Step-By-Step SMS Compliance Checklist

The business SMS messaging ecosystem can easily seem overwhelming. Sending a message to the wrong person at the wrong time may not only affect your customer’s experience, but could also put your business at risk of legal action.

 

The business SMS messaging ecosystem can easily seem overwhelming. Sending a message to the wrong person at the wrong time may not only affect your customer’s experience, but could also put your business at risk of legal action. Buzzwords like opt-in, opt-out, P2P, A2P, TCPA, and the CTIA can make the idea of sending messages to customers that much more daunting. 

 

In this document, we provide you with guidance on applicable regulations.

 

1. Updating Your Terms of Service

After you have reviewed the relevant SMS laws and regulations, you should ensure your relationship with your text message subscribers is subject to a binding Terms of Service Agreement and Privacy Policy. We have drafted model agreements that you can use for your store.

 

Disclaimer: We make no representation and warranty regarding their accuracy and no attorney-client relationship is created by providing these agreements. You are encouraged to consult your own legal counsel familiar with the TCPA before finalizing and posting your consumer agreements. 

 

For Shopify Stores:

To update your Terms of Service, go to Settings Legal in your Shopify admin and scroll down to the Terms of Service section inside of your Shopify store setting section.  If you don’t have a Terms of Service yet, click on ‘Create from template’ and make sure to edit all of the [BRACKETED] sections appropriately.

Paste the following into your Terms of Service as an additional section. Be sure to properly edit the four bold [bracketed] terms below:

 

SMS/MMS MOBILE MESSAGE MARKETING PROGRAM TERMS AND CONDITIONS

 

"[COMPANY LEGAL NAME] (hereinafter, “We,” “Us,” “Our”) is offering a mobile messaging program (the “Program”), which you agree to use and participate in subject to these Mobile Messaging Terms and Conditions and Privacy Policy (the “Agreement”).  By opting in to or participating in any of our Programs, you accept and agree to these terms and conditions, including, without limitation, your agreement to resolve any disputes with us through binding, individual-only arbitration, as detailed in the “Dispute Resolution” section below.  This Agreement is limited to the Program and is not intended to modify other Terms and Conditions or Privacy Policy that may govern the relationship between you and Us in other contexts.

User Opt In: The Program allows Users to receive SMS/MMS mobile messages by affirmatively opting into the Program, such as through online or application-based enrollment forms. Regardless of the opt-in method you utilized to join the Program, you agree that this Agreement applies to your participation in the Program.  By participating in the Program, you agree to receive autodialed or prerecorded marketing mobile messages at the phone number associated with your opt-in, and you understand that consent is not required to make any purchase from Us. While you consent to receive messages sent using an autodialer, the foregoing shall not be interpreted to suggest or imply that any or all of Our mobile messages are sent using an automatic telephone dialing system (“ATDS” or “autodialer”).  Message and data rates may apply.

 

User Opt Out:  If you do not wish to continue participating in the Program or no longer agree to this Agreement, you agree to reply STOP, END, CANCEL, UNSUBSCRIBE, or QUIT to any mobile message from Us in order to opt out of the Program.  You may receive an additional mobile message confirming your decision to opt out. You understand and agree that the foregoing options are the only reasonable methods of opting out. You also understand and agree that any other method of opting out, including, but not limited to, texting words other than those set forth above or verbally requesting one of our employees to remove you from our list, is not a reasonable means of opting out.

 

Duty to Notify and Indemnify:  If at any time you intend to stop using the mobile telephone number that has been used to subscribe to the Program, including canceling your service plan or selling or transferring the phone number to another party, you agree that you will complete the User Opt Out process set forth above prior to ending your use of the mobile telephone number.  You understand and agree that your agreement to do so is a material part of these terms and conditions. You further agree that, if you discontinue the use of your mobile telephone number without notifying Us of such change, you agree that you will be responsible for all costs (including attorneys’ fees) and liabilities incurred by Us, or any party that assists in the delivery of the mobile messages, as a result of claims brought by individual(s) who are later assigned that mobile telephone number.  This duty and agreement shall survive any cancellation or termination of your agreement to participate in any of our Programs.

 

YOU AGREE THAT YOU SHALL INDEMNIFY, DEFEND, AND HOLD US HARMLESS FROM ANY CLAIM OR LIABILITY RESULTING FROM YOUR FAILURE TO NOTIFY US OF A CHANGE IN THE INFORMATION YOU HAVE PROVIDED, INCLUDING ANY CLAIM OR LIABILITY UNDER THE TELEPHONE CONSUMER PROTECTION ACT, 47 U.S.C. § 227, et seq., OR SIMILAR STATE AND FEDERAL LAWS, AND ANY REGULATIONS PROMULGATED THEREUNDER RESULTING FROM US ATTEMPTING TO CONTACT YOU AT THE MOBILE TELEPHONE NUMBER YOU PROVIDED.

