Terms of Service

Effective: January 1, 2015, Last Updated: March 25, 2021

 

This Terms of Service, along with the Privacy Policy and General Data Protection Regulation EU 2016/697 Compliance Statement constitute a binding “Agreement” established by and between a Customer and/or User (hereinafter referred to also as “You”), and Woodpecker.co Sp. z o. o. (hereinafter  referred to as “Company”, “Woodpecker”, “We”), with its registered office in  Poland – Wroclaw, at  Krakowska 29D street, zip code: 50-424, entered into the National Court Register by District Court for Wrocław – Fabryczna, VI Commercial Department, under the number: KRS 0000563751, having tax identification number (NIP): PL 8992769178.

By accepting this Agreement, either by accessing or using Woodpecker’s Service, authorizing or permitting any of Your co-workers, employees, partners to access or use Woodpecker’s Service, You agree to be bound by the Agreement. By accepting the Agreement You warrant that You are at least eighteen (18) years old and may lawfully enter into contracts and form binding legal obligations.

If You are entering into this Agreement on behalf of a company, organization or another legal entity, You represent and warrant that You have the legal authority to bind this company, organization or another legal entity and its affiliates by the Agreement and that You are lawfully entitled to enter into contracts. In this case, the terms “Customer”, “User” (where applicable), “You”, “Your” shall refer to such company, organization or another legal entity and its affiliates. If You do not have such authority, or if You do not agree with this Agreement, You must not accept this Agreement and shall not use any of Woodpecker’s Services.

DEFINITIONS

All capitalized terms used herein will have the meanings set forth below:

“Account” means the access to the Service enabled with personalized login and password.

“Agency” is a Customer who activates an additionally payable module in the Service that allows for creating and connecting sub-accounts under the Agency’s Account as well as enabling the Agency’s clients to use the Service as Customers and/or Users through the Agency’s Account.

“Agency Account” is the Agency’s account in the Service that enables the management of sub-accounts within the Agency’s Account.

“Agreement” means this Terms of Service, Privacy Policy as well as General Data Protection Regulation EU 2016/697 Compliance Statement. The Agreement may be extended to cover Non–Disclosure Agreement or Data Protection Addendum upon individual establishment of both Parties.

“Customer” means any person or entity who uses Woodpecker’s Service, has access to an active Service Account regardless of its version (Trial or Premium) and has the admin’s permissions within the Account.

“Personal Data” means personal data within the meaning of the Regulation (EU) 2016/679 of the European Parliament and of the Council of 27 April 2016 on the protection of natural persons with regard to the processing of personal data and on the free movement of such data, and repealing Directive 95/46/EC (hereinafter referred to as  – “GDPR”).

“Phishing” means the fraudulent practice of sending emails purporting to be from reputable companies in order to induce individuals to reveal personal information, such as passwords and credit card numbers.

“Pricing” means the payment rules and price at which Service shall be provided to the Customer as defined in https://woodpecker.co/pricing/ or agreed with the Customer separately.

“Prospect” means the person to whom the cold email campaign is being sent by the Customer and/or User with the Woodpecker’s Service usage.

“Service” means services developed, supplied and maintained by the Company to the Customer and/or User under the Agreement available via at https://app.woodpecker.co or https://app.usewoodpecker.com and provided in a form of a web application accessible online.

“Spoofing” means a fraudulent or malicious practice in which communication is sent from an unknown source disguised as a source known to the receiver.

“SPAM” means irrelevant and/or unsolicited bulk messages sent over the Internet communication channels, typically to a large number of contacts with no prior consent obtained from the addressees. SPAM is usually sent for the purposes of advertising, phishing, spreading malware content.

“Sub-account” means an account connected to Woodpecker under the Agency Account.

“Sub-processor” means any person or entity appointed by or on behalf of the processor to conduct actions on Personal Data processing.

“Subscription” means a model of payment offered by Woodpecker that implies that Customer and/or User can access the Service on a yearly or monthly basis upon recurring payment triggered automatically each month unless We receive a prior explicit written notice not to charge. Woodpecker Subscription may be either Premium – delivered upon payment and in line with the Pricing (“Premium Subscription”) or Trial – delivered temporarily upon free trial registration via https://app.woodpecker.co/signup (“Trial Subscription”).

“User” means any person who uses Woodpecker’s Services with the access granted by the Customer.

“Website” means the https://woodpecker.co, https://usewoodpecker.co and any subpages related to the main domains. Term Website shall also refer to the Company’s Blog related to Service accessible at https://blog.wodpecker.co hereinafter referred to as “Blog”.

