2005 Nevada Revised Statutes - Chapter 719 — Electronic Transactions (Uniform Act)

Title 59 - ELECTRONIC RECORDS AND TRANSACTIONS

CHAPTER 719 - ELECTRONIC TRANSACTIONS(UNIFORM ACT)

NRS 719.010 Shorttitle.

NRS 719.020 Definitions.

NRS 719.030 Agreementdefined.

NRS 719.040 Automatedtransaction defined.

NRS 719.050 Computerprogram defined.

NRS 719.060 Contractdefined.

NRS 719.070 Electronicdefined.

NRS 719.080 Electronicagent defined.

NRS 719.090 Electronicrecord defined.

NRS 719.100 Electronicsignature defined.

NRS 719.110 Governmentalagency defined.

NRS 719.120 Informationdefined.

NRS 719.130 Informationprocessing system defined.

NRS 719.140 Persondefined.

NRS 719.150 Recorddefined.

NRS 719.160 Securityprocedure defined.

NRS 719.170 Statedefined.

NRS 719.180 Transactiondefined.

NRS 719.200 Scope.

NRS 719.210 Prospectiveapplication; application of Electronic Signatures in Global and NationalCommerce Act.

NRS 719.220 Useof electronic records and electronic signatures; variation by agreement.

NRS 719.230 Applicationand construction: Promotion of uniformity.

NRS 719.240 Legalrecognition of electronic records, electronic signatures and electroniccontracts.

NRS 719.250 Provisionof information in writing; presentation of records.

NRS 719.260 Attributionand effect of electronic record and electronic signature.

NRS 719.270 Effectof change or error.

NRS 719.280 Notarizationand acknowledgment.

NRS 719.290 Retentionof electronic records; originals.

NRS 719.300 Admissibilityin evidence.

NRS 719.310 Automatedtransaction.

NRS 719.320 Timeand place of sending and receipt.

NRS 719.330 Transferablerecords.

NRS 719.340 Creationand retention of electronic records and conversion of written records bygovernmental agencies.

NRS 719.350 Acceptanceand distribution of electronic records by governmental agencies.

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NRS 719.010 Shorttitle. This chapter may be cited as theUniform Electronic Transactions Act.

(Added to NRS by 2001, 2714)

NRS 719.020 Definitions. As used in this chapter, unless the context otherwiserequires, the words and terms defined in NRS719.030 to 719.180, inclusive, havethe meanings ascribed to them in those sections.

(Added to NRS by 2001, 2714)

NRS 719.030 Agreementdefined. Agreement means the bargain of theparties in fact, as found in their language or inferred from othercircumstances and from rules, regulations and procedures given the effect ofagreements under laws otherwise applicable to a particular transaction.

(Added to NRS by 2001, 2714)

NRS 719.040 Automatedtransaction defined. Automated transactionmeans a transaction conducted or performed, in whole or in part, by electronicmeans or electronic records, in which the acts or records of one or bothparties are not reviewed by a natural person in the ordinary course in forminga contract, performing under an existing contract or fulfilling an obligationrequired by the transaction.

(Added to NRS by 2001, 2714)

NRS 719.050 Computerprogram defined. Computer program means aset of statements or instructions to be used directly or indirectly in aninformation processing system in order to bring about a certain result.

(Added to NRS by 2001, 2715)

NRS 719.060 Contractdefined. Contract means the total legalobligation resulting from the parties agreement as affected by this chapterand other applicable law.

(Added to NRS by 2001, 2715)

NRS 719.070 Electronicdefined. Electronic means relating to technologyhaving electrical, digital, magnetic, wireless, optical, electromagnetic or similarcapabilities.

(Added to NRS by 2001, 2715)

NRS 719.080 Electronicagent defined. Electronic agent means acomputer program or an electronic or other automated means used independentlyto initiate an action or respond to electronic records or performances in wholeor in part, without review or action by a natural person.

(Added to NRS by 2001, 2715)

NRS 719.090 Electronicrecord defined. Electronic record means arecord created, generated, sent, communicated, received or stored by electronicmeans.

(Added to NRS by 2001, 2715)

NRS 719.100 Electronicsignature defined. Electronic signaturemeans an electronic sound, symbol or process attached to or logicallyassociated with a record and executed or adopted by a person with the intent tosign the record.

(Added to NRS by 2001, 2715)

NRS 719.110 Governmentalagency defined. Governmental agency meansan executive, legislative or judicial agency, department, board, commission,authority, institution or instrumentality of the Federal Government or of astate or of a county, municipality or other political subdivision of a state.

