Consequence for Failure to Comply with Applicable Federal/State Laws and Regulations
This Consequence for Failure to Comply with Applicable Federal/State Laws and Regulations (“Agreement“) is a legally binding agreement between the user (“User”, “Client”, or “you“) and Stealth Data, LLC, a Missouri Limited Liability Company with its principal office at 4700 Belleview Ave., Suite 100C, Kansas City, Missouri 64112, USA (“Stealth Data“ or “ID”) or collectively known as “Parties” “We” or “Us”.
Please make sure you fully understand the contents of this Agreement. If you have any doubts about any of your rights and obligations resulting from your acceptance of this Agreement, please consult us or obtain legal counsel.
Applicable Federal/State Laws and regulations Compliance & Consequence of Failure to Comply. Clients are required to remain compliant with all applicable federal and state laws/regulations regarding consumer protection, data privacy/security, and sales/marketing restrictions. Failure to comply with the aforementioned with all applicable federal and state laws/regulations is violation of these terms of service and upon discovery will result in your subscription being terminated immediately. Specifically, it is a violation of these terms of service by not being compliant with the Telephone Consumer Protection Act (TCPA), Can-Spam Act, Telemarketing Sales Rule (TSR), and, if applicable, the California Consumer Privacy Act (CCPA), Nevada Privacy Law, Virginia Consumer Data Protection Act (CDPA), and the EU General Data Protection Regulations (GDPR).
CAN-SPAM ACT Compliance & Consequence of Failure to Comply. The CAN-SPAM Act is a law that sets the rules for commercial email, establishes requirements for commercial messages, gives recipients the right to have you stop emailing them, and spells out tough penalties for violations. Failure to comply with this law is a violation of these terms of service and upon discovery will result in your subscription being terminated immediately. Despite its name, the CAN-SPAM Act doesn’t apply just to bulk email. It covers all commercial messages, which the law defines as “any electronic mail message the primary purpose of which is the commercial advertisement or promotion of a commercial product or service,” including email that promotes content on commercial websites. The law makes no exception for business-to-business email. That means all email, for example, a message to former customers announcing a new product line must comply with the law.
Each separate email in violation of the CAN-SPAM Act is subject to penalties of up to $43,792, so non-compliance can be costly. But following the law isn’t complicated. Here’s a rundown of CAN-SPAM’s main requirements:
- Don’t use false or misleading header information. Your “From,” “To,” “Reply-To,” and routing information – including the originating domain name and email address – must be accurate and identify the person or business who initiated the message.
- Don’t use deceptive subject lines. The subject line must accurately reflect the content of the message.
- Identify the message as an ad. The law gives you a lot of leeway in how to do this, but you must disclose clearly and conspicuously that your message is an advertisement.
- Tell recipients where you’re located. Your message must include your valid physical postal address. This can be your current street address, a post office box you’ve registered with the U.S. Postal Service, or a private mailbox you’ve registered with a commercial mail receiving agency established under Postal Service regulations.
- Tell recipients how to opt-out of receiving future email from you. Your message must include a clear and conspicuous explanation of how the recipient can opt out of getting email from you in the future. Craft the notice in a way that’s easy for an ordinary person to recognize, read, and understand. Creative use of type size, color, and location can improve clarity. Give a return email address or another easy Internet-based way to allow people to communicate their choice to you. You may create a menu to allow a recipient to opt-out of certain types of messages, but you must include the option to stop all commercial messages from you. Make sure your spam filter doesn’t block these opt-out requests.
- Honor opt-out requests promptly. Any opt-out mechanism you offer must be able to process opt-out requests for at least 30 days after you send your message. You must honor a recipient’s opt-out request within 10 business days. You can’t charge a fee, require the recipient to give you any personally identifying information beyond an email address, or make the recipient take any step other than sending a reply email or visiting a single page on an Internet website as a condition for honoring an opt-out request. Once people have told you they don’t want to receive more messages from you, you can’t sell or transfer their email addresses, even in the form of a mailing list. The only exception is that you may transfer the addresses to a company you’ve hired to help you comply with the CAN-SPAM Act.
- Monitor what others are doing on your behalf. The law makes clear that even if you hire another company to handle your email marketing, you can’t contract away your legal responsibility to comply with the law. Both the company whose product is promoted in the message and the company that actually sends the message may be held legally responsible.
One last thing: It’s important to keep in mind that the Can-Spam Act is complex. Therefore, it’s usually in your best interest to contact legal counsel in the event that you have questions or may have fallen out of compliance.
Telephone Consumer Protection Act Compliance (TCPA) & Consequence of Failure to Comply. If you’re not already familiar, TCPA stands for Telephone Consumer Protection Act and was signed into law in 1991. Failure to comply with this law is a violation of these terms of service and upon discovery will result in your subscription being terminated immediately. The act was designed to reduce the number of telemarketing calls received by consumers. It included a “do-not-call” (DNC) list, though it wasn’t until 2003 that the FTC established a centralized list, as well as other provisions related to telemarketing calls, auto-dialed calls, prerecorded messages, text messages, and unsolicited faxes. In October of 2013, the TCPA was updated to require express written consent for auto-dialed calls, prerecorded calls, and text messages sent to wireless numbers. The update also requires written consent for prerecorded calls that are made to residential numbers.