 

GENERAL STATEMENTS

1. Woodpecker provides web-based Services dedicated to individuals, businesses, teams, and organizations that use outbound email outreach for business-to-business (B2B) prospecting purposes or building B2B partnerships.

2. Accepting these Terms of Service along with other required legal documents constitutes a condition to use Services and each Customer is obliged to do so before accessing Our Service.

3. Woodpecker reserves the right to refine or change features, modify functionality, suspend or terminate the Service or the Website. Such action may be taken without prior notice to the Customer and/or User.

4. You grant the Woodpecker non-exclusive, unlimited in time and territorially unlimited right to use any of Your intellectual property (including trade-marks or service-marks) and company name and display it on the Woodpecker’s Website for promotional purposes. We reserve the right to use Your intellectual property and company name as a reference for promotional purposes on the Website and for other communication with existing and prospective Woodpecker’s customers and/or users. For instance, We might list Your company on one of Our web pages or on one of the lists of Woodpecker Customers. You can withdraw the consent for Us to do so anytime. Such notification may be delivered via email to [email protected]

5. All information, content, design and methods accessible through the Services as well as through Our Website are subject to the Company’s intellectual property rights (as, for example, copyright and trademarks) and are protected as so. You shall not use, download, share such content, designs or information for purposes other than related to using the Services unless You have Our written consent to do so.

ACCEPTABLE USE POLICY

1. This Acceptable Use Policy applies to Woodpecker Services, Woodpecker Chrome plug-in extension and any URLs related to the main domains or subdomains.

2. To ensure proper maintenance of the Service, the Customer and/or User shall not misuse the Service and as a consequence, the Customer and/or User is obliged not to:

a. intentionally or unintentionally hinder the functioning of the Service, for example, by reverse engineering or hacking the Services, attempting to gain unauthorized access to the Services (or any of its portion) or related systems, networks or data;

b. overcross API requests limit causing downtime to the Service or hindering its partial operational ability;

c. misrepresent or hide the data origin, content or other information submitted to the Service, among others by Spoofing, Phishing, manipulating headers or other identifiers, impersonating anyone else or access the Services via another User’s Account without their permission.

3. The Customer and/or User shall not send via the Service content which may be deemed to be malicious, illegal or inappropriate, including but not limited to:

a. content deemed to be SPAM, Spoofing, Phishing;

b. content related to pornography, sexual content, content displaying images or texts objectively recognized as offensive or cruel;

c. content related to racism, xenophobia, discrimination, hate speech, incitement to violence;

d. content related to or inciting fraudulent behaviours.

4. The Customer and/or User is obliged to comply with this Terms of Service and subsequent documents constituting the Agreement. Woodpecker reserves the right to permanently delete the Account of a person who violates the Agreement without any prior notice and shall have no responsibility for any costs arising out of the result of such deletion.

5. The Customer and/or User is responsible for the accuracy, legality and adequacy of data entered into the Service by the Customer and/or User, data entered into the Service by Prospects, as well as for every content shared through the Service.

6. Customers and/or Users can upload documents, Prospects’ information, and other content to the Service. Customers and/or Users can then use the Prospects’ information (including Personal Data), as well as all the previously updated content to communicate with Prospects via email automated by the Service. Customers and/or Users retain all rights to all the data and content uploaded into the Service and are fully responsible for it.

7. Woodpecker shall have no responsibility for how Customers and/or Users process data (including Personal Data) inserted and gained through the Service. Upon using the Service, Customers and/or Users should obey the law of their country, as well as the law of the countries they send their emails to.

8. As a condition of using the Service the User shall:

a. as required by applicable law, provide notice to its Prospects and obtain consents if required to outreach to the persons;

b. be responsible for its employees, representatives, affiliates that have access to the Services;

c. comply with any limitations or restrictions set forth in this Agreement;

d. use the Services only in compliance with applicable law both national and international including court orders (if applicable).

8. The Customer and/or User is responsible for secure storage of passwords and logins leading to the Accounts related to the Service. Woodpecker shall have no responsibility arising out of reckless or negligent credentials storage by the Customer and/or User.

 

SERVICE FUNCTIONALITY DESCRIPTION

1. Woodpecker allows Customers and/or Users to send “Opening Messages” which are the messages starting a conversation with a Prospect, as well as “Follow-ups” which are reminder messages sent to Prospects in case they did not reply to the Opening Messages. The only internal Woodpecker limit concerning the number of messages sent a day is related to a minimum sending interval. However, the Customer and/or User should check the limits set by their email account provider and make sure they will not exceed that daily limit of sent messages (including the number of Opening Messages as well as Follow-ups). The number of messages sent per day may affect domain reputation and cause a potential loss in this regard. Woodpecker shall have no responsibility for such actions as the choice concerning sent content and sending speed is fully in the discretionary power of the Customer and/or User.

