This title may be cited as the Maryland Uniform Computer Information Transactions Act.

In this title: “Access contract” means a contract to obtain by electronic means access to, or information from, an information processing system of another person, or the equivalent of such access. “Access material” means any information or material, such as a document, address, or access code, that is necessary to obtain authorized access to information or control or possession of a copy. “Aggrieved party” means a party entitled to a remedy for breach of contract. “Agreement” means the bargain of the parties in fact as found in their language or by implication from other circumstances, including course of performance, course of dealing, and usage of trade as provided in this title. “Attribution procedure” means a procedure to verify that an electronic authentication, display, message, record, or performance is that of a particular person or to detect changes or errors in information. The term includes a procedure that requires the use of algorithms or other codes, identifying words or numbers, encryption, or callback or other acknowledgment. “Authenticate” means: To sign; or With the intent to sign a record, otherwise to execute or adopt an electronic symbol, sound, message, or process referring to, attached to, included in, or logically associated or linked with that record. “Automated transaction” means a transaction in which a contract is formed in whole or part by electronic actions of one or both parties which are not previously reviewed by an individual in the ordinary course. “Cancellation” means the ending of a contract by a party because of breach of contract by another party. “Computer” means an electronic device that accepts information in digital or similar form and manipulates it for a result based on a sequence of instructions. “Computer information” means information in electronic form which is obtained from or through the use of a computer or which is in a form capable of being processed by a computer. The term includes a copy of the information and any documentation or packaging associated with the copy. “Computer information transaction” means an agreement or the performance of it to create, modify, transfer, or license computer information or informational rights in computer information. The term includes a support contract under § 22–612 of this title. The term does not include a transaction merely because the parties’ agreement provides that their communications about the transaction will be in the form of computer information. “Computer program” means a set of statements or instructions to be used directly or indirectly in a computer to bring about a certain result. The term does not include separately identifiable informational content. “Consequential damages”: Resulting from breach of contract includes (i) any loss resulting from general or particular requirements and needs of which the breaching party at the time of contracting had reason to know and which could not reasonably be prevented and (ii) any injury to an individual or damage to property other than the subject matter of the transaction proximately resulting from breach of warranty; Resulting from wrongful use of electronic self–help as defined in § 22–816 of this title includes any loss resulting from general or particular requirements and needs of which the party exercising electronic self–help at the time of the exercise had reason to know and which could not reasonably be prevented; and Does not include direct damages or incidental damages. “Conspicuous”, with reference to a term, means so written, displayed, or presented that a reasonable person against which it is to operate ought to have noticed it. A term in an electronic record intended to evoke a response by an electronic agent is conspicuous if it is presented in a form that would enable a reasonably configured electronic agent to take it into account or react to it without review of the record by an individual. Conspicuous terms include the following: With respect to a person: A heading in capitals in a size equal to or greater than, or in contrasting type, font, or color to, the surrounding text; Language in the body of a record or display in larger or other contrasting type, font, or color or set off from the surrounding text by symbols or other marks that draw attention to the language; and A term prominently referenced in an electronic record or display which is readily accessible or reviewable from the record or display; and With respect to a person or an electronic agent, a term or reference to a term that is so placed in a record or display that the person or electronic agent cannot proceed without taking action with respect to the particular term or reference. “Consumer” means an individual who is a licensee of information or informational rights that the individual at the time of contracting intended to be used primarily for personal, family, or household purposes. The term does not include an individual who is a licensee primarily for professional or commercial purposes, including agriculture, business management, and investment management other than management of the individual’s personal or family investments. “Consumer contract” means a contract between a merchant licensor and a consumer. “Contract” means the total legal obligation resulting from the parties’ agreement as affected by this title and other applicable law. “Contract fee” means the price, fee, rent, or royalty payable in a contract under this title or any part of the amount payable. “Contractual use term” means an enforceable term that defines or limits the use, disclosure of, or access to licensed information or informational rights, including a term that defines the scope of a license. “Copy” means the medium on which information is fixed on a temporary or permanent basis and from which it can be perceived, reproduced, used, or communicated, either directly or with the aid of a machine or device. “Course of dealing” means a sequence of previous conduct between the parties to a particular transaction which establishes a common basis of understanding for interpreting their expressions and other conduct. “Course of performance” means repeated performances, under a contract that involves repeated occasions for performance, which are accepted or acquiesced in without objection by a party having knowledge of the nature of the performance and an opportunity to object to it. “Court” includes an arbitration or other dispute–resolution forum if the parties have agreed to use of that forum or its use is required by law. “Delivery”, with respect to a copy, means the voluntary physical or electronic transfer of possession or control. “Direct damages” means compensation for losses measured by § 22–808(b)(1) or § 22–809(a)(1) of this title. The term does not include consequential damages or incidental damages. “Electronic” means relating to technology having electrical, digital, magnetic, wireless, optical, electromagnetic, or similar capabilities. “Electronic agent” means a computer program, or electronic or other automated means, used by a person to initiate an action, or to respond to electronic messages or performances, on the person’s behalf without review or action by an individual at the time of the action or response to the message or performance. “Electronic message” means a record or display that is stored, generated, or transmitted by electronic means for the purpose of communication to another person or electronic agent. “Financial accommodation contract” means an agreement under which