Essential Additions to Your Terms of Service When Offering SMS Marketing

If your company is looking to engage customers with SMS marketing, it’s not as simple as just sending promotional texts. There are legal and regulatory obligations you must meet to protect your brand and ensure compliance. One of the first steps is updating your online Terms of Service (ToS) to reflect this new marketing channel. Here are the key provisions every company should add before rolling out SMS campaigns.

1. Clear Opt-In Consent Requirements
Before any texts can be sent, your Terms of Service should detail exactly how users will opt in. Specify that signing up—via a website form, text-to-join keyword, or other method—constitutes express written consent to receive SMS marketing messages. This not only makes your process transparent but also helps fulfill legal requirements outlined by regulations like the Telephone Consumer Protection Act (TCPA).

2. Opt-Out Instructions and Policy
Your customers must know how to stop receiving messages whenever they choose. Include a clear, simple opt-out mechanism in your ToS, such as replying with “STOP” or “UNSUBSCRIBE.” Reinforce that these are the only recognized ways to end participation. This ensures users aren’t left guessing and reduces potential legal complications.

3. Frequency and Message Content Descriptions
To avoid surprising customers, your Terms should mention the nature of the messages and how often they might be received. For example: “You may receive up to [X] messages per week.” Being upfront about frequency and content builds trust with subscribers and sets their expectations accordingly.

4. Disclosure of Message and Data Rates
If applicable, clarify that standard text message and data rates may apply, depending on the user’s carrier and plan. Even though most customers are aware of these charges, explicitly stating it helps avoid confusion and disputes later.

5. Autodialer and Non-Purchase Requirements
Many laws require disclosure when messages are sent using an automated dialing system. If you’re using an autodialer, make it clear in your Terms. Additionally, confirm that opting into SMS marketing is never a condition of purchasing goods or services. This ensures compliance with federal and state regulations.

6. Duty to Notify of Number Changes
Include a requirement that users must notify you before discontinuing or transferring their mobile number. This helps prevent accidental messaging of people who inherit recycled phone numbers and protects your company from related legal claims.

7. Liability Limitations and Indemnification Clauses
It’s wise to include language stating that the company isn’t liable for any delays or message delivery failures caused by third-party carriers or technical issues beyond your control. You may also want to add an indemnification clause, requiring customers to cover any legal costs if they fail to update their contact information and a future owner of their old phone number files a complaint.

8. Arbitration and Dispute Resolution Provisions
If your overall Terms of Service include dispute resolution provisions like arbitration, clarify that these also apply to disputes arising from SMS marketing. This consistency ensures that SMS-related claims are handled under the same framework as any other legal issues with your business.

9. Privacy Policy Integration
SMS marketing often involves personally identifiable information (like a mobile phone number). Make sure your Terms link to or incorporate your Privacy Policy, clarifying how you store, handle, and protect such data. Reassure customers that their information won’t be sold or misused and explain any data-sharing arrangements with third-party vendors.

10. Compliance With Age Restrictions
If your company has age-based eligibility requirements, highlight how these restrictions apply to SMS marketing. If parental consent is needed for minors, make this explicit. Such provisions ensure you aren’t inadvertently sending promotional texts to ineligible users.