,
Electronic
Documents and Electronic Signatures
Section
37. Government Use of Electronic
Data Messages, Electronic Documents and Electronic Signatures.
Notwithstanding any law to the contrary, within two (2) years from the
date of the effectivity of the Act, all departments, bureaus, offices and
agencies of the government, as well as all government-owned and-controlled
corporations, that pursuant to law require or accept the filing of
documents, require that documents be created, or retained and/or
submitted, issue permits, licenses or certificates of registration or
approval, or provide for the method and manner of payment or settlement of
fees and other obligations to the government, shall:
a)
accept the creation, filing or retention of such documents in the
form of electronic data messages or electronic documents;
b)
issue permits, licenses, or approval in the form of electronic data
messages or electronic documents;
c)
require and/or accept payments, and issue receipts acknowledging
such payments, through systems using electronic data messages or
electronic documents; or
d)
transact the government business and/or perform governmental
functions using electronic data messages or electronic documents,
and
for the purpose, are authorized to adopt and promulgate, after appropriate
public hearing and with due publication in newspapers of general
circulation, the appropriate rules, regulations, or guidelines, to, among
others, specify -
(1)
the manner and format in which such electronic data messages or
electronic documents shall be filed, created, retained or issued;
(2)
where and when such electronic data messages or electronic
documents have to be signed, the use of a electronic signature, the type
of electronic signature required;
(3)
the format of an electronic data message or electronic document and
the manner the electronic signature shall be affixed to the electronic
data message or electronic document;
(4)
the control processes and procedures as appropriate to ensure
adequate integrity, security and confidentiality of electronic data
messages or electronic documents or records or payments;
(5)
other attributes required of electronic data messages or electronic
documents or payments; and
(6)
the full or limited use of the documents and papers for compliance
with the government requirements;
Provided,
That the Act shall by itself mandate any department of the government,
organ of state or statutory corporation to accept or issue any document in
the form of electronic data messages or electronic documents upon the
adoption, promulgation and publication of the appropriate rules,
regulations, or guidelines.
Nothing in the Act or the Rules authorizes any person to require
any branch, department, agency, bureau, or instrumentality of government
to accept or process electronic data messages; conduct its business; or
perform its functions by electronic means, until the adoption,
promulgation and publication of the afore-mentioned appropriate rules,
regulations or guidelines.
Such rules, regulations or guidelines as well as the underlying
technologies utilized in the implementation of the Act and these Rules
shall conform the principles set forth in the immediately succeeding
section.
Section
38. Principles Governing Government
Use of Electronic Data Messages, Electronic Documents and Electronic
Signatures. The following principles shall govern the implementation of
Section 27 of the Act and shall be mandatory upon all departments,
bureaus, offices and agencies of the government, as well as all
government-owned and-controlled corporations:
a)
Technology Neutrality.
All solutions implemented shall neither favor a particular
technology over another nor discriminate against or in favor of particular
vendors of technology.
b)
Interoperability. All implementation of technological solutions
shall ensure the interoperability of systems forming part of the
government network.
c)
Elimination of Red Tape.
Government processes shall be re-examined and if appropriate,
simplified or re-engineered to maximize the functionality of technology
and to eliminate unnecessary delays in the delivery of governmental
services.
d)
Security Measures.
Government shall implement appropriate security measures to guard
against unauthorized access,
unlawful disclosure of information, and to ensure the integrity of
stored information.
e)
Auditability. All
systems installed shall provide for an audit trail.
Section
39. Government Information System
Plan (GISP). It is hereby
mandated that the GISP shall be adjusted, modified and amended to conform
to the provisions and requirements of the Act, RPWEB and these Rules.
Chapter
II - RPWEB
Section
40. RPWEB To Promote the Use Of
Electronic Documents and Electronic Data Messages In Government and to the
General Public. Within two (2) years from the effectivity of the Act,
there shall be installed an electronic online network in accordance with
Administrative Order 332 and House of Representatives Resolution 890,
otherwise known as RPWEB, to implement Part IV of the Act to facilitate
the open, speedy and efficient electronic online transmission, conveyance
and use of electronic data messages or electronic documents amongst all
government departments, agencies, bureaus, offices down to the division
level and to the regional and provincial offices as practicable as
possible, government-owned and -controlled corporations, local government
units, other public instrumentalities, universities, colleges and other
schools, and universal access to the general public.
The
RPWEB network shall serve as initial platform of the government
information infrastructure to
facilitate the electronic online transmission and conveyance of government
services to evolve and improve by better technologies or kinds of
electronic online wide area networks utilizing, but not limited to, fiber
optic, satellite, wireless and other broadband telecommunication mediums
or modes.