a person extends a financial accommodation to a licensee and which does not create a security interest governed by Title 9 of this article. The agreement may be in any form, including a license or lease. “Financial services transaction” means an agreement that provides for, or a transaction that is, or entails access to, use, transfer, clearance, settlement, or processing of: A deposit, loan, funds, or monetary value represented in electronic form and stored or capable of storage by electronic means and retrievable and transferable by electronic means, or other right to payment to or from a person; An instrument or other item; A payment order, credit card transaction, debit card transaction, funds transfer, automated clearinghouse transfer, or similar wholesale or retail transfer of funds; A letter of credit, document of title, financial asset, investment property, or similar asset held in a fiduciary or agency capacity; or Related identifying, verifying, access–enabling, authorizing, or monitoring information. “Financier” means a person that provides a financial accommodation to a licensee under a financial accommodation contract and either (i) becomes a licensee for the purpose of transferring or sublicensing the license to the party to which the financial accommodation is provided or (ii) obtains a contractual right under the financial accommodation contract to preclude the licensee’s use of the information or informational rights under a license in the event of breach of the financial accommodation contract. The term does not include a person that selects, creates, or supplies the information that is the subject of the license, owns the informational rights in the information, or provides support for, modifications to, or maintenance of the information. “Good faith” means honesty in fact and the observance of reasonable commercial standards of fair dealing. “Goods” means all things that are movable at the time relevant to the computer information transaction. The term includes the unborn young of animals, growing crops, and other identified things to be severed from realty which are covered by § 2–107 of this article. The term does not include computer information, money, the subject matter of foreign exchange transactions, documents, letters of credit, letter–of–credit rights, instruments, investment property, accounts, chattel paper, deposit accounts, or general intangibles. “Incidental damages” resulting from breach of contract: Means compensation for any commercially reasonable charges, expenses, or commissions reasonably incurred by an aggrieved party with respect to: Inspection, receipt, transmission, transportation, care, or custody of identified copies or information that is the subject of the breach; Stopping delivery, shipment, or transmission; Effecting cover or retransfer of copies or information after the breach; Other efforts after the breach to minimize or avoid loss resulting from the breach; and Matters otherwise incident to the breach; and Does not include consequential damages or direct damages. “Information” means data, text, images, sounds, mask works, or computer programs, including collections and compilations of them. “Information processing system” means an electronic system for creating, generating, sending, receiving, storing, displaying, or processing information. “Informational content” means information that is intended to be communicated to or perceived by an individual in the ordinary use of the information, or the equivalent of that information. “Informational rights” include all rights in information created under laws governing patents, copyrights, mask works, trade secrets, trademarks, publicity rights, or any other law that gives a person, independently of contract, a right to control or preclude another person’s use of or access to the information on the basis of the rights holder’s interest in the information. “Insurance services transaction” means an agreement that provides for, or a transaction that is, or entails access to, use, transfer, clearance, settlement, or processing of: An insurance policy, contract, or certificate; or A right to payment under an insurance policy, contract, or certificate. “Knowledge”, with respect to a fact, means actual knowledge of the fact. “License” means a contract that authorizes access to, or use, distribution, performance, modification, or reproduction of, information or informational rights, but expressly limits the access or uses authorized or expressly grants fewer than all rights in the information, whether or not the transferee has title to a licensed copy. The term includes an access contract, a lease of a computer program, and a consignment of a copy. The term does not include a reservation or creation of a security interest to the extent the interest is governed by Title 9 of this article. “Licensee” means a person entitled by agreement to acquire or exercise rights in, or to have access to or use of, computer information under an agreement to which this title applies. A licensor is not a licensee with respect to rights reserved to it under the agreement. “Licensor” means a person obligated by agreement to transfer or create rights in, or to give access to or use of, computer information or informational rights in it under an agreement to which this title applies. Between the provider of access and a provider of the informational content to be accessed, the provider of content is the licensor. In an exchange of information or informational rights, each party is a licensor with respect to the information, informational rights, or access it gives. “Mass–market license” means a standard form used in a mass–market transaction. “Mass–market transaction” means a transaction that is: A consumer contract; or Any other transaction with an end–user licensee if: The transaction is for information or informational rights directed to the general public as a whole, including consumers, under substantially the same terms for the same information; The licensee acquires the information or informational rights in a retail transaction under terms consistent with an ordinary transaction in a retail market; and The transaction is not: A contract for redistribution or for public performance or public display of a copyrighted work; A transaction in which the information is customized or otherwise specially prepared by the licensor for the licensee, other than minor customization using a capability of the information intended for that purpose; A site license; or An access contract. “Merchant” means a person: That deals in information or informational rights of the kind involved in the transaction; That by the person’s occupation holds itself out as having knowledge or skill peculiar to the relevant aspect of the business practices or information involved in the transaction; or To which the knowledge or skill peculiar to the practices or information involved in the transaction may be attributed by the person’s employment of an agent or broker or other intermediary that by its occupation holds itself out as having the knowledge or skill. “Nonexclusive license” means a license that does not preclude the licensor from transferring to other licensees the same information, informational rights, or contractual rights within the same scope. The term includes a consignment of a copy. “Notice” of a fact means knowledge of the fact, receipt of notification of the fact, or reason to know the fact exists. “Notify”, or “give notice”, means to take such steps as may be reasonably required to inform the other person in the ordinary course, whether