TCPA Litigator List Agreement for Products and Services
1. Terms and Conditions
This TCPA LITIGATOR LIST AGREEMENT, together with all terms and conditions stated herein, together with the Order Form, which is incorporated herein by reference, constitute the “Agreement” between ___________ (“Client”) and DNC and TCPA List Sanitizer, LLC d/b/a TCPA Litigator List (“TLL”) (individually “Party” and collectively “Parties”) and shall govern the relationship of the Parties.
2. TLL shall provide products and services to Client as set forth in the Order Form. Any changes or additions to the services set forth in the Agreement shall be set forth in a mutually executed addendum (“Addendum”). In the event of any conflict between the Addendum and the Agreement, the Addendum shall govern, but only to the extent necessary to address such conflict.
3. Fair Credit Reporting Act (FCRA): The data provided to Client by use of the products and services herein may not be used as a factor in establishing a consumer’s eligibility for credit, insurance, employment or other purposes identified under the FCRA.
4. Client Data: The following provisions shall apply to products and services that require Client to provide raw telephone numbers to TLL as required by TLL from Client in order for TLL to provide the selected Services (the “Client Data”).
4.1. Client (or Client’s authorized agents as detailed below) shall deliver the Client Data by electronic transmission, such as upload via web browser, email, or ftp as selected in the Order Form using TLL’s proprietary software. TLL will create an output file (“Scrubbed File”) for Client and Client shall be able to view the Scrubbed File at the TLL Website.
4.2. TLL may change the method by which Client Data is uploaded and Scrubbed Files are
sent to Client upon notice to Client. All Client Data and Client’s custom lists must be delivered to TLL in a reasonable and mutually agreed upon standard format. Client acknowledges that of the data that Client provides, only telephone numbers will be purged against Do Not Call lists.
5. Authorized Users and Uploaded Client Data:
5.1. Only Client and Client’s duly authorized employees and agents shall be permitted to upload Client Data for processing by TLL and to log into any of the TLL sites for access to any products or services provided pursuant to this Agreement.
5.2. The products and services provided by TLL may only be utilized by the number of users and type of users set as forth in the Order Form. Client shall be responsible for enabling and maintaining passwords, selecting users qualified to access the TLL site, and distributing passwords to said users. Client promises to ensure that Client and Client’s users, employees, agents, and assigns shall use their best and commercially reasonable efforts to prevent any third party from unauthorized use of TLL products and services, including obtaining a password. Client promises to inform TLL immediately upon discovery of any actual and potential unauthorized
access by anyone.
5.3. Client shall be responsible for maintaining all hardware and software necessary to send
Client Data to TLL and receive Scrubbed Files from TLL, including without limitation, computers, modems, internet service, all necessary email accounts, and any software necessary to transmit or receive Client Data and Scrubbed Files. After a period of time, TLL may analyze and/or use the uploaded data as it sees fit.
6. Availability, Downtime:
6.1. Availability. Access to the TLL site and services shall be available to Client twenty-four (24) hours per day, seven (7) days per week, during the pendency of this Agreement except for one percent (1%) of unscheduled down-time and any scheduled down-time. Client agrees that about a one percent (1%) unscheduled down-time shall be acceptable as performance under this Agreement and shall not constitute a breach hereof.
6.2. Scheduled Maintenance: The TLL site and Service may not be available: (i) on a monthly basis for scheduled maintenance on the second Sunday of the month from 12:01 a.m., until 11:59p.m., daylight savings time (24 hours); and (ii) once per year for a 24 hour period for major maintenance and upgrades.
7. Price and Terms of Payment: Client shall pay TLL the initial set-up fee and first monthly charge for the products and services as identified on the Order Form. Client shall pay the initial set-up fee and first monthly fee in advance of any products or services being provided. Client will also pay TLL any overage fee as set forth in the Order Form. The fees identified in this subsection are non-refundable.