2. After setting up the Account, for the period defined by the Company, the Customer and/or User has the right to a Trial period which involves free access to all currently available Woodpecker features and functions (including both Opening Messages and Follow-ups). As the Customer and/or User opts in for a “Premium Subscription” to Woodpecker their Account will be referred to as “Premium Subscription”. The Service is then chargeable in terms determined in the Pricing.

 

GDPR COMPLIANCE

1. Woodpecker stays compliant with GDPR and expects Customers and/or Users of the Service to respect the principles of the GDPR while processing the Personal Data of the EU citizens. More details about how Woodpecker complies with GDPR and what actions You should take as the Customer and/or User to be compliant with it in Our “GDPR Compliance”.

2. All content sent from Customers’ and/or Users’ via Woodpecker’s Service must be sent within the scope of B2B relations and must not be sent to Prospects who expressed their wish to be excluded from further correspondence.

3. Access to Customer and/or User data (including Personal Data).

a.  Customer and/or User has the right to access their Personal Data in order to exercise their right granted by the GDPR. Customer and/or User has the right to access their Personal Data, receive a copy of it, to rectify, delete Personal Data, limit Personal Data processing, object to Personal Data processing and transfer, lodge a complaint with the supervisory body and the right to withdraw consent (if given) to the processing of Personal Data. A detailed description of how to change Your data (including Personal Data) or ask for its removal can be found in Our Privacy Policy.

b. Woodpecker will not access or modify any piece of data (including Personal Data) or content unless it is necessary to provide the Service, prevent or resolve technical problems with the Service operation or at the Customer’s and/or User’s request with regard to support matters. Woodpecker will not disclose any part of its Customers and/or Users data (including Personal Data) or content, except as described in the Privacy Policy and this Terms of Service.

4. We reserve the right to contact You within 6 months after the end of Your Premium or Trial Subscription to present you our Service updates and new benefits. You are entitled to opt-out from such communication by contacting Us via [email protected]

5. Woodpecker processes the following types of data as a data controller: Customers’ Personal Data, Users’ Personal Data and Agencies’ Personal Data (if applicable) i.e. name, last name, email address, contact details, basic billing information on invoices and settlements.

6. Customer processes the following types of data (including Personal Data) as a data controller: any Prospects’ Personal Data that is inserted into or uploaded to the Service, any other Personal Data inserted into or uploaded to the Service notwithstanding that inserted by the Customer, User or Prospect. The Customer is obliged to process (including obtaining) Personal Data that they introduce into the Service in accordance with applicable law and the GDPR.

7. Woodpecker processes the following types of data as a data processor: Prospects’ Personal Data that are inserted into or uploaded to the Service, any other Personal Data inserted into or uploaded to the Service notwithstanding that inserted by the Customer, User or Prospect.

 

 

TECHNICAL ACCESS REQUIREMENTS

1. Woodpecker’s Services may be accessed by:

a. PC, minimal operating system Windows XP

b. MAC, minimal operating system OSX 9

2. Recommended browsers: Chrome, Firefox or Safari.

3. Woodpecker shall not be responsible for any difficulties or obstacles concerning operational functionality on browsers and systems different than listed above. In case of any questions and concerns regarding technical details, please contact [email protected]

PAYMENTS, TERMINATION AND REFUND POLICY

1. Customers shall not be charged for the free Trial Subscription,

2. Fees are charged after the Customer and/or User opts in for a Premium Subscription.

3. Woodpecker does not require any payment details from the Customer and/or User who wish to start the free Trial Subscription.

4. Customers shall be charged for slots and add-ons used in their Premium Subscription on the terms defined in this Terms of Service and Pricing or in a separate arrangement with Customer.

5. As Woodpecker’s Premium Subscription Customer You agree to pay Woodpecker the amount that is specified in the Pricing (according to the number of slots and add-ons You use), and You authorize Woodpecker to bill Your payment instrument in advance on a periodic basis in accordance with this Terms of Service and the Pricing.

6. You can also use Woodpecker’s prepaid Vouchers – the form of payment that allows You to prepaid for the Service you will use.

7. If You dispute any charges, You must let Woodpecker know within sixty (60) days from the date that Woodpecker invoices You.

8. As Woodpecker collects payments it may have limited access to the Customer’s billing information. All payments are processed by the external third-party service provider, who ensure high-security standards.

9. Subscription may be paid on a monthly or yearly basis. Current pricing details are accessible in Our Pricing at https://woodpecker.co/pricing/

10. Premium Subscription is valid for an unspecified period of time. Each party may terminate the Agreement without giving any reason. Upon the termination, the Customer and/or User will be able to access their Account for the period which has been covered by the last payment.