or not the other person actually comes to know of it. “Party” means a person that engages in a transaction or makes an agreement under this title. “Person” means an individual, corporation, business trust, statutory trust, estate, trust, partnership, limited liability company, association, joint venture, governmental subdivision, instrumentality, or agency, public corporation, or any other legal or commercial entity. “Published informational content” means informational content prepared for or made available to recipients generally, or to a class of recipients, in substantially the same form. The term does not include informational content that is: Customized for a particular recipient by one or more individuals acting as or on behalf of the licensor, using judgment or expertise; or Provided in a special relationship of reliance between the provider and the recipient. “Receipt” means: With respect to a copy, taking delivery; or With respect to a notice: Coming to a person’s attention; or Being delivered to and available at a location or system designated by agreement for that purpose or, in the absence of an agreed location or system: Being delivered at the person’s residence, or the person’s place of business through which the contract was made, or at any other place held out by the person as a place for receipt of communications of the kind; or In the case of an electronic notice, coming into existence in an information processing system or at an address in that system in a form capable of being processed by or perceived from a system of that type by a recipient, if the recipient uses, or otherwise has designated or holds out, that place or system for receipt of notices of the kind to be given and the sender does not know that the notice cannot be accessed from that place. “Receive” means to take receipt. “Record” means information that is inscribed on a tangible medium or that is stored in an electronic or other medium and is retrievable in perceivable form. “Release” means an agreement by a party not to object to, or exercise any rights or pursue any remedies to limit, the use of information or informational rights which agreement does not require an affirmative act by the party to enable or support the other party’s use of the information or informational rights. The term includes a waiver of informational rights. “Return”, with respect to a record containing contractual terms that were rejected, refers only to the computer information and means: In the case of a licensee that rejects a record regarding a single information product transferred for a single contract fee, a right to reimbursement of the contract fee paid from the person to which it was paid or from another person that offers to reimburse that fee, on: Submission of proof of purchase; and Proper redelivery of the computer information and all copies within a reasonable time after initial delivery of the information to the licensee; In the case of a licensee that rejects a record regarding an information product provided as part of multiple information products integrated into and transferred as a bundled whole but retaining their separate identity: A right to reimbursement of any portion of the aggregate contract fee identified by the licensor in the initial transaction as charged to the licensee for all bundled information products which was actually paid, on: Rejection of the record before or during the initial use of the bundled product; Proper redelivery of all computer information products in the bundled whole and all copies of them within a reasonable time after initial delivery of the information to the licensee; and Submission of proof of purchase; or A right to reimbursement of any separate contract fee identified by the licensor in the initial transaction as charged to the licensee for the separate information product to which the rejected record applies, on: Submission of proof of purchase; and Proper redelivery of that computer information product and all copies within a reasonable time after initial delivery of the information to the licensee; or In the case of a licensor that rejects a record proposed by the licensee, a right to proper redelivery of the computer information and all copies from the licensee, to stop delivery or access to the information by the licensee, and to reimbursement from the licensee of amounts paid by the licensor with respect to the rejected record, on reimbursement to the licensee of contract fees that it paid with respect to the rejected record, subject to recoupment and setoff. “Scope”, with respect to terms of a license, means: The licensed copies, information, or informational rights involved; The use or access authorized, prohibited, or controlled; The geographic area, market, or location; or The duration of the license. “Seasonable”, with respect to an act, means taken within the time agreed or, if no time is agreed, within a reasonable time. “Send” means, with any costs provided for and properly addressed or directed as reasonable under the circumstances or as otherwise agreed, to deposit a record in the mail or with a commercially reasonable carrier, to deliver a record for transmission to or re–creation in another location or information processing system, or to take the steps necessary to initiate transmission to or re–creation of a record in another location or information processing system. In addition, with respect to an electronic message, the message must be in a form capable of being processed by or perceived from a system of the type the recipient uses or otherwise has designated or held out as a place for the receipt of communications of the kind sent. Receipt within the time in which it would have arrived if properly sent, has the effect of a proper sending. “Standard form” means a record or a group of related records containing terms prepared for repeated use in transactions and so used in a transaction in which there was no negotiated change of terms by individuals except to set the price, quantity, method of payment, selection among standard options, or time or method of delivery. “State” means a state of the United States, the District of Columbia, Puerto Rico, the United States Virgin Islands, or any territory or insular possession subject to the jurisdiction of the United States. “Term”, with respect to an agreement, means that portion of the agreement which relates to a particular matter. “Termination” means the ending of a contract by a party pursuant to a power created by agreement or law otherwise than because of breach of contract. “Transfer”: With respect to a contractual interest, includes an assignment of the contract, but does not include an agreement merely to perform a contractual obligation or to exercise contractual rights through a delegate or sublicensee; and With respect to computer information, includes a sale, license, or lease of a copy of the computer information and a license or assignment of informational rights in computer information. “Usage of trade” means any practice or method of dealing that has such regularity of observance in a place, vocation, or trade as to justify an expectation that it will be observed with respect to the transaction in question. The following definitions in this article apply to this title: “Burden of establishing” § 1-201. “Document of title” § 1-201. “Financial asset” § 8-102(a)(9). “Funds transfer” § 4A-104. “Identification” to the contract § 2-501. “Instrument” § 9-102(a)(47). “Investment property” § 9-102(a)(49). “Item” § 4-104. “Letter of credit” § 5-102. “Payment order” § 4A-103. “Sale” § 2-106.