7.1. Monthly Fees. Payment under this Agreement shall be monthly in advance for the upcoming month and shall commence on the first month following the payment of the initial set-up fee and first month charge for products and services.
7.2. Recurring Payment: Client is required to maintain a valid credit card on file and Client hereby authorizes TLL to charge monthly fees due hereunder to that credit card on a monthly basis until this Agreement is terminated.
7.3. Fees due: Client agrees that fees and costs pursuant to this Agreement are due regardless of Client’s use of the products and services. Client expressly acknowledges and agrees that TLL’s duty pursuant to this Agreement is to make the products and services available and that TLL’s duties are unrelated to Client’s use or nonuse of the products and services. Client agrees that fees due hereunder are due based on TLL making the products and services available and not based on whether Client accesses or uses them.
8. Client’s Rights to Use State and Federal Do Not Call Lists:
8.1. Compliance with DNC Laws: Client warrants and represents that Client and Client’s employees, agents, and assigns have reviewed, understand, and will comply with all of the following:
(i) the Federal Trade Commission’s amended Telemarketing Sales Rule (16 C.F.R. Part 310); the (ii) the Telephone Consumer Protection Act (“TCPA”) of 1991 (47 C.F.R. §64.1200); and (iii) Commission’s implementing or relating to the TCPA or the National Do Not Call Registry (“DNC Registry”). Client further warrants and represents that it will use data derived from the DNC Registry solely to comply with said rules and otherwise prevent telephone calls to telephone numbers on the DNC Registry.
8.2. Rights to Access: Client warrants and represents that Client has the right to access and process Client Data in the jurisdictions at issue, or in each jurisdiction from which federal or state Do Not Call list data is obtained from TLL. Client warrants and represents that Client will not submit
any telephone number to TLL or download any DNC Registry Data from TLL until Client has purchased access to the DNC Registry for the area code in which the telephone number is located. TLL shall have no obligation to perform its obligations under this Agreement until Client provides a DNC Registry Subscription Account Number and password for each jurisdiction at issue.
8.3. Assignment to TLL: To the extent allowed by law, Client hereby assigns Client’s rights to access and process the data on the DNC Registries to TLL for purposes of allowing TLL to perform under this Agreement and Client shall not restrict TLL from accessing such lists. Client shall immediately notify TLL if Client loses rights and privileged to access and process the data contained on the aforementioned DNC Registries.
8.4. Client hereby agrees to provide TLL with any information and documentation that TLL deems necessary to prove that Client has the appropriate permissions and rights to access and process data from applicable DNC Registries and any failure to provide the requested information shall be deemed a material breach of this Agreement which will excuse TLL from performance.
8.5. Client hereby indemnifies and holds harmless TLL from any liability whatsoever and in any form resulting from Client’s failure to be fully compliant with all federal, state, local, or private rules, regulations, statutes, or requirements governing information and number that Client access or that Client provide to TLL.
9. Term and Termination
The initial term of this Agreement shall be (1) month from the date on the order submission (“Initial Term”). Unless otherwise noted on an Order Form, after the Initial Term, provided neither Party has terminated, this Agreement shall automatically renew for additional one (1) month terms (each an “Additional Term”). Either Party may terminate this Agreement during the Initial Term, or any Additional Term, by providing 30 days written termination notice to the other Party. In the event of termination by either Party, Client will be responsible to pay for the fees due hereunder for the final 30 days of the Term. The Initial Term, together with the Additional Terms, shall be considered the “Term.” Monthly subscription plans are listed on the subscription page of the website.
10. TLL Intellectual Property and TLL Property
All of TLL’s intellectual property, including any copyrights, patents, trademarks, service marks, other names used in trade or trade secrets (“TLL IP”) is the property of TLL and Client is strictly prohibited from any use thereof without a separate and express written permission of TLL.
