(c) a service supplier of a Party as defined in Article 8.3.1(f) (Definitions),
but does not include a "financial service supplier" as defined in Article 8.3.1(m) (Definitions) or a financial institution;
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;
financial institution means any financial intermediary or other enterprise that is authorised to do business and regulated or supervised as a financial institution under the laws and regulations of the Party in whose territory it is located;
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.
9.2. Scope
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, this Chapter may apply to a measure that is also subject to Chapter 7 (Investment) or Chapter 8 (Services).
5. The obligations contained in Article 9.10 (Cross-Border Transfer of Information by Electronic Means, Article 9.11 (Location of Computing Facilities) and Article 9.13 (Source Code) shall not apply to aspects of a Party's measures to the extent that:
(a) they are not within the scope of the Party's specific commitments under Article 8.7 (Specific Commitments);
(b) any terms, limitations and conditions on market access under Article 8.7 (Specific Commitments) apply;
(c) any conditions and qualifications on national treatment under Article 8.7 (Specific Commitments) apply;
(d) any exceptions in Chapter 8 (Services) apply;
(e) any limitations made in accordance with Article 7.10 (Limitations) apply; or
(f) any exceptions in Chapter 7 (investment) apply.
9.3. 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.
9.4. Domestic Electronic Transactions Framework
1. Each Party shall maintain a legal framework governing electronic transactions consistent with the principles of the UNCITRAL Model Law on Electronic Commerce 1996 or the United Nations Convention on the Use of Electronic Communications in International Contracts, done at New York, November 23, 2005.
2. Each Party shall endeavour to:
(a) avoid any unnecessary regulatory burden on electronic transactions; and
(b) facilitate input by interested persons in the development of its legal framework for electronic transactions.
9.5. Electronic Authentication and Electronic Signatures
1. Except in circumstances otherwise provided for under its laws and regulations, a Party shall not deny the legal validity of a signature solely on the basis that the signature is in electronic form.
2. No Party shall adopt or maintain measures for electronic authentication that would:
(a) prohibit parties to an electronic transaction from mutually determining the appropriate authentication methods for that transaction; or
(b) prevent parties to an electronic transaction from having the opportunity to establish before judicial or administrative authorities that their transaction complies with any legal requirements with respect to authentication.
3. Notwithstanding paragraph 2, a Party may require that, for a particular category of transactions, the method of authentication meets certain performance standards or is certified by an authority accredited in accordance with its laws and regulations.
4. The Parties shall encourage the use of interoperable electronic authentication.
9.6. Online Consumer Protection
1. The Parties recognise the importance of adopting and maintaining transparent and effective measures to protect consumers from misleading and deceptive conduct as referred to in Article 11.9.2 (Consumer Protection) when they engage in electronic commerce.
2. Each Party shall adopt or maintain consumer protection laws or regulations to proscribe misleading and deceptive conduct that causes harm or potential harm to consumers engaged in online commercial activities.
3. Each Party shall, where possible, provide protection for consumers using electronic commerce that is at least equivalent to that provided for consumers of other forms of commerce under its relevant laws, regulations and policies. (1)
4. The Parties recognise the importance of cooperation between their respective national consumer protection agencies or other relevant bodies on activities related to cross-border electronic commerce in order to enhance consumer welfare. To this end, the Parties affirm that the cooperation sought pursuant to Article 11.9.5 (Consumer Protection) includes cooperation with respect to online commercial activities.
5. The Parties recognise the benefits of mechanisms, including alternative dispute resolution, to facilitate the resolution of claims over electronic commerce transactions.
9.7. Personal Information Protection
1. The Parties recognise the economic and social benefits of protecting the personal information of users of electronic commerce and the contribution that this makes to enhancing consumer confidence in electronic commerce.
2. To this end, each Party shall adopt or maintain a legal framework that provides for the protection of the personal information of the users of electronic commerce. To the extent possible, the legal framework shall take into account principles and guidelines of relevant international bodies such as APEC.