11. The Agreement between the Customer and Woodpecker may be terminated upon a written request delivered via email to [email protected]

12. The Customer may also cancel specific slots and/or add-ons or delete the whole Account himself in the Service. Please note that cancelling the slot or add-on removes it from the Service, but not from the entire Company’s system.

13. Once You cancel the Account in the Service We may permanently delete Your Account and all the data associated with it, including Your emails from the Service.

14. If a legal provision obliges us to do so We may process Personal Data despite the cancellation request.

15. If You do not log in to Your Account for at least 12 months We may treat Your Account as inactive and permanently delete the Account and all data associated with it.

16. We reserve the right to change Our prices during the term of this Agreement. If We do change prices We will provide notice of the change – at Our discretion – on Our Website or via email to You. To continue to use the Service after the price change becomes effective and constitutes Your consent for the amended amount.

17. All amounts paid during the Subscription are non-refundable.

18. The only exception from being non-refundable is when Woodpecker cancels Your Account without a cause. In such a case Woodpecker may refund a prorated portion according to Your billing cycle. Woodpecker will not refund any payment if there is a cause for the Account cancellation, such as a violation of this Terms of Service or Our Privacy Policy.

USER AND WOODPECKER RIGHTS

1. Intellectual Property. Except for rights expressly granted under this Agreement, nothing in this Agreement will function to transfer any of Woodpecker’s Intellectual Property rights to the Customer and/or User, and Woodpecker will retain exclusive interest in and ownership of its Intellectual Property.

2. The Customer and/or User is obliged to respect Company’s Intellectual Property rights whether using the Service, the Website. You may only use Our brand assets with Our consent. We reserve the right to review email campaigns sent via the Service.

3. We may view the content You enter to the Service in case We need to solve a technical or functional issue or in case We suspect that You may violate the Agreement.

4. Furthermore, Woodpecker reserves its right to limit data retention time in case of Accounts with no active sending for more than 12 months. Accounts and Sub-accounts with no active sending for more than 12 months may be scheduled for deletion. Furthermore, in the case of Sub-accounts and no active sending for more than 12 months, Woodpecker reserves the right to switch the Sub-account into inactive mode.

5. Customer and User represent and warrant that they either own or have the right to use all of the content they include, upload or send via the Service. Woodpecker shall not be responsible for any of the data, text, numerical data, graphic materials, links and other types of content uploaded, stored by Customers and/or Users within their Accounts or sent to their Prospects. The Customer and/or User retains ownership of all materials uploaded to the Service. Such materials can be disclosed by the Company only as described in this Terms of Service and Privacy Policy.

 

LIABILITY

1. Woodpecker does not guarantee compatibility of offered Services with the software of other providers. Customer and/or User shall bear full responsibility for the choice and consequences following the use of other software in combination with the Service.

2. These Terms of Service are in lieu of all warranties, conditions, undertakings, terms and obligations implied by statute, common law, trade usage, cause of dealing or otherwise, all of which are hereby excluded to the fullest point of law.

3. In no event and under no circumstances Woodpecker, its directors, members, employees or agents shall be liable to You for any direct, special, indirect or consequential loss or damages, or any other damages of any kind, including but not limited to loss of use, loss of profits or loss of data, whether in an action in contract, tort (including but not limited to negligence) or otherwise in any way connected with:

a. Your use or inability to use the Website, the performance of the Website;

b. any errors or omissions in the Website’s operation; any action was taken in connection with the Service;

c. any errors or omissions in the Website’s operation; any action was taken in connection with the Service, copyright or other intellectual property owners;

d. any damage to any Customer’s and/or User’s computer, mobile device, or other equipment or technology including, without limitation, damage from any security breach or from any virus, bugs, tampering, fraud, error, omission, interruption, defect, delay in operation or transmission, computer line or network failure or any other technical or other malfunction, including, without limitation, damages for lost profits, loss of goodwill, loss of data, stoppage, the accuracy of results, or computer failure or malfunction, even if foreseeable, or even if parties have been advised of or should have known of the possibility of such damages, whether in an action of contract, negligence, strict liability or tort (including, without limitation, whether caused in whole or in part by negligence, higher power, telecommunications failure, or theft or destruction of the Service).

 

CHOICE OF LAW

1. Parties agree that any disputes arising out of or in connection with this Agreement and the Service shall be resolved amicably.

2. Otherwise any disputes shall be solved by a court having jurisdiction over the registered office of the Company.

3. This Agreement shall be governed by, and construed in accordance with, the laws of Poland.

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