This title applies to computer information transactions. Except as otherwise provided in subsection (d) of this section and § 22-104 of this subtitle, if a computer information transaction includes subject matter other than computer information, the following rules apply: If a transaction includes computer information and goods, this title applies to the part of the transaction involving computer information, informational rights in it, and creation or modification of it. However, if a copy of a computer program is contained in and sold or leased as part of goods, this title applies to the copy and the computer program only if: The goods are a computer or computer peripheral; or Giving the buyer or lessee of the goods access to or use of the program is ordinarily a material purpose of transactions in goods of the type sold or leased. Subject to subsection (d)(3)(A) of this section, if a transaction includes an agreement for creating or for obtaining rights to create computer information and a motion picture, this title does not apply to the agreement if the dominant character of the agreement is for creating or obtaining rights to create a motion picture. In all other such agreements, this title does not apply to the part of the agreement that involves a motion picture excluded under subsection (d)(3) of this section, but does apply to the computer information. In all other cases, this title applies to the entire transaction if the computer information and informational rights, or access to them, is the primary subject matter, but otherwise applies only to the part of the transaction involving computer information, informational rights in it, and creation or modification of it. To the extent of a conflict between this title and Title 9 of this article, Title 9 governs. This title does not apply to: A financial services transaction; An insurance services transaction; An agreement to create, perform or perform in, include information in, acquire, use, distribute, modify, reproduce, have access to, adapt, make available, transmit, license, or display: A motion picture or audio or visual programming, other than in (i) a mass-market transaction or (ii) a submission of an idea or information or release of informational rights that may result in making a motion picture or a similar information product; or A sound recording, musical work, or phonorecord as defined or used in Title 17 of the United States Code as of July 1, 1999, or an enhanced sound recording; A compulsory license; A contract of employment of an individual, other than an individual hired as an independent contractor to create or modify computer information, unless such independent contractor is a freelancer in the news reporting industry as that term is commonly understood in that industry; A contract that does not require that information be furnished as computer information or in which under the agreement the form of the information as computer information is otherwise insignificant with respect to the primary subject matter of the part of the transaction pertaining to the information; or Subject matter within the scope of Title 3, 4, 4A, 5, 6, 7, or 8 of this article. As used in subsection (d)(3)(B) of this section, “enhanced sound recording” means a separately identifiable product or service the dominant character of which consists of recorded sounds but which includes (i) statements or instructions whose purpose is to allow or control the perception, reproduction, or communication of those sounds or (ii) other information so long as recorded sounds constitute the dominant character of the product or service despite the inclusion of the other information. As used in this section, “motion picture” means “motion picture” as defined in Title 17 of the United States Code as of July 1, 1999, or a separately identifiable product or service the dominant character of which consists of a linear motion picture, but which includes (i) statements or instructions whose purpose is to allow or control the perception, reproduction, or communication of the motion picture or (ii) other information so long as the motion picture constitutes the dominant character of the product or service despite the inclusion of the other information. As used in this section, “audio or visual programming” means audio or visual programming that is provided by broadcast, satellite, or cable as defined in the Federal Communications Act of 1934 and related regulations as they existed on July 1, 1999, or by similar methods of delivery.