Section
41. Implementing Agencies. To facilitate the rapid
development of the government information infrastructure, the Department
of Transportation and Communications, National Telecommunications
Commission and the National Computer Center shall in coordination with
each other, promulgate the appropriate issuances in accordance with their
respective mandate to aggressively formulate, promote and implement a
policy environment and regulatory or non-regulatory framework that shall
lead to the substantial reduction of costs of including, but not limited
to, leased lines, land, satellite and dial-up telephone access, cheap
broadband and wireless accessibility by government departments, agencies,
bureaus, offices, government-owned and -controlled corporations, local
government units, other public instrumentalities and the general public,
to include the establishment of a government website portal and a domestic
internet exchange system to facilitate strategic access to government and
amongst agencies thereof and the general public and for the speedier flow
of locally generated internet traffic within the Philippines.
Section
42. Cable Television and Broadcast
as Telecommunications. The physical infrastructure of cable and wireless
systems for cable TV and broadcast excluding programming and content and
the management thereof shall be considered as within the activity of
telecommunications for the purpose of electronic commerce and to maximize
the convergence of ICT in the installation of the government information
infrastructure.
Chapter
III - Delineation of Functions
Section
43. Delineation of Functions and
Coordination by the DTI. In the implementation of the Act, the following
government agencies shall have the functions stated hereunder:
a)
The Department of Trade and Industry shall:
(i) Supervise and coordinate the
full implementation of Section 27 of the Act. For this purpose, all government
agencies intending to comply with the said provision of law shall
coordinate with the DTI in order to ensure adherence with the principles
provided for in Section 38 of these Rules. Observance of all laws and
regulations on public bidding, disbursements and other restrictions,
including COA policies, shall be mandatory.
(ii) Install an online public
information and quality and price monitoring system for goods and services
aimed in protecting the interests of the consuming public availing of the
advantages of the Act.
(iii) Establish a voluntary listing system for
all businesses or entities involved in electronic commerce including, but
not limited to, value-added service (VAS) providers as this term is
understood in Republic Act No. 7925, banks, financial institutions,
manufacturing companies, retailers, wholesalers, and on-line exchanges. The list of electronic commerce
entities shall be maintained by the DTI and made available electronically
to all interested parties.
(iv) Review, study and assess all legal,
technical and commercial issues arising in the field of electronic
commerce which may be directed
to the DTI and if necessary, convene the appropriate government
agencies in order to discuss, deliberate on and resolve the same and in
the proper cases, promulgate additional rules and regulations to implement
the Act.
b)
The Bangko Sentral ng Pilipinas shall exercise and perform such
functions as mandated under the Act including the promulgation of the
rules and regulations to implement the provisions of the Act with respect
to banks, quasi-banks, trust entities, and other institutions which under
special laws are subject to the Bangko Sentral ng Pilipinas supervision.
c)
The Department of Budget and Management shall identify the fund
source for the implementation of Sections 37, 39 and 40 of the Rules,
consistent with the provisions of the annual General Appropriations Act,
and in its capacity in managing the budget execution and accountability
processes of government, shall be responsible for putting such core
processes on-line.
PART
V
FINAL
PROVISIONS
Section
44. Extent of Liability of a Service
Provider. Except as otherwise
provided in this Section, no person or party shall be subject to any civil
or criminal liability in respect of the electronic data message or
electronic document for which the person or party acting as a service
provider as defined in Section 6(n) of these Rules merely provides access
if such liability is founded on:
a)
The obligations and liabilities of the parties under the electronic
data message or electronic document;
b)
The making, publication, dissemination or distribution of such
material or any statement made in such material, including possible
infringement of any right subsisting in or in relation to such material:
Provided, That
(i) The service provider: (1)
does not have actual knowledge, or (2) is not aware of the facts or
circumstances from which it is apparent, that the making, publication,
dissemination or distribution of such material is unlawful or infringes
any rights subsisting in or in relation to such material, or (3) having
become aware, advises the affected parties within a reasonable time, to
refer the matter to the appropriate authority or, at the option of the
parties, to avail of alternative modes of dispute resolution;
(ii) The service provider does not
knowingly receive a financial benefit directly attributable to the
unlawful or infringing activity; and,
(iii) The service provider does not directly
commit any infringement or other unlawful act and does not induce or cause
another person or party to commit any infringement or other unlawful act
and/or does not benefit financially from the infringing activity or
unlawful act of another person or party;
Provided,
further, That nothing in this Section shall affect -
a)
Any obligation founded on contract;
b)
The obligation of a service provider as such under a licensing or
other regulatory regime established under written law;
c)
Any obligation imposed under any written law; or,
d)
The civil liability of any party to the extent that such liability
forms the basis for injunctive relief issued by a court under any law
requiring that the service provider take or refrain from actions necessary
to remove, block or deny access to any material, or to preserve evidence
of a violation of law.
