This Section provides guidance to the parties regarding how the parties should conduct their affairs in order to assure their compliance with national laws which may define or restrict the content of any Message. In addition, certain laws (such as data protection laws) restrict the communication of certain information across national boundaries.
Section 5.2.1 requires each party to ensure compliance by the content of a Message with all legal requirements relating to that party. The term "storage" relates to storage of the data contained in any Message, not the manner in which Messages may be stored.
The Section does not require one trading partner to assure compliance by its Messages with the laws regulating the other. However, the remaining sub-sections outline how the parties will conduct themselves if the Message from one trading partner, when received or stored, might cause the other to violate an applicable law.
Notice is required (as provided in Section 7.6) and then the originating party must refrain from recurring conduct which relates to the violation. An example might involve the sending of a message including personal data from a country with no data protection laws into a country with those laws in effect.
SECTION 6: LIABILITY
Section 6.1. Force Majeure
This Section reinforces the mutual intentions of the parties to give effect to their electronic communications by removing the risk of unexpected liabilities that might arise in conducting that activity. Section 6.1 includes language customary to many commercial agreements which permits the parties to be excused for liability when a delay or failure to perform is caused by certain events beyond their respective control.
Of course, the parties may specify with greater detail events that they will consider as "force majeure" which are outside the party's control. Should certain events occur, such as a natural disaster, which can be contemplated, liability is still not imposed if the consequences of such a non-controllable event can not be avoided or overcome.
Section 6.2. Excluded Damages
This Section states the mutual intent of the parties that their use of EDI under this Agreement does not expose them to the possibility of being liable for the types of damages which are specified. Different national legal structures may entitle commercial parties to collect damages (including, where applicable, special, consequential, indirect or exemplary damages) in the event a contractual obligation is breached. These types of damages are often awarded to compensate for lost profits or to sanction particularly inappropriate conduct.
The Section does not govern whether the specified kinds of damages might be imposed under the terms and conditions of other contractual obligations between the parties. Certain national laws may limit the enforceability of the Section.
Section 6.3. Provider Liability
Many companies using EDI also obtain the services of a third party provider (often known as a value-added network) to assist in performing required communication or related functions (for example, maintaining an electronic mailbox to which Messages can be sent or the off-site storage of records relating to Messages).
The choice of which third party provider to engage, and the terms of the contract between a trading partner and its third party provider, are not within the control of the other trading partner. Accordingly, Section 6.3.1 requires a trading partner to be responsible for the acts, failures or omissions of its provider. (Section 6.3.1 applies both in the event that the trading partners engage different third party providers or voluntarily elect to use the same provider.)
In certain cases, one trading partner will require the use of a particular third party provider by its trading partner. Section 6.3.2, under those circumstances, shifts responsibility for the provider's conduct to the instructing trading partner.
SECTION 7: GENERAL PROVISIONS
Section 7 includes terms often found in many types of commercial agreements. These provisions are not an exclusive listing of general provisions, and the custom and practice in a particular industry or region may include other similar general provisions.
Section 7.1. Governing Law
The Agreement is prepared, in the absence of applicable statutes or regulations governing the use of EDI, to best assure the parties of the validity and enforceability of their EDI communications. This result is intended to be possible under a variety of legal systems. Trading partners are encouraged to specify the national laws under which the Agreement will be governed. Their choice may be affected by differences in national laws relating to computer privacy, data protection, transborder data movements or similar issues. However, under most legal systems, the choice must bear some relationship to the parties.
Since certain legal rules may conflict in seeking to resolve disputes arising on transactions based on the use of EDI under the Agreement, the Agreement specifies how those conflicts are to be resolved.
The reference to national laws may not appropriately specify certain regional agreements or regulations which parties may desire so apply to the Agreement. In that case, parties are encouraged to add appropriate wording.