TCPA Compliance Checklist:
- Do not call residences before 8am or after 9pm, local time;
- Keep a DNC list specific to your business or organization and honor it for 5 years;
- Honor the National DNC Registry;
- Provide your name, the name of your company, and a phone number or address where the consumer can reach your company;
- Without prior written consent, do not use artificial voices or recordings when contacting residences;
- Do not use auto-dialers, artificial voices, or recordings when contacting hospitals and other healthcare facilities, mobile phones, or other numbers where the recipient pays for the call;
- If using a prerecorded message, include an opt-out function that will put the consumer on the DNC at their request;
- Disconnect a call if no one has picked up after 15 seconds or 4 rings, whichever is sooner;
- The abandonment rate for calls answered by a live person cannot exceed 3% in a 30-day period for a single calling campaign (If the campaign lasts longer than 30 days, the counter simply resets at the start of the following period);
- Check regulatory updates at least once a week, either through a newsletter subscription or legal counsel.
TCPA Exceptions include:
- Calls that are manually dialed do not fall under TCPA regulations;
- Calls made by a tax-exempt nonprofit;
- “Urgent” calls, such as prescription notifications or appointment reminders made by “covered entities” (See HIPAA for definition of covered entities);
- Emergency calls;
- Commercial calls that don’t include advertisements or other solicitations that would constitute telemarketing; and
- Calls that are not made for a commercial purpose.
One last thing: It’s important to keep in mind that the TCPA is complex legislation that remains subjective, despite clarification by the FCC. Therefore, it’s usually in your best interest to contact legal counsel in the event that you have questions or may have fallen out of compliance. With new cases passing through litigation every day, new guidance is constantly coming out about how to handle telemarketing calls. To protect yourself and your business, we encourage you to stay informed at all times.
Telemarketing Sales Rule (TSR) & Consequence of Failure to Comply. The Telemarketing Sales Rule (TSR) requires telemarketers to make specific disclosures of material information; prohibits misrepresentations; sets limits on the times telemarketers may call consumers; prohibits calls to a consumer who has asked not to be called again; and sets payment restrictions for the sale of certain goods and services. Failure to comply with this law is a violation of these terms of service and upon discovery will result in your subscription being terminated immediately. The Telemarketing Sales Rule, in effect since December 31, 1995, was revised in January 2003. It enforces a law Congress passed to fight fraudulent activities carried out by telephone and to give consumers added privacy protections. Companies that violate the Rule are subject to fines of up to $11,000 per violation. The Federal Trade Commission defines telemarketing as any plan, program or campaign to induce the purchase of goods, services, or a charitable contribution over the telephone. The FTC’s Telemarketing Sales Rule prohibits misrepresentations and requires telemarketers to give you certain disclosures. It also gives you the power to stop unwanted telemarketing calls. The Rule requires specific disclosures.
For outbound calls, the following prompt (before any sales pitch is given) clear and conspicuous oral disclosures:
- The seller’s identity;
- That the purpose of the call is to sell;
- The nature of the goods or services offered; &
- That no payment or purchase is necessary to win if a prize promotion is offered.
For all transactions, whether they involve inbound or outbound calls, the following clear and conspicuous written or oral disclosures:
- The cost and quantity of the goods or services offered;
- Any material restrictions, limitations, or conditions;
- Any “no-refund” policy; if a refund policy is mentioned, the material terms and conditions of the refund policy must be disclosed;
- Prize promotion disclosures: the odds of winning, or if the odds can’t be calculated, the factors that determine the odds; that no purchase/no payment is necessary to win; a statement of no purchase/no payment method of entry; and any material restrictions or limitations on any offered prize.
A telemarketer cannot:
- Call again once you’ve asked them not to or if your phone number is on the National Do Not Call Registry;
- Call you before 8:00 a.m. or after 9:00 p.m.;
- Withdraw money from your checking account without your express, verifiable authorization;
- Misrepresent the offer or the goods or services offered or make any false statement to get you to pay, no matter what method of payment you use; &
- Seek payment for credit repair, recovery room or advance fee loan/credit services until these services have been delivered.
Exceptions to the Rule:
- Calls placed by consumers in response to general media advertising if the advertising does not relate to: investment opportunities; credit repair services; recovery services; or loans or other extensions of credit, the granting of which is represented to be guaranteed or highly likely;
- Calls placed by consumers in response to direct mail advertising if the advertising discloses all the material information required by the Rule;
- Catalog sales;
- Calls initiated by the consumer that are not made in response to any solicitation;
- Calls involving sales that are not completed, and payment (or authorization of payment) is not required, until after a face-to-face sales presentation;
- Business-to-business calls (unless nondurable office or cleaning supplies are being offered);
- Sales of pay-per-call services and sales of franchises.
The Amended Telemarketing Sales Rule also includes provisions related to predictive auto dialers and advance consent marketing. For further information, see www.ftc.gov. One last thing: It’s important to keep in mind that the Telemarketing Sales Rule is complex. Therefore, it’s usually in your best interest to contact legal counsel in the event that you have questions or may have fallen out of compliance.
Email Spam or Abuse Reporting by Client’s customers. In order to remain compliant with the CAN-SPAM Act, if Client receives two (2) or more spam or abuse complaints from their customers for every ten-thousand (10,000) contacts via email, Stealth Data reserves the right to:
- Upon discovery, configure and deploy Client on their own dedicated IP address without notice at an additional cost to Client one-hundred ($100) per month. However, Stealth Data is not required to setup Client a dedicated IP address and reserves the exclusive right to terminate our email service entirely to Client, even if said Client has a dedicated IP address;
- Terminate Client’s ability to utilize the Stealth Data email automation system; or
- Remove and terminate Client’s subscription to the entire Stealth Data platform immediately.