Section 8-1A-8

Provision of information in writing; presentation of records.

(a) Subject to subsection (e), if parties have agreed to conduct a transaction by electronic means and a law requires a person to provide, send, or deliver information in writing to another person, the requirement is satisfied if the information is provided, sent, or delivered, as the case may be, in an electronic record capable of retention by the recipient at the time of receipt. An electronic record is not capable of retention by the recipient if the sender or its information processing system inhibits the ability of the recipient to print or store the electronic record.

(b) If a law other than this chapter requires a record to be posted or displayed in a certain manner, to be sent, communicated, or transmitted by a specified method, or to contain information that is formatted in a certain manner, the following rules apply:

(1) The record shall be posted or displayed in the manner specified in the other law.

(2) Except as otherwise provided in subdivision (2) of subsection (d), the record shall be sent, communicated, or transmitted by the method specified in the other law.

(3) The record shall contain the information formatted in the manner specified in the other law.

(c) If a sender inhibits the ability of a recipient to store or print an electronic record, the electronic record is not enforceable against the recipient.

(d) The requirements of this section may not be varied by agreement, but both of the following apply:

(1) To the extent a law other than this chapter requires information to be provided, sent, or delivered in writing but permits that requirement to be varied by agreement, the requirement under subsection (a) that the information be in the form of an electronic record capable of retention may also be varied by agreement.

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

(e)(1) If a statute, regulation, or other rule of law requires that information relating to a transaction or transactions be provided or made available to a consumer in writing, the use of an electronic record to provide or make available, whichever is required, such information satisfies the requirement that such information be in writing if each of the following is met:

a. The consumer has affirmatively consented to such use and has not withdrawn such consent.

b. The consumer, prior to consenting, is provided with a clear and conspicuous statement that does all of the following:

1. Informs the consumer of both of the following:

(i) Any right or option of the consumer to have the record provided or made available on paper or in nonelectronic form.

(ii) The right of the consumer to withdraw the consent to have the record provided or made available in an electronic form and of any conditions, consequences (which may include termination of the parties' relationship), or fees in the event of such withdrawal.

2. Informs the consumer of whether the consent applies:

(i) Only to the particular transaction which gave rise to the obligation to provide the record.

(ii) To identified categories of records that may be provided or made available during the course of the parties' relationship.

3. Describes the procedures the consumer shall use to withdraw consent as provided in subparagraph 1. of paragraph b. of subdivision (1) of this subsection and to update information needed to contact the consumer electronically.

4. Informs the consumer:

(i) How, after the consent, the consumer, upon request, may obtain a paper copy of an electronic record.

(ii) Whether any fee will be charged for such copy.

c. If, with respect to the consumer, both of the following occur:

1. Prior to consenting, the consumer is provided with a statement of the hardware and software requirements for access to and retention of the electronic records.

2. The consumer consents electronically, or confirms his or her consent electronically, in a manner that reasonably demonstrates that the consumer can access information in the electronic form that will be used to provide the information that is the subject of the consent.

d. After the consent of a consumer in accordance with paragraph a. of subdivision (1) of this subsection, if a change in the hardware or software requirements needed to access or retain electronic records creates a material risk that the consumer will not be able to access or retain a subsequent electronic record that was the subject of the consent, the person providing the electronic record:

1. Provides the consumer with a statement of (i) the revised hardware and software requirements for access to and retention of the electronic records, and (ii) the right to withdraw consent without the imposition of any fees for such withdrawal and without the imposition of any condition or consequence that was not disclosed under subparagraph 1. of paragraph b. of subdivision (1) of this subsection.

2. Again complies with paragraph c. of subdivision (1) of this subsection.

(2) a. Nothing in this chapter affects the content or timing of any disclosure or other record required to be provided or made available to any consumer under any statute, regulation, or other rule of law.

b. If a law that was enacted prior to this chapter expressly requires a record to be provided or made available by a specified method that requires verification or acknowledgment of receipt, the record may be provided or made available electronically only if the method used provides verification or acknowledgment of receipt, whichever is required.

(3) The legal effectiveness, validity, or enforceability of any contract executed by a consumer shall not be denied solely because of the failure to obtain electronic consent or confirmation of consent by that consumer in accordance with subparagraph 2. of paragraph c. of subdivision (1) of this subsection.

(4) Withdrawal of consent by a consumer shall not affect the legal effectiveness, validity, or enforceability of electronic records provided or made available to that consumer in accordance with subdivision (1) prior to implementation of the consumer's withdrawal of consent. A consumer's withdrawal of consent shall be effective within a reasonable period of time after receipt of the withdrawal by the provider of the record. Failure to comply with paragraph d. of subdivision (1) of this subsection may, at the election of the consumer, be treated as a withdrawal of consent for purposes of this subdivision.

(5) This subsection does not apply to any records that are provided or made available to a consumer who has consented prior to January 1, 2002, to receive such records in electronic form as permitted by any statute, regulation, or other rule of law.

(6) An oral communication or a recording of an oral communication shall not qualify as an electronic record for purposes of this subsection except as otherwise provided under applicable law.

(Act 2001-458, p. 597, §1.)