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10.11 Withdrawal of Consent to Electronic Notices and Records Checklist and Sample Provisions for Companies Addressing Withdrawal of Consent to Electronic Notices and Records All companies considering sending and receiving electronic notices to customers, should consider and act on the following:* clearly set forth to all customers, not just consumers, withdrawal conditions, fees and effects * provide consumers with a clear "Terms of Service" statement setting forth the common circumstances in which they will be deemed to have withdrawn consent * consider adopting emerging standards from heavily regulated industries where rules are likely to be adopted early, e.g., the Federal Reserve Interim Regulations * adapt proven techniques from other "information delivery" industries, such as three unsuccessful delivery tries, before declaring a withdrawal * ask for multiple e-mail addresses; build your e-mail system so that alternate e-mail addresses are automatically used in the case of a bounce-back, notification of e-mail system failure/unavailability, or incorrect e-mail address notifications * add return receipts to transmissions * build appropriate safeguards and error detection and correction capabilities into your e-mail distribution system or require such safeguards from your third party e-mail handler * use the "clear and conspicuous" statement to stress that the consumer is responsible for filing or keeping track of their records as if they were paper, and it is the consumer's responsibility to archive such information * where a company receives actual notice from a consumer that such customer has not received previous messages, consider providing paper copies of the records in question Sample Drafting Solutions What happens when there are, less certain, but still reasonable indicators that withdrawal may have occurred? Set forth below are three possible scenarios. The company should anticipate such situations in the withdrawal conditions E- Sign allows the company to impose. The "clear and conspicuous" statement provided to the consumer under Section 101(a)(1)(A) and (B) of E-Sign should not be limited to the conditions for withdrawal and the penalties that attach; rather, it should also identify commonly occurring problems in electronic delivery and specify under what circumstances withdrawal will be deemed to have occurred. For all possible scenarios, the company should consider: Has the customer withdrawn their consent in each case? May an information provider presume withdrawal of consent from these occurrences? What steps, if any, must the company take to validate the presumed withdrawal? Must the company begin sending paper records? May the company impose the penalties mandated by its withdrawal policy, possibly including termination of the relationship? Scenario (1): A company's e-mail is sent to a correct e-mail address but cannot be delivered because of a temporary disruption of e-mail service. For scenario (1) events, the company withdrawal policy could include the following provisions: In the event that Company receives a notification that your e-mail system cannot receive incoming messages, Company will (a) attempt to deliver your information two (2) additional times, two (2) or more days apart. If the third attempt to deliver the information to you fails, Company may assume that you have withdrawn your consent to receive information electronically and the Withdrawal of Consent provisions will apply. Company will then provide [for an extra fee] all information to you in hard copy form, mailed to the street address you have provided to us. You must then electronically provide your consent to receive future information electronically. (2) A company's e-mail notification to a consumer is "bounced," and the company is notified that no such e-mail address exists. For scenario (2) events, the company withdrawal policy could include the following provisions: In the event Company receives a notification that your e-mail address is inactive/does not exist, the Company will (1) take reasonable steps to verify that we have your correct mailing address and/or (2) re-mail the information to any other e-mail address you have provided. If, after verification, no e-mail address you have provided is active, Company shall deem you to have withdrawn your consent to receive information from us electronically and the Withdrawal of Consent provisions will apply. Company will then provide all information to you in hard copy form, mailed to the street address you have provided to us. You must then electronically provide your consent to receive future information electronically. (3) A company receives notice from the customer that the consumer has not had e-mail for four months, but the company's e-mail notifications have not "bounced," nor has the company received any other notification that prior e- mails have not been delivered. For scenario (3) events, the company withdrawal policy could include the following provisions: Company shall not be responsible for providing copies of information sent to you electronically if you do not receive such information because you cancelled your e-mail address without notifying us within fifteen days of such cancellation. You may obtain copies of such records at the fees stated below. In addition, the Withdrawal of Consent provision will apply. Company will then provide all information to you in hard copy form, mailed to the street address you have provided to us. You must then electronically provide us your consent in order to receive future information electronically.