Recommended Terms of Service and Privacy Policy when using Yotpo SMS & Email

This information is not legal advice. While we do our best to provide useful information to use as a starting point, Yotpo SMS & Email advises all merchants to obtain professional legal advice to ensure that all marketing campaigns are sent in full compliance with all applicable laws.

When obtaining consent for SMS marketing, you have to familiarize shoppers with your Terms of Service and Privacy Policy. According to industry guidelines, links to those documents should be included in the call-to-action compliance texts on Yotpo SMS & Email’s subscriber collection tools and Shopify checkout.

The following article will walk you through adding the necessary compliance texts, the key elements to include in your Terms of Service and Privacy Policy, providing examples for both. These examples are additions to your existing Terms of Service and Privacy Policy and relate only to text marketing.

Setting up your Terms of Service and Privacy Policy in Shopify

If you haven't already set up your Shopify Terms of Service and Privacy Policy, you can do so in your Shopify Admin settings.

First, make sure you have enabled text marketing consent in your store’s checkout. Go to the Checkout settings, scroll to the Consent for marketing section, tick the SMS marketing checkbox and save.

To add the Terms of Service and Privacy Policy texts, go to Policies and paste the example texts from the following paragraphs in the corresponding sections, as shown below. Don't forget to save.

Terms of Service

Your Terms of Service should include the following information:

• A description of the SMS service: What type of messages will shoppers receive and when, along with the company name or ID used to send the messages.
• Abandoned checkout (if applicable): A clear statement that services might include abandoned checkout reminders.
• Clear opt-out instructions: How can shoppers unsubscribe from the SMS service.
• Help instructions: How can shoppers ask questions related to the SMS service.
• Possible fees: What possible fees should shoppers expect, if any.
• Reference to changed numbers and failed messages.
• Link to the Privacy Policy.

Additionally, we recommend adding an Arbitration Agreement into your Terms of Service.

An Arbitration Agreement helps avoid costly litigation by ensuring any disputes are subject to Alternative Dispute Resolution. Litigation (aka “going to court”) is time consuming and expensive, trials can drag on for years, and attorney’s costs can quickly add up. In addition, a large class of shoppers with similar complaints could sue together (a “class action lawsuit”). Companies found at fault in class actions lawsuits can be found to be at fault for millions of dollars of liability.

Arbitration has been used effectively to avoid a class action lawsuit. Recently, arbitration agreements have been specifically upheld by federal courts as they pertain to SMS/Email customers so long as the Arbitration Agreement is clearly called out in the Terms of Service. 

Example

By consenting to [Company name]’s SMS marketing in the checkout and initializing a purchase or subscribing via our subscription tools, you agree to receive recurring text notifications (for your order, including abandoned checkout reminders), text marketing offers, and transactional texts, including requests for reviews from us, even if your mobile number is registered on any state or federal do-not-call list. Message frequency varies. Consent is not a condition of purchase.

If you wish to unsubscribe from receiving text marketing messages and notifications, reply with STOP to any mobile message sent from us or use the unsubscribe link we provided you within any of our messages. You understand and agree that alternative methods of opting out, such as using alternative words or requests, will not be considered a reasonable means of opting out. We do not charge for the service, but you are responsible for all charges and fees associated with text messaging imposed by your wireless provider. Message and data rates may apply.

For any questions, please text HELP to the number you received the messages from. You can also contact us at [LINK to your contacts page or form, or email address] for more information.

We have the right to modify any telephone number or short code we use to operate the service at any time. You will be notified on such occasions. You agree that any messages you send to a telephone number or short code we have changed, including any STOP or HELP requests, may not be received, and we will not be liable for honoring requests made in such messages.

To the extent permitted by applicable law, you agree that we will not be liable for failed, delayed, or misdirected delivery of any information sent through the service, any errors in such information, and/or any action you may or may not take in reliance on the information or Service.

Your right to privacy is important to us. You can see our Privacy Policy [LINK to Your Privacy Policy] to determine how we collect and use your personal information.

