Updated on 5/28/2020.
This AGREEMENT is represented outside Brazil by FORSTER INVESTIMENTS LLC (PITCHWINK) – EIN 47-540346, herein referred to as the CONTRACTED. You, the individual or company, are referred to as the CONTRACTOR.
Clause A – Scope
PITCHWINK is the CONTRACTED trademark and refers to the digital mobile marketing and connectivity communication platform that provides technology services where the CONTRACTOR can manage multiple communication channels and purchase services through PLANS and on-demand (when available). If the CONTRACTOR does not agree with the terms hereof, DO NOT click the “I have read and accepted” button in the “Test Account Creation” area or any platform area (https://www.pitchwink.net) where it is present, and DO NOT use the services available on our platform or website. If the CONTRACTOR uses the services provided by the CONTRACTED during or after the trial period, it will be giving an accepted, waking up and agreeing to the terms contained in this Term of use.
. Clause B – DEFINITIONS
The terminologies mentioned below are present in this AGREEMENT and indicate the following definitions:
Digital Marketing and Connectivity Platform offered by the CONTRACTED which provides technological services where the CONTRACTOR can administer and manage multiple communication channels, carry out campaigns, social media posts, automation processes, creation of emails and Landing Pages, contact management, graphics, among other functions performed on the Panel called from the pitchwink.net domain.
The geographical area in which a mobile device or cellular device has reception/coverage by the radio system and communication antenna, the base radio station.
Vehicles where data transmission occurs, such as SMS, MMS, Voice, Email, QR Codes, Notifications, or any other channel on the platform.
It is the PITCHWINK sale and licensing modality, in which the CONTRACTOR is entitled to use it for one month, as well as the set of functions that the CONTRACTOR is entitled to use under the PLAN chosen and contracted by it for one month.
Set of activities and resources administered and managed by the CONTRACTOR within PITCHWINK.
Currency used to contract some PITCHWINK services.
CREDITS, which are available together with the PLAN functions, have the same validity as the PLAN of one month, and those not used during this period will be removed from the CONTRACTOR ACCOUNT. Already the CREDITS purchased in PITCHWINK Online Store, separated from PLANS, are valid for one year from the purchase, and after this period, those not used will be removed from the CONTRACTOR ACCOUNT.
The individual who explicitly authorizes the CONTRACTOR to send MESSAGE(NS) to their devices of any kind.
Identification information, which gives the CONTRACTOR access to the PITCHWINK Dashboard.
Short text messages (SMS), Multimedia messages (MMS), Voice messages recorded or vocalized via text converter (TTS), Email messages, Social Nets messages like WhatsApp / TeleGram / WeChat and Push messages (Notifications sent via a data connection to devices that can receive them).
MOS (Mobile Operating System)
The operating system that manages mobile devices like tablets, smartphones, PDA, and others. Popular brands include Android, Blackberry, IOS, Windows Phone, Firefox OS, Sailfish OS, Symbian, Tizen, Ubunto Touch OS, among others.
Cellular mobile phone company(ies) (SMP / SMC); E-mail Box Providers
Email Box Providers
Mailbox providers that receive, send, accept, and store email from end users.
Security code for PITCHWINK authentication of the CONTRACTOR.
The practice of sending unsolicited MESSAGES and / or NOT authorized by the RECIPIENT(S);
Clause C – Contracting Object
The CONTRACTED has the purpose of licensing a Test ACCOUNT, during 7 (seven) days, and maybe extended, if available at the time and the CONTRACTED’s discretion.
During this period, the CONTRACTED will freely assign 10 (ten) CREDITS to the CONTRACTOR to assist the use of the communication channels and resources available on PITCHWINK. It is solely at the discretion of the CONTRACTOR, which PITCHWINK functions and channels will be made available during the testing period.
Once the CONTRACTOR buys a PITCHWINK PLAN or CREDITS, it agrees to the obligations hereunder in “CLAUSE E – OBLIGATIONS OF THE CONTRACTOR”. Similarly, the CONTRACTOR will be adhering to “CLAUSE D – OBLIGATIONS OF THE CONTRACTED”.
Clause D – Obligations of the CONTRACTED
THE CONTRACTED undertakes to:
- Provide the CONTRACTOR with access data: ACCOUNT, LOGIN, AND PASSWORD; for PITCHWINK access
- Provide a secure technology environment with PITCHWINK access availability equal to or greater than 99.5%.
- Ensure the sending of the MESSAGE(S), unless unforeseeable or force majeure.
- NOT USE the records and/or MESSAGE(S) sent by the CONTRACTOR ACCOUNT, for purposes other than the object of this CONTRACT.
Clause E – Obligations of the CONTRACTOR
THE CONTRACTOR undertakes to:
- Obtain express prior consent from RECIPIENTS who will receive MESSAGES sent via PITCHWINK.