(Added to NRS by 2001, 2715)

NRS 719.120 Informationdefined. Information means data, text, images,sounds, codes, computer programs, software, databases or the like.

(Added to NRS by 2001, 2715)

NRS 719.130 Informationprocessing system defined. Informationprocessing system means an electronic system for creating, generating,sending, receiving, storing, displaying or processing information.

(Added to NRS by 2001, 2715)

NRS 719.140 Persondefined. Person includes a governmentalagency and a public corporation.

(Added to NRS by 2001, 2715)

NRS 719.150 Recorddefined. Record means information that is inscribedon a tangible medium or that is stored in an electronic or other medium and isretrievable in perceivable form.

(Added to NRS by 2001, 2715)

NRS 719.160 Securityprocedure defined. Security procedure meansa procedure employed for the purpose of verifying that an electronic signature,record or performance is that of a specific person or for detecting changes orerrors in the information in an electronic record. The term includes aprocedure that requires the use of algorithms or other codes, identifying wordsor numbers, encryption or callback, or other acknowledgment procedures.

(Added to NRS by 2001, 2715)

NRS 719.170 Statedefined. State means a state of the UnitedStates, the District of Columbia, Puerto Rico, the United States Virgin Islandsor any territory or insular possession subject to the jurisdiction of theUnited States. The term includes an Indian tribe or band, or Alaskan nativevillage, which is recognized by federal law or formally acknowledged by astate.

(Added to NRS by 2001, 2715)

NRS 719.180 Transactiondefined. Transaction means an action or setof actions occurring between two or more persons relating to the conduct of business,commercial or governmental affairs.

(Added to NRS by 2001, 2715)

NRS 719.200 Scope.

1. Except as otherwise provided in subsection 2, theprovisions of this chapter apply to electronic records and electronicsignatures relating to a transaction.

2. The provisions of this chapter do not apply to atransaction to the extent it is governed by:

(a) A law governing the creation and execution ofwills, codicils or testamentary trusts; or

(b) The Uniform Commercial Code other than NRS 104.1306, 104.2101 to 104.2725, inclusive, and 104A.2101 to 104A.2532, inclusive.

3. The provisions of this chapter apply to anelectronic record or electronic signature otherwise excluded from theapplication of this chapter under subsection 2 to the extent it is governed bya law other than those specified in subsection 2.

4. A transaction subject to the provisions of thischapter is also subject to other applicable substantive law.

(Added to NRS by 2001, 2715; A 2005, 885)

NRS 719.210 Prospectiveapplication; application of Electronic Signatures in Global and NationalCommerce Act.

1. The provisions of this chapter apply to anyelectronic record or electronic signature created, generated, sent,communicated, received or stored on or after October 1, 2001.

2. The provisions of section 101(c) of the ElectronicSignatures in Global and National Commerce Act, 15 U.S.C. 7001 et seq.,apply under this chapter to a transaction in which a natural person acquiresgoods or services that are used primarily for personal, family or householdpurposes.

(Added to NRS by 2001, 2716)

NRS 719.220 Useof electronic records and electronic signatures; variation by agreement.

1. The provisions of this chapter do not require arecord or signature to be created, generated, sent, communicated, received,stored or otherwise processed or used by electronic means or in electronicform.

2. The provisions of this chapter apply only totransactions between parties each of whom has agreed to conduct transactions byelectronic means. Whether the parties agree to conduct a transaction byelectronic means is determined from the context and surrounding circumstances, includingthe parties conduct.

3. A party that agrees to conduct a transaction byelectronic means may refuse to conduct other transactions by electronic means.The right granted by this subsection may not be waived by agreement.

4. Except as otherwise provided in this chapter, theeffect of any of the provisions of this chapter may be varied by agreement. Thepresence in certain provisions of this chapter of the words unless otherwiseagreed or words of similar import does not imply that the effect of otherprovisions may not be varied by agreement.

5. Whether an electronic record or electronicsignature has legal consequences is determined by the provisions of thischapter and other applicable law.

(Added to NRS by 2001, 2716)

NRS 719.230 Applicationand construction: Promotion of uniformity. Inapplying and construing this uniform act, consideration must be given to theneed to promote uniformity of the law with respect to its subject matter amongstates that enact it.

(Added to NRS by 2001, 2721)

NRS 719.240 Legalrecognition of electronic records, electronic signatures and electroniccontracts.