Arbitration and Class Action Waiver Agreement:

Arbitration:

By using or purchasing [Brand] products or services, you agree that any controversy, claim, action, or dispute between you and[Brand] arising out of or relating to: (a) these Terms, or the breach thereof; or (b) your access to or use of[Brand] ’s website or the services or the materials; or (c) any alleged violation of any federal or state or local law, statute or ordinance (each such controversy or claim, a “Claim”), shall be resolved exclusively through binding individual arbitration administered by the American Arbitration Association in accordance with its applicable rules.

Arbitration is a form of dispute resolution in which parties agree to submit their disputes and potential disputes to a neutral third person (called an arbitrator) for a binding decision, instead of having such dispute(s) decided in a lawsuit, in court, by a judge or jury trial. The arbitrator is obligated to issue a reasoned award in writing, including all findings of fact and law upon which the award was made. The arbitrator shall not have the power to commit errors of law, and the arbitrator’s award may be vacated or corrected through judicial review by a court of competent jurisdiction. Each party’s attorneys’ fees, expert costs, and other costs and expenses incurred in connection with arbitration will be borne by the party incurring such costs and expenses.  

Arbitration Procedures:

Claims shall be heard by a single arbitrator. Arbitrations shall be held in [County, State, USA], but the parties may choose whether to appear in person, by phone, or through the submission of documents.  The arbitration shall be governed by the Federal Arbitration Act (“FAA”) and by the internal laws of the [State], without regard to conflicts of laws principles. Any disputes in this regard shall be resolved exclusively by an arbitrator. If, but only if, the arbitrator determines the FAA does not apply, New York law governing arbitration agreements will apply. All disputes with respect to whether the foregoing mutual arbitration provisions are unenforceable, unconscionable, applicable, valid, void or voidable shall be determined exclusively by an arbitrator, and not by any court.

Exclusion from Arbitration:

Notwithstanding the terms of this Arbitration Agreement, you may choose to pursue a Claim in court and not by arbitration if you opt-out of these arbitration procedures within 30 days from the date that you first purchase any of[Brand] s products or services (the “Opt-Out Deadline”). You may opt out by mailing a written notification to [insert address]. Your written notification must include (1) your name, (2) your address, and (3) a clear statement that you do not wish to resolve disputes through arbitration. Your decision to opt-out will have no adverse effect on your relationship with [Brand]. You are responsible for ensuring[Brand] ’s receipt of your opt-out notice, and you therefore may wish to send a notice by means that provide a written receipt.  Any opt-out request received after the Opt-Out Deadline will not be valid and you must pursue your Claim in arbitration.

Class Action Waiver:

You and[Brand] agree that you may bring or participate in Claims against[Brand]  only in your respective individual capacity, and not as a plaintiff or class member in any purported class, consolidated, or representative proceeding.  Unless both you and[Brand] agree otherwise in writing, the arbitrator may not consolidate or join the claims of other persons or parties who may be similarly situated and may not otherwise preside over any form of a representative or class proceeding. Notwithstanding any other clause contained in this Agreement, any Claim that all or part of this Class Action Waiver is unenforceable, unconscionable, void or voidable may be determined only by a court of competent jurisdiction and not by an arbitrator.

Privacy Policy

Your privacy policy should include the following information:

• A description of the SMS service: When and what type of messages will shoppers receive.
• Abandoned checkout cookie use (if applicable): A clear statement that the website captures cookies to determine when a shopper has abandoned their checkout.

Example

We value your privacy and the information you consent to share in relation to our SMS marketing service. We use this information to send you text notifications (for your order, including abandoned checkout reminders), text marketing offers, and transactional texts, including requests for reviews from us.Opt-in data and consent for text messaging will not be shared with any third parties except for messaging partners,for the purpose of enabling and operating our text messaging program.

Opt-in data and consent for text messaging will not be shared with any third-parties except for messaging partners, for the purpose of enabling and operating our text messaging program.

Our website uses cookies to keep track of items you put into your shopping cart, including when you have abandoned your checkout. This information is used to determine when to send cart reminder messages via SMS.

If you have already set up your Terms of Service and Privacy Policy, make sure they include all elements listed above.

These are the key elements necessary for creating and setting up your Terms of Service and Privacy Policy for SMS marketing in Shopify. Don’t hesitate to go to our Knowledge Base for more useful articles, or contact us if you have any questions or feedback.