- Be fully responsible for the content of the MESSAGE(S) sent. Responding for it in or out of court, and therefore disclaims the CONTRACTED unconditionally, from any liability whether joint or subsidiary, for any and all claims, grievances, representations and lawsuits of any kind or nature regarding the services and content provided by the CONTRACTOR including the recipients’ claims in the event of disclosure of their confidential information.
- Ensure the CONTRACTED that the contents of the MESSAGE(S) do not violate the intellectual property rights of third parties (regardless of country), trademarks, trade secrets or other rights of third parties, including the dissemination of ideologies, motivations policies, religious advertising, currents of thought, disclosure of operator services, pornography, or content inappropriate for minors under 18 years of age. The same applies to the issue of the development and application of computer systems used and which also do not constitute an infringement of any legal provision, keeping the CONTRACTED aware of any future doubts or disputes regarding the provisions of the previous clause; therefore, their liability, whether joint or several, is excluded.
- The CONTRACTOR undertakes to obtain, from the RECIPIENTS of the MESSAGES, the prior authorization to send them. The CONTRACTOR must obtain through the authorization, using OPT functions available on PITCHWINK for channels that require this type of permission from the RECIPIENTS.
- The CONTRACTOR undertakes to include in the PITCHWINK Contact database only RECIPIENTS who have spontaneously engaged through its website, filling out forms, QR-Codes, sending messages to engage, or any method where the data provided to the CONTRACTOR has occurred voluntarily.
- It is expressly forbidden to use RECIPIENTS data listings purchased or obtained from third parties, even for free, without the RECIPIENTS’ consent.
- The CONTRACTOR shall inform the RECIPIENTS, which will be stored in the PITCHWINK database information such as geolocation, IP, device type, browser, operating system, device graphic capacity, interaction with the sent MESSAGE objects, as well as date and time of interactions with them.
- The CONTRACTOR agrees that none of the data stored through the RECIPIENTS ‘interaction with PITCHWINK functions may be provided to any third party in any way or for any purpose whatsoever, even if for free.
- Report to the CONTRACTOR immediately the theft, the disappearance of the password(s) of access to PITCHWINK.
Clause F – REMARKS
- The CONTRACTOR declares to be aware that the service object of this CONTRACT will be available in the COVERAGE AREAS, except for the technical impossibilities of the respective OPERATORS. This caveat applies to SMS, VOICE, EMAIL, and other channels on PITCHWINK when MESSAGE is opened on a mobile device.
- The CONTRACTED PARTY will not be responsible for any fraud that may occur in the path traveled by the MESSAGES after leaving PITCHWINK. Similarly, the CONTRACTED is not responsible for ensuring confidentiality, as well as for the occurrence of interception of information, when it is traveling on the OPERATORS network, in the case of SMS, VOICE and mobile devices that will receive emails.
- The CONTRACTED is solely responsible for the transfer of the MESSAGE(S) sent by the CONTRACTOR to the OPERATORS, and cannot be held responsible for receiving the RECIPIENTS, due to the occurrence of any fact or situation that prevents such activity, such as: like:
- absence or degradation of permanent or temporary coverage provided by the local mobile phone company;
- due to equipment failure of these companies;
- for power failure and or transmission;
- due to mobile service locks;
- find the recipient in the analog coverage area;
- the RECIPIENT with the handset off or out of the coverage area of the OPERATORS;
- by the cancellation of activity with the OPERATORS opt-out mechanism or programs;
- for any other technical impossibility;
- The CONTRACTED is not responsible for any claims, complaints, representations, and lawsuits of any kind whatsoever regarding the content of the MESSAGE(S) to be sent, which is the sole responsibility of the CONTRACTOR.
- The CONTRACTOR declares that it is aware that the transmission to all RECIPIENTS at the same time may be delayed by a few hours if there are problems in the transmission equipment of the Internet or the OPERATORS.
- Only MESSAGE(S) will be sent, as conditions below:
- SMS – up to 160 (one hundred and sixty) alphanumeric characters and, 70 (seventy) characters if the MESSAGE is in Unicode (double character, in languages such as Japanese, Chinese and others that require Unicode characters), both situations including the sender ID inside the MESSAGE;
- VOICE – up to 30 seconds maximum;
- EMAIL – up to 100,000 characters.
- The CONTRACTOR is aware that the amount of characters that can be received by SMS depends on the RECIPIENT’s model and mobile phone brand.
- The CONTRACTED shall not be liable for any result, business, service, or any other activity not carried out or not performed due to non-receipt of the MESSAGE(S) by the RECIPIENTS(S).
- Access to PITCHWINK must be via an Internet connection.
- The connection costs of any kind, like (monthly fees, telephone traffic, necessary hardware, are entirely borne by the CONTRACTOR.