1. A record or signature may not be denied legaleffect or enforceability solely because it is in electronic form.

2. A contract may not be denied legal effect orenforceability solely because an electronic record was used in its formation.

3. If a law requires a record to be in writing, anelectronic record satisfies the law.

4. If a law requires a signature, an electronicsignature satisfies the law.

(Added to NRS by 2001, 2716)

NRS 719.250 Provisionof information in writing; presentation of records.

1. If parties have agreed to conduct a transaction byelectronic means and a law requires that a contract or other record relating tothe transaction be in writing, the legal effect, validity or enforceability ofthe contract or other record may be denied if an electronic record of thecontract or other record is not in a form that is capable of being retained andaccurately reproduced for later reference by all parties or other persons whoare entitled to retain the contract or record.

2. If a law other than this chapter requires a recordto be posted or displayed in a certain manner, to be sent, communicated ortransmitted by a specified method or to contain information that is formattedin a certain manner, the following rules apply:

(a) The record must be posted or displayed in themanner specified in the other law.

(b) Except as otherwise provided in paragraph (b) ofsubsection 6, the record must be sent, communicated or transmitted by themethod specified in the other law.

(c) The record must contain the information formattedin the manner specified in the other law.

3. If a sender inhibits the ability of a recipient tostore or print an electronic record, the electronic record is not enforceableagainst the recipient.

4. A requirement that a notice be in writing is notsatisfied by providing or delivering the notice electronically if the notice isa notice of:

(a) The cancellation or termination of service by apublic utility;

(b) Default, acceleration, repossession, foreclosure oreviction, or the right to cure, under a credit agreement secured by, or arental agreement for, a primary residence of a natural person;

(c) The cancellation or termination of a policy ofhealth insurance, benefits received pursuant to a policy of health insurance orbenefits received pursuant to a policy of life insurance, excluding annuities;or

(d) The recall of a product, or material failure of aproduct, that risks endangering the health or safety of a person.

5. A requirement that a document be in writing is notsatisfied by providing or delivering the document electronically if thedocument is required to accompany any transportation or handling of hazardousmaterials, pesticides, or other toxic or dangerous materials.

6. The requirements of this section may not be variedby agreement, but:

(a) To the extent a law other than this chapterrequires that a contract or other record relating to a transaction be inwriting but permits that requirement to be varied by agreement, the provisionsof subsection 1 concerning the denial of the legal effect, validity orenforceability of a contract or other record relating to a transaction may alsobe varied by agreement; and

(b) A requirement under a law other than this chapterto send, communicate or transmit a record by first-class mail, postage prepaid,regular United States mail, may be varied by agreement to the extent permittedby the other law.

(Added to NRS by 2001, 2716)

NRS 719.260 Attributionand effect of electronic record and electronic signature.

1. An electronic record or electronic signature isattributable to a person if it was the act of the person. The act of the personmay be shown in any manner, including a showing of the efficacy of any securityprocedure applied to determine the person to whom the electronic record orelectronic signature was attributable.

2. The effect of an electronic record or electronicsignature attributed to a person under subsection 1 is determined from thecontext and surrounding circumstances at the time of its creation, execution oradoption, including the parties agreement, if any, and otherwise as providedby law.

(Added to NRS by 2001, 2717)

NRS 719.270 Effectof change or error. If a change or error in anelectronic record occurs in a transmission between parties to a transaction,the following rules apply:

1. If the parties have agreed to use a securityprocedure to detect changes or errors and one party has conformed to theprocedure, but the other party has not, and the nonconforming party would havedetected the change or error had that party also conformed, the conformingparty may avoid the effect of the changed or erroneous electronic record.

2. In an automated transaction involving a naturalperson, the natural person may avoid the effect of an electronic record thatresulted from an error made by him in dealing with the electronic agent ofanother person if the electronic agent did not provide an opportunity for theprevention or correction of the error and, at the time the natural personlearns of the error, the natural person:

(a) Promptly notifies the other person of the error andthat the natural person did not intend to be bound by the electronic recordreceived by the other person;

(b) Takes reasonable steps, including steps thatconform to the other persons reasonable instructions, to return to the otherperson or, if instructed by the other person, to destroy the considerationreceived, if any, as a result of the erroneous electronic record; and

(c) Has not used or received any benefit or value fromthe consideration, if any, received from the other person.

3. If neither subsection 1 nor subsection 2 applies,the change or error has the effect provided by other law, including the law ofmistake and the parties contract, if any.