The parties may agree that this title, including contract-formation rules, governs the transaction, in whole or part, or that other law governs the transaction and this title does not apply, if a material part of the subject matter to which the agreement applies is computer information or informational rights in it that are within the scope of this title, or is subject matter within this title under § 22-103(b) of this subtitle, or is subject matter excluded by § 22-103(d)(1), (2), or (3) of this subtitle. However, any agreement to do so is subject to the following rules: An agreement that this title governs a transaction does not alter the applicability of any statute, rule, regulation, or procedure that may not be varied by agreement of the parties or that may be varied only in a manner specified by the statute, rule, regulation, or procedure, including a consumer protection statute or regulation. In addition, in a mass-market transaction, the agreement does not alter the applicability of a law applicable to a copy of information in printed form. An agreement that this title does not govern a transaction: Does not alter the applicability of § 22-214 of this title or the limitations of § 22-816 of this title if the parties have agreed to permit the use of electronic self-help; and In a mass-market transaction, does not alter the applicability under this title of the doctrine of unconscionability or fundamental public policy or the obligation of good faith. In a mass-market transaction, any term under this section which changes the extent to which this title governs the transaction must be conspicuous. A copy of a computer program contained in and sold or leased as part of goods and which is excluded from this title by § 22-103(b)(1) of this subtitle cannot provide the basis for an agreement under this section that this title governs the transaction.

