Leonardo Reyes K. – Associate
Over the last few years, the use of mobile applications and web pages for the development of commercial activities has become quite strong. Similarly, due to the Covid-19 pandemic, electronic commerce, also known as E-Commerce, has taken giant steps and has become one of the most important means of commerce in the national and global market.
As a result of these commercial relationships, different obligations and rights arise between companies that offer services and/or market products with their customers. That said, it is necessary to have Terms and Conditions and Privacy Policies to establish the scope of the service, the objective, the limitations and to delimit the company from any type of responsibility for the services provided or the objects marketed.
Regarding the Terms and Conditions, we can define them as an agreement of wills between the company that elaborates them and the client and/or user, through which the rights and obligations that both parties will have, as well as the particularities about the organization, prices and mechanisms of purchase, reception, shipping, return, cancellation and other particularities that are aimed at the adequate provision of the service and/or the sale of a product. This contract could be understood as an adhesion contract, which is drawn up by the company and the client or user simply adheres or not.
Although the Terms and Conditions are prepared based on each service or product that is required to be commercialized, they must contain at least five essential points, which are detailed below:
– Detailed description of the product or service offered: At this point it is important to concisely establish what refers to the product or service that is offered. The characteristics of the product, geographical delimitation for the delivery of the product or where the service is provided, terms and forms of delivery, among others, must be established.
– Rights of the parties: It is important to establish the rights of the parties, in order to avoid future disputes with users or customers. Although it is clear that customers have certain rights, such as to obtain the product or service, it is important to clarify different aspects, such as the right to changes or returns if applicable.
– Responsibilities: It is possibly the most relevant point of the Terms and Conditions, since here the limit of the responsibilities of the company will be established and possible controversies that may arise will be avoided. It is important to clarify that possible responsibilities may arise due to third parties, so it is necessary to disclaim such responsibility in writing.
– Means of dispute resolution: It is important to establish the means of dispute resolution, since the initiation of a process can be detrimental to the company. Many of the companies that work digitally are based abroad, so it is beneficial to establish arbitration based in their country of origin as a means of conflict resolution.
– Applicable law: It is relevant to establish the regulations that will be applied to the controversy that may arise, since this will give the company greater access to justice.
Regarding the Privacy Policies, it is the document through which the way and the reason for which the data of the users or clients is indicated and established, retained and processed. This has the function of informing users that the website or mobile application collects data during their visit and that the data collected will be used by the company.
Although Bolivia at the moment does not have a specific regulation regarding the protection of personal data, the State Constitution protects it in a tacit way, establishing the Privacy Protection Action. However, even in the absence of an express rule, it is extremely important to have good privacy policies, in order to avoid future inconveniences as a result of data manipulation.
Like the Terms and Conditions, the Privacy Policies will be drawn up according to the operation and development of each company. However, it should contain at least the following points:
– Identify what information will be collected: In this point, you must specify what data is collected, which may be the email, name, age, among others.
– Establish the reasons for the data collection: The reasons for the use of the data must be established, that is, what they will be used for. For example, sending offers.
– Indicate how the data will be used: The way in which the data will be manipulated must be established, that is, in what way it will be used.
– The possibility of modifying the policy in the future: This point is extremely important, since it gives the freedom to modify the policy at any time and the user must accept it in order to use the services.
– Disclaimer of responsibility for data manipulation by external links: There is the possibility that external links are part of web pages, such as advertisements. It is important to disclaim responsibility for what external pages can do with the data, since the company does not manipulate them or have knowledge of what they will be used for.
– Identify the means used to protect data: To establish peace of mind for users and demonstrate that their data is not manipulated in ways other than their consent, it is necessary to establish the means used to protect data.
Based on all the above, it is pertinent to establish that the best way to be able to disclaim responsibilities and avoid future conflicts with users or clients is to have Terms and Conditions and Privacy Policies that protect the company and establish each of the points that are required based on the area in which it operates.