5 good habits to digitize your activity
Corinne Thiérache and Carole Bui
These days, digitalization is essential for any company wishing to offer its products and/or services to the public. The current health crisis stimulates an increasing digitalization. However, it requires a legal support.
Rule # 1: You shall contractually supervise the IT developments of a third party
The use of an IT service provider for the digitalization of its products and services requires special attention on several points.
In particular, you shall:
Define specifications : It must specify the general context of the project of creation of the Internet site and/or the application as well as the technical specifications of the considered IT developments, in order to answer the exact needs of the customer;
Establish a schedule : Mandatory dates can be set, and their non-respect will be sanctioned by the application of financial penalties to the service provider ;
Set up a steering committee : Periodic validation of the services by the client allows the latter to check the conformity of the services with the specifications, and if necessary, to request corrections and report on the progress of the project;
Supervise the validation of the IT developments : The reception of a deliverable from the service provider, whether it is a hardware, a software solution or a study document, must be organized. The scope and breakdown of the acceptance, as well as the production of an acceptance report with potential reservations, must be specified;
Decide about the maintenance issue : A choice with different implications has to be made between maintenance carried out by the main service provider, a third party or your care ;
Pay attention to the limitation of liability clause : The IT service provider tries by this means to limit his responsibility by introducing a ceiling for compensation often equal to the amount of the sums paid by the customer. In this context, it is important to negotiate a liability arrangement that is proportionate to the economic data of the project in question. The clause must, however, represent sufficient financial pressure to induce the service provider to satisfy its customer ;
Include a confidentiality clause to protect your innovations : The scope of such a contractual clause is essential and must be negotiated, in particular what is covered by confidentiality, the duration of the clause. Moreover, this clause shall ensure that there is no breach of confidentiality in the event of subcontracting.
Rule # 2: You shall check the assignment of the intellectual property rights of the digitalization project to your benefit
An e-commerce website implies the registration of a domain name (or several), as well as the registration of an available trademark which geographical protection will depend on the nature of the project.
Whether you resort to a third party or to an employee to help you to digitize your activity and/or to create/improve your visual identity within the framework of this digitalization, it is advisable not to forget to make sure of the assignment to your benefit of the intellectual property rights protecting the resulting creations.
Contrary to preconceived ideas, the situations in French law in which the assignment of intellectual property rights is automatic without any formality are quite rare and in reality only concern software and collective works created within the framework of an employment contract. In most cases, it is necessary to expressly provide for the assignment of the property rights of the creations, which must comply with a strict formalism.
Rule # 3: You shall anticipate the personal data collection and the compliance of processing operations
The General Data Protection Regulation (GDPR) imposes numerous obligations on the website operator that collects and processes personal data via cookies and/or online forms.
Rule # 4: You shall fulfil the e-commerce’s duties
E-commerce is governed by a certain number of restrictive rules that must be taken into account as soon as the design of sites or applications is completed (legal notices allowing the identification of the website operator, information specific to distance contracts, purchasing and browsing processes adapted to the delivery of this information, etc.).
Within the framework of relations between professionals and consumers (B to C), professionals must provide specific information, in particular regarding possible delivery restrictions, the conditions for implementing the right of withdrawal and the costs relating to the exercise of this right, which are most often set out in General Terms and Conditions of Sale.
Rule # 5: You shall preserve your e-reputation
It is recommended that you monitor the name of your company or site on search engines, especially Google. This monitoring allows you to stay informed of what is said about your company, your products, your services, your management style, or your customer service.
It is advisable that you respond quickly to negative reviews before they become problematic and too visible. Also, you should request the removal of false reviews that harm your e-reputation if you can do so.
The teams of the Intellectual Property, Digital and Technology Law, and Data Privacy departments are at your disposal to discuss your digitalization projects and provide useful advice at all stages and on all aspects of these projects.
Thanks to Morgane Sapin, Student lawyer.