- The MESSAGE(S) shall be generated only from the system(s) developed and used by the CONTRACTOR.
- The CONTRACTOR is responsible for any HTML code that is developed outside the CONTRACTED’s platform. The CONTRACTED is responsible only for the codes created through the HTML editor of PITCHWINK and not of third party tools or programming. In case of any incompatibility, errors, or misleading in codes made outside the outside tool, the CONTRACTOR will be responsible.
- The CONTRACTOR undertakes to bear any and all expenses and / or penalties imposed on the CONTRACTED due to non-compliance with the clauses set forth herein, being obligated, including to meet the demands of the OPERATORS and RECIPIENTS.
Clause G – CONCESSIONS
- To use the PITCHWINK Test ACCOUNT, the CONTRACTOR will not pay the CONTRACTED any amount.
- To acquire credits for the use of PITCHWINK (prepaid), the CONTRACTOR shall opt for the definitive CONTRACT, accessing the PITCHWINK, and choose the PLAN that is most suitable for him.
- CREDIT unit amount is set to table daily on PITCHWINK.
- 10 (ten) CREDITS will be granted to the CONTRACTOR, for evaluation of the test ACCOUNT, during the term informed in clause (B), which may be used in the channels released for testing.
- It will be debited from the CONTRACTOR’S CREDIT inventory any MESSAGE(S) passed on by PITCHWINK, regardless of RECIPIENT receipt or carrier error.
Clause H – Social Media Posting:
- The posts that come associated with PLANS have the same validity as the Plan purchased.
Already, the Posts purchased on every purchase outside PLANS will have an expiration date according to the following table:
- 1 Post, up to 30 calendar days after Payment.
- 4 Posts, up to 45 calendar days after Payment.
- 8 Posts, up to 60 calendar days after Payment.
- 64 Posts, up to 180 calendar days after Payment.
- 128 Posts, up to 365 calendar days after Payment.
Note:Quantities purchased on different purchases do not feature a new range in the validity table.
- Unused postings will expire and will no longer be usable.
- There will be no refund for Posts canceled due to expiration.
- It is considered a chargeable Post, all that served within a specific campaign for a Social Media.
- Note that posting to different Social Media within the same campaign counts as two different posts.
- Within the same campaign and for the same Social Media, a single Post is charged.
With this, the user can make corrections without having to pay again for it. It should be noted, however, that these corrections have five calendar days to be made from the first Post on the said Social Media. From the sixth calendar day, even if it is the same campaign and the same Social Media, one postage of the amount available will be debited if a new one made.
- After posting on the social network, if the CONTRACTOR wishes to boost its post on the social network, it should contact the CONTRACTED to hire a consultant to perform this work.
- It is important to note that the cost of publication does not include investment to boost the campaign in any of the networks.
- For the creation of the campaign of any social network, PITCHWINK provides a responsive HTML editor, video repository, QR Codes repository, group registration and contacts that can be inserted into the post and captured within the platform, images with links and also several graphics. All are generated because the platform tracks any clicks made on posts on the social network.
Clause I – PitchWink WorkFlow
PWW – These are all functions contained in PitchWink WorkFlow.
Action – Represents a box in PWW, which contains a process to be executed. For example, a call to an on-demand SMS campaign.
Level – It can represent an initial Action, or an Action derived from another, that is, a Trigger in the Previous Action triggering a new Action. This new Action represents a Level Plus.
- License Form: PWW Licensing is for a Single Company or a Single (Natural) Person. For Companies using PITCHWINK to provide services to third parties (other companies or individuals), PWW must be used for each of them on different ACCOUNTS, and it is not allowed to use the same ACCOUNT to serve different third parties.
PWW is licensed by number flows for one month of use. For PLANS that have PWW, they have the same validity as PLAN.
- PWW Non-Payment: Non-payment immediately implies the interruption of the execution of any PWW Action for the ACCOUNT in question. If PWW is no longer paid for more than two months, all templates created in PWW for the ACCOUNT will be deleted, and the CONTRACTOR must redo their templates in case of payment resumption.
Clause I: WHATSAPP MESSAGES
PITCHWINK sells WhatsApp messaging service for a time period, on exclusive lines and in two modalities.:
1 – BASIC: Sends individual and group messages, including text, images, and files, limited to 100 messages per Group per day or 100 individual messages. Messages to Groups count as one (1) message regardless of the number of recipients the Group contains.
For example: If the user has 100 Groups with 200 contacts each, up to 20,000 messages per day can be reached.
This modality does not allow to receive replies of the sent messages, nor the choice of personalized avatar, nor can be chosen the line number, which will be provided by the CONTRACTOR at its discretion.
2 – PROFESSIONAL: Send individual and group messages, including text, images, and files, limited to 1000 messages per Group per day or 1000 individual messages.