10.1. Restrictions on Use of TLL Property.
Client does not have the right to use (except as specifically authorized under these Terms), does not own, and does not acquire under this Agreement: (i)any TLL IP; (ii) any TLL products or services; (iii) any TLL concepts of the products or services; (iv) any TLL materials developed therewith, including all software necessary to provide each service; (v) any proprietary information of TLL, including that concerning the products and services; or (v) any trade secrets of TLL (collectively, “TLL Property”).
10.2. Client’s Representations Regarding TLL Property
Client represents, warrants, and hereby promises not to take, use, license, transfer, appropriate for Client’s use, reverse engineer, share, disseminate, modify, copy, reproduce, republish, upload, post, transmit, or distribute, or otherwise utilize any TLL Property beyond the scope of any such use expressly provided in this Agreement (“Unauthorized Use”). If Client does conduct Unauthorized Use of any TLL Property without permission as stated herein, Client agrees to compensate TLL for any and all losses they may arise including all of TLL’s damages, costs and reasonable attorney fees resulting from Client’s use. Additionally, Client acknowledges and agrees that Client may not modify, copy, reproduce, republish, upload, post, transmit, or distribute, in any manner TLL Property or the material on the TLL website, including, TLL IP, listed TCPA phone numbers, text, graphics, code and/or software.
10.3. Client’s Representations and Warranties:
In addition to the representations and warranties made above, Client additionally represents and warrants that: (i) Client has the right and power to enter into this Agreement; (ii) Client’s execution and performance of this Agreement will not violate or conflict with any other obligation to which Client are subject; (iii) the Client Data does not infringe upon or violate any
copyrights, trademarks, patents, trade secrets or any rights of privacy or publicity or other proprietary rights of any third party; and (iv) Client shall at all times conduct its business and use the TLL Services in compliance with all the provisions in the Agreement and all applicable Laws.
11. DISCLAIMER OF WARRANTIES: EXCEPT AS EXPRESSLY PROVIDED HEREIN, TLL MAKES NO
REPRESENTATIONS OR WARRANTIES AND EXPRESSLY DISCLAIMS ANY IMPLIED WARRANTIES
WITH RESPECT TO THE SITE AND THE SERVICES PROVIDED BY TLL AS DESCRIBED HEREIN, INCLUDING, WITHOUT LIMITATION, (A)THAT COMMUNICATIONS VIA THE INTERNET ARE SUBJECT TO UNEXPECTED OUTAGES DUE TO THE EQUIPMENT FAILURE OR SOFTWARE FAILURE THAT CAN OCCUR AT VAROUS LOCATIONS, (B) THE ACCURRACY AND TIMELINESS OF THE TLL SERVICES, AND (C) THE PRODUCTS AND SERVICES PROVIDED ARE FIT FOR THE PARTICULAR USE INTENDED BY THE CLIENT. CLIENT FURTHER ACKNOWLEDGES THE POTENTIAL FOR ANY INTERNET-BASED SYTEM TO BE PENETRATED UNLAWFULLY FOR THE PURPOSE OF THEFT OR DAMAGE OF MATERIAL. TLL EXPRESSESLY DISCLAIMS ALL OTHER WARRANTIES, EXPRESSED OR IMPLIED, INCLUDING, BUT NOT LIMITED TO, THE IMPLIED WARRANTIES OF MERCHANTABILITY AND FITNESS FOR A PARTICULAR PURPOSE. ANY AND ALL OTHER WARRANTIES OR ANY KIND WHATSOEVER ARE EXPRESSED EXCLUDED. IN CONNECTION WITH CLIENT’S USE OF THE SERVICES AND THE RESULTS THEREOF, TLL ADVISES CLIENT AND CLIENT ACKNOWLEDGES ITS RESPONSIBILITY TO SEEK THE ADVICE OF EXPERIENCED LEGAL COUNSEL PRIOR TO USING THE SERVICES AND SCRUBBED FILES.