 

Program Description: Without limiting the scope of the Program, users that opt into the Program can expect to receive messages concerning the marketing and sale of  [DESCRIBE COMPANY’S GOODS/SERVICE OFFERINGS – THIS SHOULD BE BROAD AND GENERAL TO ENCOMPASS ANY TYPE OF MESSAGE YOU MAY SEND. MESSAGES OUTSIDE OF THIS SCOPE MAY NOT BE ALLOWED UNDER THE TCPA].

 

Cost and Frequency: Message and data rates may apply. The Program involves recurring mobile messages, and additional mobile messages may be sent periodically based on your interaction with Us.

 

Support Instructions: For support regarding the Program, text “HELP” to the number you received messages from or email us at [COMPANY’S CUSTOMER SERVICE EMAIL ADDRESS].  Please note that the use of this email address is not an acceptable method of opting out of the program.  Opt outs must be submitted in accordance with the procedures set forth above.

 

MMS Disclosure: The Program will send SMS TMs (terminating messages) if your mobile device does not support MMS messaging.

 

Our Disclaimer of Warranty: The Program is offered on an "as-is" basis and may not be available in all areas at all times and may not continue to work in the event of product, software, coverage or other changes made by your wireless carrier. We will not be liable for any delays or failures in the receipt of any mobile messages connected with this Program. Delivery of mobile messages is subject to effective transmission from your wireless service provider/network operator and is outside of Our control. T-Mobile is not liable for delayed or undelivered mobile messages.

 

Participant Requirements:  You must have a wireless device of your own, capable of two-way messaging, be using a participating wireless carrier, and be a wireless service subscriber with text messaging service. Not all cellular phone providers carry the necessary service to participate. Check your phone capabilities for specific text messaging instructions.

 

Age Restriction:  You may not use or engage with the Platform if you are under thirteen (13) years of age.  If you use or engage with the Platform and are between the ages of thirteen (13) and eighteen (18) years of age, you must have your parent’s or legal guardian’s permission to do so.  By using or engaging with the Platform, you acknowledge and agree that you are not under the age of thirteen (13) years, are between the ages of thirteen (13) and eighteen (18) and have your parent’s or legal guardian’s permission to use or engage with the Platform, or are of adult age in your jurisdiction.  By using or engaging with the Platform, you also acknowledge and agree that you are permitted by your jurisdiction’s Applicable Law to use and/or engage with the Platform.

 

Prohibited Content:  You acknowledge and agree to not send any prohibited content over the Platform.  Prohibited content includes:

-       Any fraudulent, libelous, defamatory, scandalous, threatening, harassing, or stalking activity;

-       Objectionable content, including profanity, obscenity, lasciviousness, violence, bigotry, hatred, and discrimination on the basis of race, sex, religion, nationality, disability, sexual orientation, or age;

-       Pirated computer programs, viruses, worms, Trojan horses, or other harmful code;

-       Any product, service, or promotion that is unlawful where such product, service, or promotion thereof is received;

-       Any content that implicates and/or references personal health information that is protected by the Health Insurance Portability and Accountability Act (“HIPAA”) or the Health Information Technology for Economic and Clinical Health Act (“HITEC” Act); and

-       Any other content that is prohibited by Applicable Law in the jurisdiction from which the message is sent.

 

Dispute Resolution: The following outlines the protocol for any dispute, claim or controversy that mary arise. This includes disputes between you and Us, Stodge, LLC d/b/a Carts Guru, or any third-party service provider acting on Our behalf to transmit the mobile messages within the scope of the program. This includes disputes arising out of or relating to federal or state statutory claims, common law claims or this Agreement. Also included are disputes over the breach, termination, enforcement, interpretation or validity of this Agreement, including the determination of the scope of its applicability. Such disputes, claims or controversy will be, to the full extent permitted by law, determined by arbitration in [COMPANY’S CITY, STATE] before one arbitrator.

 