Messages to Groups count as one message regardless of how many recipients the Group contains.
For example: If you have 1000 Groups with 250 contacts each, up to 250,000 messages per day can be reached.
This mode allows you to receive both individual and group responses and is the ideal mode to connect to PITCHWINK WORKFLOW (PWW).
It is also allowed to customize the linked avatar of the line number, as well as to choose the line number to use.
Please be aware that WhatsApp may cancel or block the contracted line at any time and for any reason it deems appropriate.
In this case, the CONTRACTED undertakes to provide another line in replacement, and in no event may the CONTRACTED be liable for the interruption and damage arising from this block.
In all modalities, sending messages to individual RECIPIENTS should be preceded by opt-in (Authorization to receive MESSAGES). When sending to Groups, opt-in is not required as the RECIPIENTS have previously joined the Group.
The nonrenewal of the use of the lines implies immediate interruption of service.
Clause J – CONFIDENTIALITY
- Both the CONTRACTED and the CONTRACTOR undertake, by themselves or by any person related to them, to maintain confidentiality and confidentiality about any information, documents or technical data owned by the other Party, whether or not legally protected, to which they have access, whether by virtue of this engagement as a result of staying in its facilities.
- This confidentiality obligation will survive 03 (three) years from the date of termination or termination of this CONTRACT. The parties undertake to respect the confidentiality of the data and information that the other party provides or facilitates for the performance of this CONTRACT as well as everything related to the service contracted or its execution. In the event of a breach of this obligation by either party or any of its employees, agents or representatives, the other party shall be entitled to claim and claim, under applicable law, the indemnity for all damages caused.
Clause L – TERMINATION
- Failure to comply with any obligations contained in this CONTRACT.
- The occurrence of an act of God or force majeure, regularly proven, impeding the provision of the service.
- Bankruptcy, winding up or liquidation of both parties.
- This CONTRACT ends 7 (seven) days after its creation, this being the total time of use of the TEST ACCOUNT.
- The CONTRACT has an indefinite term if the CONTRACTOR joins any PLAN, and the PLAN paid has monthly validity and does not need to be renewed if the CONTRACTOR no longer wishes it.
- After 2 months without payment of any PLAN, the CONTRACTED may delete all data generated by the CONTRACTOR from its database.
Clause M – GENERAL PROVISIONS
- No employment relationship or outsourcing of services shall be established between the employees of the CONTRACTED and the CONTRACTOR.
- Any changes in the systematic or routine of the services, which may result in the amendment of this CONTRACT, will be processed by the CONTRACTED.
- The liability of the parties ceases in the event of God or force majeure and by governmental acts.
- Tolerance or non-exercise by any of the parties of their rights under this CONTRACT or the law generally shall not waive such rights or novation of obligations.
- Failure to renew the PLAN on its due date implies the immediate unavailability of PITCHWINK functions. This includes restrictions on the use of any APIs, even those regarding the sending of MESSAGE (NS), regardless of whether there is a balance of CREDITS purchased outside PLANS, which may again be used upon adherence to a new PLAN, and provided such CREDITS have not exceeded one year of your purchase.
- There are PLANS that have their price quoted in US dollars. For the CONTRACTOR to check the price of the PLANS in US dollars, just change the currency in the currency combo in the upper right corner of the PITCHWINK PANEL Virtual Store. Therefore, the amount to be charged in each country will be converted into the currency used by PITCHWINK in the respective country, depending on the official quote of the US dollar at the time of issuing the next charge.
- The PLANS will always be charged ten days before their expiration date in case of payment option in BULLET or WIRE TRANSFERS, and on the due date in case of recursive payment through PAYPAL. In case of payment option through PAYPAL, the exchange adjustment, if any, will be made six days before the billing.
- CREDITS acquired before September 14, 2019, may be used normally in all PITCHWINK functions, even if the CONTRACTOR has not yet chosen a PLAN. However, no purchase can be made before the expiration of these CREDITS. From the moment there is adherence to any PLAN, the CONTRACTOR can no longer go back and must always have a PLAN in place to use the PITCHWINK.
Clause N – CHANGES IN TERM OF USE
- The CONTRACTED may, at any time, freely change this TERM and at each change to it, the CONTRACTOR must re-accept it before logging in to the PITCHWINK platform.
Clause O – LEGAL ISSUES
To resolve the issues arising from this CONTRACT, the court of the city of Tampa in Florida shall be competent, to the exclusion of any other, however privileged it maybe.
FORSTER INVESTMENTS LLC (PITCHWINK)
By checking the box [I read and / or I accept] and confirming it, you will digitally sign the Test ACCOUNT Usage CONTRACT and further use of PITCHWINK if you choose to adhere to any of the PLANS or purchase CREDITS, fully agreeing with its content.