12. LIMITATION OF LIABILITY.
CLIENT ACKNOWLEDGE AND AGREE THAT THE CONSIDERATION WHICH CLIENT IS PAYING TO TLL
FOR THE SERVICES PROVIDED DOES NOT INCLUDE ANY CONSIDERATION FOR ASSUMPTION BY TLL OF
THE RISK OF DIRECT, INDIRECT, CONSEQUENTIAL OR OTHER DAMAGES WHICH MAY BE ALLEGED TO ARISE IN CONNECTION WITH THE SERVICES PROVIDED BY TLL UNDER THESE TERMS EXCEPT AS SPECIFICALLY PROVIDED HEREIN. ACCORDINGLY, CLIENT AGREES THAT TLL SHALL NOT BE RESPONSIBLE TO CLIENT FOR ANY LOSS OF PROFIT OR DIRECT, INDIRECT, INCIDENTAL, SPECIAL, OR CONSEQUENTIAL DAMAGES ARISING OUT OF THE SERVICES PROVIDED BY TLL UNDER THESE TERMS EXCEPT AS SPECIFICALLY PROVIDED HEREIN. FURTHER, TLL’S TOTAL LIABLITY TO CLIENT SHALL IN
NO EVENT EXCEED THE SUBSCRIPTION FEE PAID BY CLIENT TO TLL IN THE PRECEDING
13.1 Indemnity Obligation: Client agrees to indemnify, defend and hold harmless TLL and its affiliates, directors, officers, employees and agents, members and managers (“indemnified parties”) from and against any and all damages, losses, liabilities judgments, awards, penalties and reasonable expenses, including without limitation, reasonable out-of-pocket attorneys’ fees and costs of defense (together “Losses”) incurred as a result of any third-party claim, demand, proceeding or litigation asserted by a prospective customer or other person arising out of this Agreement or based on a claimed breach of the same by TLL.
14. Client give express written consent to be contacted by TLL and its third-party partners by mobile phone, landline, text, fax and email if required.
15. Additional Compliance Solutions: This section shall apply to the Client’s use of TLL’s TCPA Litigator List, Phone Scrub, Number Search, and TCPA Litigator List Updates:
15.1. Phone Scrub: TLL maintains an online TCPA Litigator phone scrub for Excel and CSV files. Client may upload a list of phone numbers to the phone scrub program in his account. The TPCA Litigator Phone Scrub is designed to identify and remove from Client’s calling list most of if not all the known telephone numbers associated with prior TCPA plaintiffs.
15.2. Number Search: TLL maintains an online TCPA Litigator number search for single phone number lookups. The Number Search is designed to identify from Client’s calling list most of if not all the known telephone numbers associated with prior TCPA plaintiffs.
15.3. TCPA Litigator List Updates: There are hundreds of TCPA cases filed monthly. TLL adds the new TCPA plaintiffs’ numbers as they are made available. Many professional TCPA litigators register new phone numbers. TLL monitors for newly registered TPCA professional litigators’ phone numbers. TLL updates the site with new phone numbers on a periodic basis several times a month if not daily, TLL adds additional TCPA plaintiffs’ numbers.
16. Disclaimer: TLL strives to provide an accurate and comprehensive TPCA Litigator list and scrubbing service. Due to the nature of the professional litigators, the TCPA statue and the fact that anyone can decide to sue under the TCPA for a single phone call, the actual success of the TCPA Litigator list and scrubbing will vary and depend on a variety of factors, many of which are beyond the control of TLL and its data sources. As such, the TCPA Litigator list and Scrubbing services alone will not recognized all reassigned numbers, numbers assigned to VoIP lines, or numbers used by TCPA plaintiffs. TLL disclaims any warranty, express or implied, as to the TCPA Litigator List and scrubbing services as being 100% accurate or comprehensive or that will in any way prevent Client from being sued by any company or individual. Client agrees to use the TCPA Litigator services in a defensive manner to avoid litigation and not to use the list and scrubbing services in a malicious manner.