The parties agree to submit the dispute to binding arbitration in accordance with the Commercial Arbitration Rules of the American Arbitration Association (“AAA”) then in effect. Except as otherwise provided herein, the arbitrator shall apply the substantive laws of the Federal Judicial Circuit in which [COMPANY NAME]’s principle place of business is located, without regard to its conflict of laws rules. Within ten (10) calendar days after the arbitration demand is served upon a party, the parties must jointly select an arbitrator with at least five years’ experience in that capacity and who has knowledge of and experience with the subject matter of the dispute.  If the parties do not agree on an arbitrator within ten (10) calendar days, a party may petition the AAA to appoint an arbitrator, who must satisfy the same experience requirement. In the event of a dispute, the arbitrator shall decide the enforceability and interpretation of this arbitration agreement in accordance with the Federal Arbitration Act (“FAA”).  The parties also agree that the AAA’s rules governing Emergency Measures of Protection shall apply in lieu of seeking emergency injunctive relief from a court. The decision of the arbitrator shall be final and binding, and no party shall have rights of appeal except for those provided in section 10 of the FAA. Each party shall bear its share of the fees paid for the arbitrator and the administration of the arbitration; however, the arbitrator shall have the power to order one party to pay all or any portion of such fees as part of a well-reasoned decision.  The parties agree that the arbitrator shall have the authority to award attorneys’ fees only to the extent expressly authorized by statute or contract. The arbitrator shall have no authority to award punitive damages and each party hereby waives any right to seek or recover punitive damages with respect to any dispute resolved by arbitration. The parties agree to arbitrate solely on an individual basis, and this agreement does not permit class arbitration or any claims brought as a plaintiff or class member in any class or representative arbitration proceeding.  Except as may be required by law, neither a party nor the arbitrator may disclose the existence, content, or results of any arbitration without the prior written consent of both parties, unless to protect or pursue a legal right. If any term or provision of this Section is invalid, illegal, or unenforceable in any jurisdiction, such invalidity, illegality, or unenforceability shall not affect any other term or provision of this Section or invalidate or render unenforceable such term or provision in any other jurisdiction. If for any reason a dispute proceeds in court rather than in arbitration, the parties hereby waive any right to a jury trial.  This arbitration provision shall survive any cancellation or termination of your agreement to participate in any of our Programs.

 

Miscellaneous: You warrant and represent to Us that you have all necessary rights, power, and authority to agree to these Terms and perform your obligations hereunder, and nothing contained in this Agreement or in the performance of such obligations will place you in breach of any other contract or obligation. The failure of either party to exercise in any respect any right provided for herein will not be deemed a waiver of any further rights hereunder. If any provision of this Agreement is found to be unenforceable or invalid, that provision will be limited or eliminated to the minimum extent necessary so that this Agreement will otherwise remain in full force and effect and enforceable. Any new features, changes, updates or improvements of the Program shall be subject to this Agreement unless explicitly stated otherwise in writing. We reserve the right to change this Agreement from time to time. Any updates to this Agreement shall be communicated to you. You acknowledge your responsibility to review this Agreement from time to time and to be aware of any such changes. By continuing to participate in the Program after any such changes, you accept this Agreement, as modified."

 

Then, save your changes by clicking the Save button at the top of the page. Next, go update your Privacy Policy.

2. Update Your Privacy Policy

In addition to updating your Terms of Service, you should also update your Privacy Policy to cover your SMS marketing program.

For Shopify Stores: 

To update your Privacy Policy, go to Settings Legal in your Shopify admin and scroll down to the Privacy policy section.  If you don’t have a Privacy Policy yet, click on ‘Create from template’ and make sure to edit all of the [BRACKETED] sections appropriately. Edit your privacy policy by adding the following section. Be sure to fill in the [BRACKETS] with your company’s relevant information:

 

SMS/MMS MOBILE MESSAGING MARKETING PROGRAM

We respect your privacy. We will only use information you provide through the Program to transmit your mobile messages and respond to you, if necessary. This includes, but is not limited to, sharing information with platform providers, phone companies, and other vendors who assist us in the delivery of mobile messages.  WE DO NOT SELL, RENT, LOAN, TRADE, LEASE, OR OTHERWISE TRANSFER FOR PROFIT ANY PHONE NUMBERS OR CUSTOMER INFORMATION COLLECTED THROUGH THE PROGRAM TO ANY THIRD PARTY. Nonetheless, We reserve the right at all times to disclose any information as necessary to satisfy any law, regulation or governmental request, to avoid liability, or to protect Our rights or property. When you complete forms online or otherwise provide Us information in connection with the Program, you agree to provide accurate, complete, and true information. You agree not to use a false or misleading name or a name that you are not authorized to use. If, in Our sole discretion, We believe that any such information is untrue, inaccurate, or incomplete, or you have opted into the Program for an ulterior purpose, We may refuse you access to the Program and pursue any appropriate legal remedies.

California Civil Code Section 1798.83 permits Users of the Program that are California residents to request certain information regarding our disclosure of the information you provide through the Program to third parties for their direct marketing purposes.  To make such a request, please contact us at the following address:

[INSERT COMPANY NAME]

[INSERT COMPANY ADDRESS]

[INSERT COMPANY EMAIL ADDRESS]

This Privacy Policy is strictly limited to the Program and has no effect on any other privacy policy(ies) that may govern the relationship between you and Us in other contexts.