3. Each Party shall:
(a) afford protection, through the legal framework referred to in paragraph 2, to the personal information of users of the other Party on a non-discriminatory basis; and
(b) adopt non-discriminatory practices in protecting users of electronic commerce from personal information protection violations occurring within its jurisdiction.
4. Each Party shall publish information on the personal information protections it provides to users of electronic commerce, including how:
(a) individuals can pursue remedies; and
(b) business can comply with any legal requirements.
5. Recognising that the Parties may take different legal approaches to protecting personal information, each Party shall pursue the development of mechanisms to promote compatibility between these different regimes. These mechanisms may include the recognition of regulatory outcomes, whether accorded autonomously or by mutual arrangement, broader international frameworks, or where practicable, appropriate recognition of comparable protection afforded by their respective legal frameworks, national trustmark or certification frameworks, or other avenues of transfer of personal information between the Parties.
6. To this end, the Parties shall endeavour to exchange information on any such mechanisms applied in their jurisdictions and explore ways to extend these or other suitable arrangements to promote compatibility between them.
9.8. Paperless Trading
1. Each Party shall make publicly available, which may include through a process prescribed by that Party, electronic versions of all existing publicly available versions of trade administration documents.
2. Each Party shall accept the electronic versions of trade administration documents as the legal equivalent of paper documents except where:
(a) there is a domestic or international legal requirement to the contrary; or
(b) doing so would reduce the effectiveness of the trade administration process.
3. The Parties shall cooperate bilaterally and in international forums to enhance acceptance of electronic versions of trade administration documents.
4. In developing initiatives which provide for the use of paperless trading, each Party shall endeavour to take into account the methods agreed by international organisations.
9.9. Principles on Access to and Use of the Internet for Electronic Commerce
Subject to applicable policies, laws and regulations, the Parties recognise the benefits of consumers in their territories having the ability to:
(a) access and use services and applications of a consumer's choice available on the Internet, subject to reasonable network management; (2)
(b) connect the end-user devices of a consumerâs choice to the Internet, provided that such devices do not harm the network; and
(c) access information on the network management practices of a consumer's Internet access service supplier.
9.10. Cross-Border Transfer of Information by Electronic Means
1. The Parties recognise that each Party may have its own regulatory requirements concerning the transfer of information by electronic means.
2. Each Party shall allow the cross-border transfer of information by electronic means, including personal information, when this activity is for the conduct of the business of a covered person.
3. Nothing in this Article shall prevent a Party from adopting or maintaining measures inconsistent with paragraph 2 to achieve a legitimate public policy objective, provided that the measure is not applied in a manner which would constitute a means of arbitrary or unjustifiable discrimination or a disguised restriction on trade.
9.11. Location of Computing Facilities
1. The Parties recognise that each Party may have its own regulatory requirements regarding the use of computing facilities, including requirements that seek to ensure the security and confidentiality of communications.
2. No Party shall require a covered person to use or locate computing facilities in that Party's territory as a condition for conducting business in that territory.
3. Nothing in this Article shall prevent a Party from adopting or maintaining measures inconsistent with paragraph 2 to achieve a legitimate public policy objective, provided that the measure is not applied in a manner which would constitute a means of arbitrary or unjustifiable discrimination or a disguised restriction on trade.
9.12. Unsolicited Commercial Electronic Messages
1. Each Party shall adopt or maintain measures regarding unsolicited commercial electronic messages that:
(a) require suppliers of unsolicited commercial electronic messages to facilitate the ability of recipients to prevent ongoing reception of those messages;
(b) require the consent, as specified according to the laws and regulations of each Party, of recipients to receive commercial electronic messages; or
(c) otherwise provide for the minimisation of unsolicited commercial electronic messages.
2. Each Party shall provide recourse against suppliers of unsolicited commercial electronic messages that do not comply with the measures adopted or maintained pursuant to paragraph 1.