Lawful
Access
Section
45. Lawful Access to Electronic
Documents, Electronic Data Messages, and Electronic Signatures. Access to
an electronic file, or an electronic signature of an electronic data
message or electronic document shall only be authorized and enforced in
favor of the individual or entity having a legal right to the possession
or the use of the plaintext, electronic signature or file and solely for
the authorized purposes.
Section
46. Lawful Access to Electronic
Keys. The electronic key for
identity or integrity shall not be made available to any person or party
without the consent of the individual or entity in lawful possession of
that electronic key. The
testimonial disclosure of an electronic key in any proceeding shall be
limited by the Constitutional right against self-incrimination.
Section
47. Obligation of Confidentiality.
Except for the purposes authorized under the Act, any person who obtained
access to any electronic key, electronic data message, or electronic
document, book, register, correspondence, information, or other material
pursuant to any powers conferred under the Act, shall not convey to or
share the same with any other person.
Penal
Provisions
Section
48. Hacking. Hacking or cracking which refers
to unauthorized access into or interference in a computer system/server or
information and communication system; or any access in order to corrupt,
alter, steal, or destroy using a computer or other similar information and
communication devices, without the knowledge and consent of the owner of
the computer or information and communications system, including the
introduction of computer viruses and the like, resulting in the
corruption, destruction, alteration, theft or loss of electronic data
messages or electronic document shall be punished by a minimum fine of one
hundred thousand pesos (P100,000.00) and a maximum commensurate to the
damage incurred and a mandatory imprisonment of six (6) months to three
(3) years.
Section
49. Piracy. Piracy or the
unauthorized copying, reproduction, dissemination, distribution,
importation, use, removal, alteration, substitution, modification,
storage, uploading, downloading, communication, making available to the
public, or broadcasting of protected material, electronic signature or
copyrighted works including legally protected sound recordings or
phonograms or information material on protected works, through the use of
telecommunication networks, such as, but not limited to, the internet, in
a manner that infringes intellectual property rights shall be punished by
a minimum fine of one hundred thousand pesos (P100,000.00) and a maximum
commensurate to the damage incurred and a mandatory imprisonment of six
(6) months to three (3) years.
The foregoing shall be without prejudice to the rights, liabilities
and remedies under Republic Act No. 8293 or Intellectual Property Code of
the Philippines and other applicable laws.
Section
50. Other Penal Offenses. Violations
of the Consumer Act or Republic Act No. 7394 and other relevant or
pertinent laws through transactions covered by or using electronic data
messages or electronic documents, shall be penalized with the same
penalties as provided in those laws.
Section
51. Other Violations of the
Act. Other violations of the
provisions of the Act, shall be penalized with a maximum penalty of one
million pesos (P1,000,000.00) or six-(6) years imprisonment.
Miscellaneous
Provisions
Section
52. Statutory Interpretation. Unless
otherwise expressly provided for, the interpretation of these Rules and
the Act shall give due regard to the Act’s international origin - the
UNCITRAL Model Law on Electronic Commerce - and the need to promote
uniformity in its application and the observance of good faith in
international trade relations. The generally accepted principles of
international law and convention on electronic commerce shall likewise be
considered.
Section
53. Variation by Agreement. - Any
provision of the Act may be varied by agreement between and among parties;
Provided that such agreement involves only the generation, sending,
receiving, storing or otherwise processing of an electronic data message
or electronic document.
Nothing shall authorize contracting parties to agree upon
stipulations or covenants, which defeat the legal recognition, validity
and admissibility of electronic data messages, electronic documents, or
electronic signatures.
Section
54. Reciprocity. All benefits,
privileges, advantages or statutory rules established under this Act,
including those involving practice of profession, shall be enjoyed only by
parties whose country of origin grants the same benefits and privileges or
advantages to Filipino citizens.
Inasmuch as the Act merely contemplates the legal recognition of
electronic forms of documents and signatures and does not amend any law
governing the underlying substantive validity of acts or transactions,
this provision shall be subject to existing Constitutional and statutory
restrictions relative to activities which are reserved to Philippine
citizens or juridical entities partially or wholly-owned by Philippine
citizens.