3. Opt-in modes on Carts Guru

Carts Guru offers 2 modes of OPT-IN. You have to choose the appropriate one regarding the applicable regulations:

 

Permissive

SMS will not be sent if the user is OPT-OUT.

SMS will be sent if the user’s OPT-IN preference is unknown.

 

Strict 

SMS will not be sent if the user is OPT-OUT.

SMS will only be sent through if users are explicitly OPT-IN.

 

You can configure it under “Privacy Center” tab in website settings.

Screen Shot 2019-08-07 at 11.22.42

 

Note: For USA, CANADA and Customer EU based, and in accordance with regulation, we strictly recommend using “Strict” mode.

4. How to collect Opt-in on Shopify

Receiving Consent To Send Messages At Checkout

Note: Before you adjust your checkout, if you haven’t already, please ensure you have added and updated your Terms of Service and Privacy Policy as outlined here.

 

As mentioned in the SMS & MMS Marketing Compliance Introduction, consumers have to provide “express written consent” before they can receive marketing communications via SMS. This article covers the three steps you need to take in order to receive full consent from the customer at the time of checkout. They are:

  1. Request that the customer sign up for marketing updates
  2. Explain that the customer will be receiving text messages from you in a TCPA-compliant manner, meaning that they acknowledge and agree: (a) to receive automated, recurring marketing messages to the consumer’s mobile phone number; (b) which may involve the use of an automatic telephone dialing system (“ATDS”), and (c) that consenting to receive such messages is not a condition of purchase.
  3. Request that the customer provide their phone number in order to receive the text messages

First, update your marketing sign-up option so that it is shown at checkout. Go to Settings Checkout and scroll down to the Email Marketing section. Make sure Show a sign-up option at checkout is checked and Preselect the sign-up option is not checked.

Screen Shot 2019-08-07 at 11.48.10

 

Then save the changes by clicking the Save button at the top of the page.

Next, update the marketing sign-up language to specify that you will send text messages. Go to Settings Checkout and scroll down to the Checkout language section.  Press the Manage checkout language button.

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Search for “Checkout Marketing”.  In the field called Accept marketing checkbox label, paste the following:

 

By Accepting, You Affirmatively Acknowledge, Consent, And Agree To The Terms And Conditions And Privacy Policy. You Further Affirmatively Consent, Agree To, And Authorize [INSERT COMPANY NAME], Its Participating Partners And Third Parties Acting On Their Behalf To Contact You Via: 1) Commercial Email Messages Sent Electronically To The Email Address Provided; 2) Marketing\/Telemarketing Messages By Telephone, Including Your Wireless Number If Provided, Using Live Operators, Automated Telephone Dialing Systems, Pre-Recorded Messages, Text Messages (Sms And Mms), Even If Your Telephone Number Is Currently Listed On Any State, Federal, Local Or Corporate Do Not Call List. Your Consent To Being Contacted Is Not Required In Order To Purchase Your Product.

 

Save the changes by clicking the Save button at the top of that page.

Next, set up a field to collect the customer’s phone number. Go to Settings Checkout and find the Form options section. Change the Shipping address phone number to Optional. Then, save the changes by clicking the Save button at the top of that page.

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Now add an SMS-specific label to the phone field (to further confirm consent).

Go to Settings Checkout and scroll down to the Checkout language section.  Press the Manage checkout language button.

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Search for “Optional phone label”.  In the fields called Option phone label and Optional phone placeholder, paste the following:

Phone - exclusive offers (per checkbox above)

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Now you’ll add the details of their text message consent in a footer. At this point you should have a Terms of Service agreement on your site that includes our SMS terms language - please add one using our template if you do not yet have one.

Search for “Terms of service” in the Checkout shop policies section, and paste in the following text:

*I agree to receive recurring automated text messages at the phone number provided. Consent is not a condition to purchase. Msg & data rates may apply. Click to view our Terms of Service.

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Then save the changes by clicking the Save button at the top of that page.

5. SMS Restricted hours

For each channel, you can decide whether to send your communications during working hours or not (8am to 8pm Monday to Saturday included). 

There is no one-size-fits-all rule to set-up your time restrictions, it depends on your market, your country and the channel. It's up to you to choose if you want to send messages only during working hours, during after hours or even on Sundays.

For USA, FRANCE and CANADA restricted hours for SMS channel is turned on by default and can’t be deactivated.

6. Unsubscribe (OPT-OUT)

(No action required)

 

You must ensure that you remove customers from your text messaging marketing campaign if they make a “reasonable” request asking to be removed. This is commonly referred to as the “opt-out” process.

 

Carts Guru provides functionality so that your SMS subscribers are able to opt out of SMS marketing messages at any time by replying “STOP” to any message you have sent.  In order to communicate this information to the customer, every message to each customer will include opt-out instructions.