3. The Parties shall endeavour to cooperate in appropriate cases of mutual concern regarding the regulation of unsolicited commercial electronic messages.
9.13. Source Code
1. No Party shall require the transfer of, or access to, source code of software owned by a person of another Party, as a condition for the import, distribution, sale or use of such software, or of products containing such software, in its territory.
2. For the purposes of this Article, software subject to paragraph 1 is limited to mass- market software or products containing such software and does not include software used for critical infrastructure.
3. Nothing in this Article shall preclude:
(a) the inclusion or implementation of terms and conditions related to the Pp. provision of source code in commercially negotiated contracts; or
(b) a Party from requiring the modification of source code of software necessary for that software to comply with laws or regulations which are not inconsistent with this Agreement.
4. This Article shall not be construed to affect requirements that relate to patent applications or granted patents, including any orders made by a judicial authority in relation to patent disputes, subject to safeguards against unauthorised disclosure under the law or practice of a Party.
9.14. Logistics
1. The Parties recognise the importance of efficient cross border logistics which would help lower the cost and improve the speed and reliability of supply chains.
2. The Parties shall endeavour to share best practices in the logistics sector.
9.15. E-Invoicing
1. The Parties recognise the importance of an e-invoicing system which would help improve the speed and reliability of electronic commerce transactions.
2. The Parties shall endeavour to work towards mutually recognising the e-invoicing system of the other Party and to encourage interoperability between the Parties' e-invoicing systems.
3. The Parties shall endeavour to share best practices pertaining to e-invoicing systems.
9.16. Cooperation
Recognising the global nature of electronic commerce, the Parties shall endeavour to:
(a) work together to assist business and small and medium sized enterprises to overcome obstacles to its use including the sharing of best practices that would facilitate cross-border electronic commerce;
(b) exchange information and share experiences on regulations, policies, enforcement and compliance regarding electronic commerce, including:
(i) personal information protection;
(ii) online consumer protection, including means for consumer redress and building consumer confidence;
(iii) unsolicited commercial electronic messages;
(iv) security in electronic communications;
(v) authentication; and
(vi) e-government;
(c) exchange information and share views on consumer access to products and services offered online between the Parties;
(d) participate actively in regional and multilateral fora to promote the development of electronic commerce;
(e) work together in relevant international fora to promote the adoption of commitments by non-Parties not to impose customs duties on electronic transmissions; and
(f) encourage development by the private sector of methods of self-regulation that foster electronic commerce, including codes of conduct, model contracts, guidelines and enforcement mechanisms.
9.17. Cooperation on Cybersecurity Matters
The Parties recognise the importance of:
(a) building the capabilities of their national entities responsible for computer security incident response; and
(b) using existing collaboration mechanisms to cooperate to identify and mitigate malicious intrusions or dissemination of malicious code that affect the electronic networks of the Parties.
Chapter 10. GOVERNMENT PROCUREMENT
10.1. Establishment of a Single Market
1. The Parties agree to establish a single New Zealand/Singapore government procurement market, in order to maximise competitive opportunities for New Zealand/Singapore suppliers, and reduce costs of doing business for both government and industry.
2. This shall be achieved by the Parties:
(a) committing to implement the APEC Non-Binding Principles on Government Procurement telating to transparency, value for money, open and effective competition, fair dealing, accountability and due process, and non- discrimination;
(b) ensuring the opportunity exists for their suppliers to compete on an equal and transparent basis for government contracts;
(c) ensuring the non-application against their suppliers of preferential schemes and other forms of discrimination based on the place of origin of goods and services unless such schemes or forms of discrimination fall within Article 16.14 (Preferences Under Other Agreements);
(d) providing a mechanism for cooperation to work towards achieving the greatest possible consistency in contractual, technical and performance standards and specifications, and simplicity and consistency in the application of procurement policies, practices and procedures.