4. Subsections 2 and 3 may not be varied by agreement.

(Added to NRS by 2001, 2718)

NRS 719.280 Notarizationand acknowledgment. If a law requires a signatureor record to be notarized, acknowledged, verified or made under oath, the requirementis satisfied if the electronic signature of the person authorized to performthose acts, together with all other information required to be included byother applicable law, is attached to or logically associated with the signatureor record.

(Added to NRS by 2001, 2718)

NRS 719.290 Retentionof electronic records; originals.

1. If a law requires that a record be retained, therequirement is satisfied by retaining an electronic record of the informationin the record which:

(a) Accurately reflects the information set forth inthe record after it was first generated in its final form as an electronicrecord or otherwise; and

(b) Remains accessible to all persons who are legallyentitled to access to the record, for the period required by law, in a formthat is capable of being accurately reproduced for later reference.

2. A requirement to retain a record in accordance withsubsection 1 does not apply to any information the sole purpose of which is toenable the record to be sent, communicated or received.

3. A person may satisfy subsection 1 by using theservices of another person if the requirements of that subsection aresatisfied.

4. If a law requires a record to be presented orretained in its original form, or provides consequences if the record is notpresented or retained in its original form, that law is satisfied by anelectronic record retained in accordance with subsection 1.

5. If a law requires retention of a check, thatrequirement is satisfied by retention of an electronic record of theinformation on the front and back of the check in accordance with subsection 1.

6. A record retained as an electronic record inaccordance with subsection 1 satisfies a law requiring a person to retain arecord for evidentiary, audit or like purposes, unless a law enacted afterOctober 1, 2001, specifically prohibits the use of an electronic record for thespecified purpose.

7. This section does not preclude a governmentalagency of this state from specifying additional requirements for the retentionof a record subject to the agencys jurisdiction.

(Added to NRS by 2001, 2718)

NRS 719.300 Admissibilityin evidence. In a proceeding, evidence of arecord or signature must not be excluded solely because it is in electronicform.

(Added to NRS by 2001, 2719)

NRS 719.310 Automatedtransaction. In an automated transaction, thefollowing rules apply:

1. A contract may be formed by the interaction ofelectronic agents of the parties, even if no natural person was aware of orreviewed the electronic agents actions or the resulting terms and agreements.

2. A contract may be formed by the interaction of anelectronic agent and a natural person, acting on his own behalf or for anotherperson, as by an interaction in which the natural person performs actions thathe is free to refuse to perform and which he knows or has reason to know willcause the electronic agent to complete the transaction or performance.

3. The terms of the contract are determined by thesubstantive law applicable to it.

(Added to NRS by 2001, 2719)

NRS 719.320 Timeand place of sending and receipt.

1. Unless otherwise agreed between the sender and therecipient, an electronic record is sent when it:

(a) Is addressed properly or otherwise directedproperly to an information processing system that the recipient has designatedor uses for the purpose of receiving electronic records or information of thetype sent and from which the recipient is able to retrieve the electronicrecord;

(b) Is in a form capable of being processed by thatsystem; and

(c) Enters an information processing system outside thecontrol of the sender or of a person that sent the electronic record on behalfof the sender or enters a region of the information processing systemdesignated or used by the recipient which is under the control of therecipient.

2. Unless otherwise agreed between a sender and therecipient, an electronic record is received when:

(a) It enters an information processing system that therecipient has designated or uses for the purpose of receiving electronicrecords or information of the type sent and from which the recipient is able toretrieve the electronic record; and

(b) It is in a form capable of being processed by thatsystem.

3. Subsection 2 applies even if the place the informationprocessing system is located is different from the place the electronic recordis deemed to be received under subsection 4.

4. Unless otherwise expressly provided in theelectronic record or agreed between the sender and the recipient, an electronicrecord is deemed to be sent from the senders place of business and to bereceived at the recipients place of business. For purposes of this subsection,the following rules apply:

(a) If the sender or recipient has more than one placeof business, his place of business is the place having the closest relationshipto the underlying transaction.

(b) If the sender or the recipient does not have aplace of business, the place of business is the senders or recipientsresidence, as the case may be.

5. An electronic record is received under subsection 2even if no natural person is aware of its receipt.

6. Receipt of an electronic acknowledgment from aninformation processing system described in subsection 2 establishes that arecord was received but, by itself, does not establish that the content sentcorresponds to the content received.