A provision of this title which is preempted by federal law is unenforceable to the extent of the preemption. A contract term is unenforceable to the extent that it would vary a statute, rule, regulation, or procedure that may not be varied by agreement under the federal copyright law, including provisions of the federal copyright law related to fair use. If a term of a contract violates a fundamental public policy, the court may refuse to enforce the contract, enforce the remainder of the contract without the impermissible term, or limit the application of the impermissible term so as to avoid a result contrary to public policy, in each case to the extent that the interest in enforcement is clearly outweighed by a public policy against enforcement of the term. Except as otherwise provided in subsection (d) of this section, if this title or a term of a contract under this title conflicts with a consumer protection statute or regulation, including Title 13 of this article, the consumer protection statute or regulation governs. If a law of this State in effect on the effective date of this title applies to a transaction governed by this title, the following rules apply: A requirement that a term, waiver, notice, or disclaimer be in a writing is satisfied by a record. A requirement that a record, writing, or term be signed is satisfied by an authentication. A requirement that a term be conspicuous, or the like, is satisfied by a term that is conspicuous under this title. A requirement of consent or agreement to a term is satisfied by a manifestation of assent to the term in accordance with this title.

This title shall be liberally construed and applied to promote its underlying purposes and policies to: Support and facilitate the realization of the full potential of computer information transactions; Clarify the law governing computer information transactions; Enable expanding commercial practice in computer information transactions by commercial usage and agreement of the parties; Promote uniformity of the law with respect to the subject matter of this title among states that enact it; and Permit the continued expansion of commercial practices in the excluded transactions through custom, usage, and agreement of the parties. Except as otherwise provided in § 22-113(a) of this subtitle, the use of mandatory language or the absence of a phrase such as “unless otherwise agreed” in a provision of this title does not preclude the parties from varying the effect of the provision by agreement. The fact that a provision of this title imposes a condition for a result does not by itself mean that the absence of that condition yields a different result. To be enforceable, a term need not be conspicuous, negotiated, or expressly assented or agreed to, unless required by applicable law.

A record or authentication may not be denied legal effect or enforceability solely because it is in electronic form. This title does not require that a record or authentication be generated, stored, sent, received, or otherwise processed by electronic means or in electronic form. In any transaction, a person may establish requirements regarding the type of authentication or record acceptable to it. A person that uses an electronic agent that it has selected for making an authentication, performance, or agreement, including manifestation of assent, is bound by the operations of the electronic agent, even if no individual was aware of or reviewed the agent’s operations or the results of the operations.

Authentication may be proven in any manner, including a showing that a party made use of information or access that could have been available only if it engaged in conduct or operations that authenticated the record or term. Compliance with a commercially reasonable attribution procedure agreed to or adopted by the parties or established by law for authenticating a record authenticates the record as a matter of law.

The parties in their agreement may choose the applicable law. In the absence of an enforceable agreement on choice of law, the following rules determine which jurisdiction’s law governs in all respects for purposes of contract law: An access contract or a contract providing for electronic delivery of a copy is governed by the law of the jurisdiction in which the licensor was located when the agreement was entered into. A mass market transaction is governed by the law of Maryland. In all other cases, the contract is governed by the law of the jurisdiction having the most significant relationship to the transaction. In cases governed by subsection (b) of this section, if the jurisdiction whose law governs is outside the United States, the law of that jurisdiction governs only if it provides substantially similar protections and rights to a party not located in that jurisdiction as are provided under this title. Otherwise, the law of the state that has the most significant relationship to the transaction governs. For purposes of this section, a party is located at its place of business if it has one place of business, at its chief executive office if it has more than one place of business, or at its place of incorporation or primary registration if it does not have a physical place of business. Otherwise, a party is located at its primary residence.

The parties in their agreement may choose an exclusive judicial forum unless the choice is unreasonable or unjust. In a mass market transaction, the enforceability of a choice of forum term shall be decided by a Maryland court. A judicial forum specified in an agreement is not exclusive unless the agreement expressly so provides. Notwithstanding the provisions of this section or a contrary term in an agreement, the parties to a computer information transaction that is for the creation of computer information may, by mutual consent, choose an alternative dispute resolution mechanism, including mediation, arbitration, or other nonjudicial dispute resolution process, as the means for resolving a dispute under the agreement.

If a court as a matter of law finds a contract or a term thereof to have been unconscionable at the time it was made, the court may refuse to enforce the contract, enforce the remainder of the contract without the unconscionable term, or limit the application of the unconscionable term so as to avoid an unconscionable result. If it is claimed or appears to the court that a contract or term thereof may be unconscionable, the parties must be afforded a reasonable opportunity to present evidence as to its commercial setting, purpose, and effect to aid the court in making the determination.