17. Notices: Unless otherwise provided, any notice required or permitted under this Agreement shall be given in writing and shall be sent by United States certified mail and shall be addressed to the person accepting the contract at the address noted on this contract.
18. TCPA Credit System:
The system generally operates as follows: The TPCA client will be allotted a certain number of scrubbing credits each month depending on his subscription plan. The credits have no monetary value. All credits expire if the client cancels his subscription. 1 credit = .001 cent. Additional Credits may be purchased at https://tcpalitigatorlist.com/credit-packs/. The credits usage is calculated by the number of phone scrubs. One phone number scrub equals one credit. The phone number scrub can be scrubbed in any combination and counts as one credit. Example, if the user scrubs a list of 1000 phone numbers against the TCPA and the DNC complainer database, the user will only be deducted 1000 credits, not 2000. If the user scrubs the same list twice or there are duplicate
numbers from different lists, the users credits will be deducted by the number of phone numbers on the list. TCPA API credits system is similar to the online phone scrubbing system in that one phone scrub equals one credit. If a user is making 10K phone calls using our API daily, 10K credits would be deducted from his account. State scrub credits are 0.25 credits per phone number per state. Phone Verification uses 5 credits per scrub. Phone verification scrub and TCPA scrub is five credits plus
one credit for a total of 6 credits per scrubbed phone record. Credit Prices are subject to change.
19. TCPA API:
Application Programming Interface (API) allows applications (databases) to communicate with each other. The TCPA API can be integrated with Client’s database or dialer to provide real-time scrubbing. All the phone scrubbing and updates are automatically done through the API integration. The API phone scrubbing credit are the same as listed above or in the subscription plan.
20. Phone verification service: the TCPA Litigator list offers a phone verification service for a fee as described on the website, https://tcpalitigatorlist.com/coin-packs/. The phone verification identifies the phone numbers line type, (landline, mobile, toll free, VoIP), the mobile network (if applicable), and whether the phone number is active or inactive. The Client may purchase verification coins and redeem them on the site to verify phone numbers on his lists. Once purchased the verification coins have no monetary value and cannot be redeemed or exchanged for money. The verification coins do not expire as long as the account is in good standing. If the user cancels his subscription or has his subscription suspended for non-payment, his verification coins will expire.
21.1. The terms and conditions of this Agreement shall inure to the benefit of and be binding upon the respective successors and assigns of the parties. Nothing in this Agreement, expressed or implied, is intended to confer upon any party other than the Parties hereto or their respective successors and assigns any rights, remedies, obligations or liabilities under or by reason of this Agreement, except as expressly provided in this Agreement.
21.2. This Agreement shall be governed in all respects and construed in accordance with the laws of the state of Colorado, without regard for conflict of laws principles. The parties agree that they will bring any lawsuit based upon this agreement in Denver County, Colorado. Client consents to the exclusive jurisdiction and the exclusive venue of the State or Federal Courts of the State of Colorado, Denver County, to resolve any dispute between the related hereto, and the Parties waive all rights to contest this exclusive jurisdiction and venue of such Courts. If any provision of this Agreement shall be deemed invalid or unenforceable, this Agreement shall be construed as though such provision does not appear herein and shall be otherwise fully enforceable.
21.3. TLL Litigator scrubbing services may be cancelled or delayed due to circumstances beyond TLL’s control such as acts of God, regulation, war, equipment failures, etc. without penalty to either Party.
21.4. This contract contains the entire Agreement between the parties hereto and supersedes any prior agreement between the parties. Any changes to this Agreement must be made in writing and mutually signed by both Parties to this Agreement.
21.5. This Agreement may be executed in two or more counterparts each of which shall be deemed an original but all of which together shall constitute one and the same instrument. This Agreement may also be executed through electronic means such as e-mail with electronic signature or by facsimile reproduction.