CHAPTER 14

ELECTRONIC COMMERCE

Article 14.1:  Definitions

For the purposes of this Chapter:

computing facilities means computer servers and storage devices for processing or storing information for commercial use;

covered person1 means:

(a)     a covered investment as defined in Article 9.1 (Definitions);

(b)    an investor of a Party as defined in Article 9.1 (Definitions), but does not include an investor in a financial institution; or

(c)     a service supplier of a Party as defined in Article 10.1 (Definitions), but does not include a “financial institution” or a “cross-border financial service

supplier of a Party” as defined in Article 11.1 (Definitions);

digital  product  means  a  computer  programme,  text,  video,  image,  sound recording or other product that is digitally encoded, produced for commercial sale or distribution, and that can be transmitted electronically;2, 3

electronic authentication means the process or act of verifying the identity of a party to an electronic communication or transaction and ensuring the integrity of an electronic communication;

electronic  transmission  or  transmitted  electronically  means  a  transmission made using any electromagnetic means, including by photonic means;

personal information means any information, including data, about an identified or identifiable natural person;

trade administration documents means forms issued or controlled by a Party that must be completed by or for an importer or exporter in connection with the import or export of goods; and

unsolicited commercial electronic message means an electronic message which is sent for commercial or marketing purposes to an electronic address, without the consent of the recipient or despite the explicit rejection of the recipient, through an Internet access service supplier or, to the extent provided for under the laws and regulations of each Party, other telecommunications service.

Article 14.2:  Scope and General Provisions

1.        The Parties recognise the economic growth and opportunities provided by electronic commerce and the importance of frameworks that promote consumer confidence in electronic commerce and of avoiding unnecessary barriers to its use and development.

2.        This Chapter shall apply to measures adopted or maintained by a Party that affect trade by electronic means.

3.        This Chapter shall not apply to:

 (a)       government procurement; or

(b)      information  held  or  processed  by  or  on  behalf  of  a  Party,  or measures related to such information, including measures related to its collection.

4.        For greater certainty, measures affecting the supply of a service delivered or performed electronically are subject to the obligations contained in the relevant provisions  of  Chapter  9  (Investment),  Chapter  10  (Cross-Border  Trade  in Services) and Chapter 11 (Financial Services), including any exceptions or non- conforming measures set out in this Agreement that are applicable to those obligations.

5.       For greater certainty, the obligations contained in Article 14.4 (Non- Discriminatory Treatment of Digital Products), Article 14.11 (Cross-Border Transfer of Information by Electronic Means), Article 14.13 (Location of Computing Facilities) and Article 14.17 (Source Code) are:

 (a)       subject to the relevant provisions, exceptions and non-conforming measures of Chapter 9 (Investment), Chapter 10 (Cross-Border Trade in Services) and Chapter 11 (Financial Services); and

 (b)       to be read in conjunction with any other relevant provisions in this

Agreement.

6.        The obligations contained in Article 14.4 (Non-Discriminatory Treatment of Digital Products), Article 14.11 (Cross-Border Transfer of Information by Electronic Means) and Article 14.13 (Location of Computing Facilities) shall not apply to the non-conforming aspects of measures adopted or maintained in accordance with Article 9.12 (Non-Conforming Measures), Article 10.7 (Non- Conforming Measures) or Article 11.10 (Non-Conforming Measures).

Article 14.3:  Customs Duties

1.         No  Party  shall  impose  customs  duties  on  electronic  transmissions, including content transmitted electronically, between a person of one Party and a person of another Party.

2.         For greater certainty, paragraph 1 shall not preclude a Party from imposing internal  taxes,  fees  or  other  charges  on  content  transmitted  electronically, provided that such taxes, fees or charges are imposed in a manner consistent with this Agreement.

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