A person manifests assent to a record or term if the person, acting with knowledge of, or after having an opportunity to review the record or term or a copy of it: Authenticates the record or term with intent to adopt or accept it; or Intentionally engages in conduct or makes statements with reason to know that the other party or its electronic agent may infer from the conduct or statement that the person assents to the record or term. An electronic agent manifests assent to a record or term if, after having an opportunity to review it, the electronic agent: Authenticates the record or term; or Engages in operations that in the circumstances indicate acceptance of the record or term. If this title or other law requires assent to a specific term, a manifestation of assent must relate specifically to the term. Conduct or operations manifesting assent may be proved in any manner, including a showing that a person or an electronic agent obtained or used the information or informational rights and that a procedure existed by which a person or an electronic agent must have engaged in the conduct or operations in order to do so. Proof of compliance with subsection (a)(2) of this section is sufficient if there is conduct that assents and subsequent conduct that reaffirms assent by electronic means. With respect to an opportunity to review, the following rules apply: A person has an opportunity to review a record or term only if it is made available in a manner that ought to call it to the attention of a reasonable person and permit review. An electronic agent has an opportunity to review a record or term only if it is made available in manner that would enable a reasonably configured electronic agent to react to the record or term. If a record or term is available for review only after a person becomes obligated to pay or begins its performance, the person has an opportunity to review only if it has a right to a return if it rejects the record. However, a right to a return is not required if: The record proposes a modification of contract or provides particulars of performance under § 22-305 of this title; or The primary performance is other than delivery or acceptance of a copy, the agreement is not a mass-market transaction, and the parties at the time of contracting had reason to know that a record or term would be presented after performance, use, or access to the information began. The right to a return under paragraph (3) of this subsection may arise by law or by agreement. The effect of provisions of this section may be modified by an agreement setting out standards applicable to future transactions between the parties.

The effect of any provision of this title, including an allocation of risk or imposition of a burden, may be varied by agreement of the parties. However, the following rules apply: Obligations of good faith, diligence, reasonableness, and care imposed by this title may not be disclaimed by agreement, but the parties by agreement may determine the standards by which the performance of the obligation is to be measured if the standards are not manifestly unreasonable. The limitations on enforceability imposed by unconscionability under § 22-111 of this subtitle and fundamental public policy under § 22-105(b) of this subtitle may not be varied by agreement. Limitations on enforceability of, or agreement to, a contract, term, or right expressly stated in the sections of this title listed in the following subparagraphs may not be varied by agreement except to the extent provided in each section: The limitations on agreed choice of law in § 22-109(a); The limitations on agreed choice of forum in § 22-110; The requirements for manifesting assent and opportunity for review in § 22-112; The limitations on enforceability in § 22-201; The limitations on a mass-market license in § 22-209; The consumer defense arising from an electronic error in § 22-214; The requirements for an enforceable term in §§ 22-303(b), 22-307(g), 22-406(b) and (c), and 22-804(a); The limitations on a financier in §§ 22-507 through 22-511; The restrictions on altering the period of limitations in § 22-805(a) and (b); and The limitations on self-help repossession in §§ 22-815(b) and 22-816. Any usage of trade of which the parties are or should be aware and any course of dealing or course of performance between the parties are relevant to determining the existence or meaning of an agreement.

Unless displaced by this title, principles of law and equity, including the law merchant and the common law of this State relative to capacity to contract, principal and agent, estoppel, fraud, misrepresentation, duress, coercion, mistake, and other validating or invalidating cause, supplement this title. Among the laws supplementing and not displaced by this title are trade secret laws and unfair competition laws. Every contract or duty within the scope of this title imposes an obligation of good faith in its performance or enforcement. Whether a term is conspicuous or is unenforceable under § 22–105(a) or (b) or § 22–111 of this subtitle or § 22–209(a) of this title and whether an attribution procedure is commercially reasonable or effective under § 22–108 of this subtitle or § 22–212 or § 22–213 of this title are questions to be determined by the court. Whether an agreement has legal consequences is determined by this title. Whenever this title requires any action to be taken within a reasonable time, the following rules apply: What is a reasonable time for taking the action depends on the nature, purpose, and circumstances of the action. Any time that is not manifestly unreasonable may be fixed by agreement. A person has reason to know a fact if the person has knowledge of the fact or, from all the facts and circumstances known to the person without investigation, the person should be aware that the fact exists.