7. If a person is aware that an electronic recordpurportedly sent under subsection 1, or purportedly received under subsection2, was not actually sent or received, the legal effect of the sending orreceipt is determined by other applicable law. Except to the extent permittedby the other law, the requirements of this subsection may not be varied byagreement.

(Added to NRS by 2001, 2719)

NRS 719.330 Transferablerecords.

1. In this section, transferable record means anelectronic record that:

(a) Would be a note under NRS 104.3101 to 104.3605, inclusive, or a document under NRS 104.7101 to 104.7603, inclusive, if the electronicrecord were in writing; and

(b) The issuer of the electronic record expressly hasagreed is a transferable record.

2. A person has control of a transferable record if asystem employed for evidencing the transfer of interests in the transferablerecord reliably establishes him as the person to whom the transferable recordwas issued or transferred.

3. A system satisfies subsection 2, and a person isdeemed to have control of a transferable record, if the transferable record iscreated, stored and assigned in such a manner that:

(a) A single authoritative copy of the transferablerecord exists which is unique, identifiable, and, except as otherwise providedin paragraphs (d), (e) and (f), unalterable;

(b) The authoritative copy identifies the personasserting control as:

(1) The person to whom the transferable recordwas issued; or

(2) If the authoritative copy indicates that thetransferable record has been transferred, the person to whom the transferablerecord was most recently transferred;

(c) The authoritative copy is communicated to andmaintained by the person asserting control or its designated custodian;

(d) Copies or revisions that add or change anidentified assignee of the authoritative copy can be made only with the consentof the person asserting control;

(e) Each copy of the authoritative copy and any copy ofa copy is readily identifiable as a copy that is not the authoritative copy;and

(f) Any revision of the authoritative copy is readilyidentifiable as authorized or unauthorized.

4. Except as otherwise agreed, a person having controlof a transferable record is the holder, as defined in paragraph (u) ofsubsection 2 of NRS 104.1201, of thetransferable record and has the same rights and defenses as a holder of anequivalent record or writing under the Uniform Commercial Code, including, ifthe applicable statutory requirements under NRS104.7501, 104.9308 or subsection 1of NRS 104.3302 are satisfied, therights and defenses of a holder to whom a negotiable document of title has beenduly negotiated, a purchaser, or a holder in due course, respectively.Delivery, possession and endorsement are not required to obtain or exercise anyof the rights under this subsection.

5. Except as otherwise agreed, an obligor under atransferable record has the same rights and defenses as an equivalent obligorunder equivalent records or writings under the Uniform Commercial Code.

6. If requested by a person against whom enforcementis sought, the person seeking to enforce the transferable record shall providereasonable proof that he is in control of the transferable record. Proof mayinclude access to the authoritative copy of the transferable record and relatedbusiness records sufficient to review the terms of the transferable record andto establish the identity of the person having control of the transferablerecord.

(Added to NRS by 2001, 2720; A 2005, 886)

NRS 719.340 Creationand retention of electronic records and conversion of written records bygovernmental agencies. Each governmentalagency of this State shall determine whether, and the extent to which, it willcreate and retain electronic records and convert written records to electronicrecords.

(Added to NRS by 2001, 2721)

NRS 719.350 Acceptanceand distribution of electronic records by governmental agencies.

1. Except as otherwise provided in subsection 6 of NRS 719.290, each governmental agency ofthis state shall determine whether, and the extent to which, it will send andaccept electronic records and electronic signatures to and from other personsand otherwise create, generate, communicate, store, process, use and rely uponelectronic records and electronic signatures.

2. To the extent that a governmental agency useselectronic records and electronic signatures under subsection 1, thegovernmental agency, giving due consideration to security, may specify:

(a) The manner and format in which the electronicrecords must be created, generated, sent, communicated, received and stored andthe systems established for those purposes;

(b) If electronic records must be signed by electronicmeans, the type of electronic signature required, the manner and format inwhich the electronic signature must be affixed to the electronic record, andthe identity of, or criteria that must be met by, any third party used by aperson filing a document to facilitate the process;

(c) Processes and procedures as appropriate to ensureadequate preservation, disposition, integrity, security, confidentiality andauditability of electronic records; and

(d) Any other required attributes for electronicrecords which are specified for corresponding nonelectronic records orreasonably necessary under the circumstances.

3. Except as otherwise provided in subsection 6 of NRS 719.290, the provisions of this chapterdo not require a governmental agency of this state to use or permit the use ofelectronic records or electronic signatures.

(Added to NRS by 2001, 2721)