10.2. Scope
1. This Chapter applies to government procurement valued at above Special Drawing Rights (SDR) 50,000. The Parties shall consult and agree on a common basis for expressing this value threshold in their respective national currency equivalents as at the date of entry into force of this Agreement, and as at the date of reviews of the operation of this Agreement held in accordance with Article 15.4 (Review).
2. Government procurement of services is subject to a Party's schedule of commitments in Annex 8.1 (Services Commitments) and the terms, limitations, conditions or qualifications set out therein. (1)
3. Where government bodies require enterprises not covered under this Chapter to award contracts in accordance with particular requirements, Article 10.4 shall apply mutatis mutandis to such requirements.
10.3. Definitions
For the purposes of this Chapter:
designated bodies means bodies designated in each of the Parties to investigate complaints about non-compliance with this Chapter; they may include an agency or office responsible to a Party, or a position located within such agency or office. The designated body for Singapore is the Ministry of Finance and the designated body for New Zealand is the Ministry of Economic Development;
goods and services means but is not limited to goods alone, services alone or goods and related services. Computer software is defined as "goods" for this purpose. Related services means but is not limited to services provided in conjunction with the supply of goods or construction activities (such as architectural design, engineering, project design, project management and related consultancy services);
Ministers responsible for procurement means Ministers with portfolio responsibility for procurement policy where such direct responsibility exists. Otherwise the definition shall mean Ministers with portfolio responsibility for this Chapter;
procurement means but is not limited to purchase, hire, lease, rental, exchange and competitive tendering and contracting (outsourcing) arrangements;
government procurement means procurement by government bodies, that is departments and other bodies, including statutory authorities, which are controlled by the Parties and excludes procurement by any body corporate or other legal entity that has the power to contract, except where the Parties exercise their discretion to determine that this Chapter shall apply. In the case of regional or local governments or authorities, and in the case of procurement of services by non-governmental bodies in the exercise of powers delegated by central, regional or local governments or authorities, the Parties shall use their best endeavours to encourage wider application of this Chapter, consistent with good commercial ptactice, to procurement by all such governments, authorities and bodies;
New Zealand/Singapore suppliers means service suppliers (determined in accordance with Chapter 8 (Services)) or suppliers of goods originating in New Zealand or Singapore. Whether a good is originating in New Zealand or Singapore shall be determined in accordance with Chapter 3 (Rules of Origin);
value for money means the best available outcome for money spent in terms of the procuring agency's needs. The test of value for money requires relevant comparison of the whole of life costs and benefits relating directly to the procurement. "Whole of life costs and benefits"include fitness for purpose and other considerations of quality, performance, price, delivery, accessories and consumables, service support and disposal.
10.4. General Principles
Except as provided otherwise In this Chapter, the Parties shall:
(a) at all times conduct their procurement activities in accordance with the spirit and intent of this Chapter;
(b) ensure that all government bodies within their territories comply with this Chapter;
(c) provide to services, goods and suppliers of the other Party equal opportunity and treatment no less favourable than that accorded to their own domestic services, goods and suppliers;
(d) promote opportunities for their suppliers to compete for government business on the basis of value for money and avoid purchasing practices which discriminate or are otherwise biased against, or have the effect of denying equal access or opportunity to, their services, goods and suppliers, while conforming with any commitments of the Parties under international government procurement agreements;
(e) use value for money as the primary determinant in all procurement decisions; and
(f) achieve maximum practicable simplicity and consistency in the application of procurement policies, practices and procedures.
10.5. Valuation of Contracts
1. The following provisions shall apply in determining the value of contracts for the purposes of implementing this Chapter.
2. Valuation shall take into account all forms of remuneration, including any premiums, fees, commissions and interest receivable.
3. The selection of a valuation method by a government body shall not be made, nor shall any procurement requirement be divided, with the intention of avoiding the application of this Chapter.
4. In cases where an intended procurement specifies the need for option clauses, the basis for valuation shall be the total value of the maximum permissible procurement, inclusive of optional purchases.