Guidelines for ESRA Agreements

Electronic signatures and records enables online businesses to process agreements.

In the state of New York, the Electronic Signature and Records Act (ESRA) enables a business to accept an electronic signature from a company or individual. ESRA agreements are as legally binding as paper documents and can be used in interstate or foreign transactions following federal regulations such as the Electronic Signatures in Global and National Commerce Act (ESIGN). According to the New York State Office for Technology, an electronic facilitator has the responsibility of providing knowledge and encouragement in the use of electronic commerce through the use of electronic signatures and records.

Electronic Application

A business must use the software that best applies to its operational needs. A business needs to use an application that informs the signer of the intent of the signed document. A type of "warning" statement needs to inform signers that they are about to enter into a legally binding agreement. This statement should contain what types of personal information will be collected and the purpose for collecting such information.

Electronic Use

A business is not required to use an electronic signature or record to conduct operations. This is voluntary. Yet, if a business chooses to use this form of document signing and record keeping, then it should also accept paper documents from companies and individuals. A business should send out a hard copy of the document to the signer for the signer's records and to affirm an assent to the agreement. Certain documents cannot have an e-signature applied to them: wills, trusts, deeds and mortgages. Negotiable instruments are also excluded, unless they are electronically created, transferred or stored.

Electronic Signature

A business relying on electronic signatures for documents needs to allow the signer the opportunity to evaluate the document's full content before placing on an e-signature. The business should also take precautions so that it is impossible for any e-signature to be applied to the document without the signer's knowledge or being informed that a signature will be applied. A business should follow simple guidelines in requiring the signer to take part in giving assent to the signed document by using a button or tab on the electronic document. This process will demonstrate the signer's active choice in applying an e-signature.

Electronic Records

A business will create and accept electronic records that possess the electronic signature. The document format should contain similar signature elements as that of a paper document, such as a line where the signer's signature should go, a line for the signer's printed name, the date of when the signature is signed and (if applicable) the title of the signer and any other necessary information. Signers must also have their intent expressed as part of the record submitted with the signed document or stated as a certification statement linked to the signed record. When requiring evidence concerning the information, a business should record the date, time and signer's indication of intent.

References

• New York State Office for Technology: Electronic Signatures and Records Act (ESRA)
• New York State Office for Technology: Electronic Signatures and Records Act (ESRA) Guidelines