Section
55. Oversight Committee. There shall
be a Congressional Oversight Committee composed of the Committees on Trade
and Industry/Commerce, Science and Technology, Finance and Appropriations
of both the Senate and House of Representatives, which shall meet at least
every quarter of the first two years and every semester for the third year
after the approval of this Act to oversee its implementation. The DTI,
DBM, Bangko Sentral ng Pilipinas, and other government agencies as may be
determined by the Congressional Committee shall provide a quarterly
performance report of their actions taken in the implementation of this
Act for the first three (3) years.
Section
56. DTI’s Continuing Authority to
Implement the Act and Issue Implementing Rules. Among others, the DTI is
empowered to promulgate rules and regulations, as well as provide quality
standards or issue certifications, as the case may be, and perform such
other functions as may be necessary for the implementation of this Act in
the area of electronic commerce.
Section
57. Separability. If any provision in these Rules or
application of such provision to any circumstance is held invalid, the
remainder of these Rules shall not be affected thereby.
Section
58. Effectivity. These Rules shall take effect
fifteen (15) days from the complete publication thereof in a newspaper of
general circulation.
Done
this ___ day of July, 2000.
Manuel A. Roxas
II
BENJAMIN E. DIOKNO
Secretary
Secretary
Department Of Trade and Industry
Department Of Budget and Management
RAFAEL
B. BUENAVENTURA
Governor
Bangko
Sentral ng Pilipinas
ANNEX I
UNIFORM
CUSTOMS AND PRACTICE. 500 (UCP)
Art.
23. Marine/Ocean bill of Loading
23.1. Late
delivery, Misrouting, Mishandling,Loss and Damage
23.2
Customs Duties and Taxes
23.3
Port Charges i.e. Arrastre Wharfage
23.4
Inbound Shipment-Cargo Handler/Operator
23.4.1
Warehouse Operator
Art.
24. Non-Negotiable Seaway Bill
24.1.
Claim- ibid
24.2.
Customs Duties and Taxes
24.3
Port Charges i.e. Arrastre Wharfage
24.4
Inbound Shipment-Cargo handler/operator
24.4.1 Warehouse
Operator
Art.
25. Charter Party/Bill of Lading
25.1
Claim - ibid
25.2
Customs Duties & Taxes
25.3
Port Charges i.e. Arrastre Wharfage
25.4
Inbound shipment-cargo handler/operator
25.4.1 Warehouse
Operator
Art.
26 Multi-Modal Transport Docs.
26.1
late delivery, misrouting, mishandling, loss and
damage
26.2
Customs, duties, and taxes
26.3
Port charges i.e. arrastre wharfage
26.4
Inbound shipment-cargo handler/ operator
26.4.1. Warehouse
operator
Art.
27. Airport Transport Documents
27.1.
Claim-ibid
27.2
Customs duties & taxes
27.3
Airport charges
27.4
inbound shipment-cargo handler/operator
27.4.1. Warehouse
operator
Art.
28. Road, Rail, or Inland Waterway Transport
Documents
28.1
Claim- ibid
28.2
Customs Duties & taxes
28.3
Terminal charges
28.4
Inbound shipment-cargo handler/ operator
28.4.1. Warehouse
operator
Art
29. Courier and Post Receipts
29.1
Late delivery, misrouting, mishandling, loss &
damage
29.2
Customs duties & taxes
29.3
Postal authority charges
29.4
Inbound shipment-cargo handler/ operator
29.4.1. Warehouse
operator
Art.
30. Transport Documents issued by freight forwarders
30.1.
Claim - ibid
30.2
Customs duties & taxes
30.3
Port charges i.e. arrastre wharfage
30.4
Inbound shipment- cargo handler/ operator
30.4.1. warehouse
operator
ANNEX II
a)
the sophistication of the equipment used by each of the parties;
b)
the nature of their trade activity;
c)
the frequency at which commercial transactions take place between
the parties;
d)
the kind and size of the transaction;
e)
the function of signature requirements in a given statutory and
regulatory environment;
f)
the capability of communication systems;
g)
compliance with authentication procedures set forth by
intermediaries;
h)
the range of authentication procedures made available by any
intermediary;
i)
compliance with trade customs and practice;
j)
the existence of insurance coverage mechanisms against unauthorized
messages;
k)
the importance and the value of the information contained in the
data message;
l)
the availability of alternative methods of identification and the
cost of implementation;
m)
the degree of acceptance or non-acceptance of the method of
identification in the relevant industry or field both at the time the
method was agreed upon and the time when the data message was
communicated; and
n)
any other relevant factor.
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