Consulting Terms of Service - CToS
Applicable as of 23.11.2023
A. Introduction
1. Definitions
1.1. “SplitMetrics”: SplitMetrics Inc, a private corporation incorporated under the laws of Delaware under No. 6041339, with its place of business at 108 W. 13th Street, Suite 100, Wilmington, DE (Delaware), 19801.
1.2. “App Store Marketing Services (ASMS)”: Consulting services offered by SplitMetrics.
1.3. “Consulting Terms of Service (CToS)”: SplitMetrics’s terms that apply for contracts for the provision of ASMS or Individual Contracts.
1.4. “Contractual Partner”: Any legal or natural person entering into any kind of legal relationship with SplitMetrics.
1.5. “Data Security Policy (DSP)”: SplitMetrics’s policy on data security and technical aspects of data procession that applies for contractual relationships with SplitMetrics.
1.6. “Individual Contracts (ICs)”: Agreements for the provision of goods and/or services by SplitMetrics to the Contractual Partner that are not either Plans or ASMS.
1.7. “Plans”: Subscriptions for the usage of the Tool, either for free or for a fee.
1.8. “Privacy Policy (PP)”: SplitMetrics’s privacy policy that applies for contractual relationships with SplitMetrics.
1.9. “Tool”: App Radar ASO Tool.
1.10. “Tool Terms of Service (TToS)”: SplitMetrics’s terms that apply for the usage of the Tool.
1.11. “Website”: www.appradar.com and all its sub-websites.
2. Area of Application
2.1. These Consulting Terms of Service (henceforth “CToS”) shall apply for contracts concluded between SplitMetrics and the Contractual Partner for the provision of ASMS or ICs. SplitMetrics offers ASMS and services based on ICs on the basis of these CToS. By entering into a contract with SplitMetrics, the Contractual Partner agrees to be bound by these CToS.
2.2. Contractual Partners’ Terms of Service (and/or Terms of Use / Terms and Conditions etc.) are expressly not part of the contract, even in case SplitMetrics has not expressly objected to them.
2.3. These CToS may only be waived by written agreement between SplitMetrics and the Contractual Partner. Verbal deviations are not binding on SplitMetrics.
2.4. These CToS shall always constitute an integrated part of any contract for ASMS or Individual Contracts, that will be negotiated and discussed between SplitMetrics and the Contractual Partner beforehand and signed by the Contractual Partner. Specific contract details that are laid down in these contracts (f.e. TOP, Timeline of Delivery, Payment Terms, etc.) shall overrule these CToS. Issues not regulated therein will be covered by this CToS. Thus, the provisions of a written agreement negotiated between SplitMetrics and the Contractual Partner shall take precedence over the provisions of these CToS.
2.5. Issues not regulated by a written agreement or these CToS shall be regulated by the applicable law, in this order.
3. Other Terms and Policies
3.1. If the Contractual Partner creates an account to use the Tool, the Tool Terms of Service (TToS) shall apply.
3.2. In addition to these CToS, SplitMetrics’s Privacy Policy (PP) and Data Security Policy (DSP) apply.
4. Future Transactions and Changes to these Terms
4.1. The Contractual Partner can review the most current version of the CToS at any time on this Website. SplitMetrics reserves the right to update, change or replace any part of these CToS by posting updates and/or changes to the Website.
4.2. It is the Contractual Partner’s responsibility to check this Website periodically for changes. The Contractual Partner’s continuation of any contract with SplitMetrics following the posting of any changes constitutes acceptance of those changes.
4.3. These provisions also apply to other terms and policies referenced above.
B. App Store Marketing Services and Individual Contracts
5. Basic Provisions
5.1. SplitMetrics reserves the right to demand original and written documents from the Contractual Partner, including but not limited to all and any “Know your Customer” (“KYC“) documentation.
5.2. SplitMetrics shall be entitled, at its option, to use subcontractors in whole or in part to fulfill any contract.
5.3. SplitMetrics shall attempt to adhere as closely as possible to the agreed deadlines for the performance of the services. Unless expressly agreed as binding, delivery or service deadlines are only approximate and non-binding. If unforeseeable circumstances or circumstances independent of the will of the parties occur, such as, for example, all cases of force majeure, which hinder compliance with the agreed deadline for delivery or performance, this shall be extended by the duration of these circumstances in any case. These circumstances shall also entitle the Contractual Partner to an extension of the deadline if they occur with subcontractors.
5.4. The Contractual Partner is required to cooperate with SplitMetrics to make possible the performance of the agreed services. The Contractual Partner shall make available to SplitMetrics in a timely and complete manner all information and documents necessary for the provision of the service. The Contractual Partner shall inform SplitMetrics of all circumstances which are of importance for the execution of the services, even if these only become known during the execution. The contractual partner shall bear the costs incurred if work has to be repeated by SplitMetrics or is delayed as a result of incorrect, incomplete or subsequently changed information. If the services cannot be provided due to a default of the Contractual Partner, SplitMetrics is entitled to charge the full contractually agreed fee.
6. Offers, Conclusion, Term and Termination
6.1. The Contractual Partner shall receive an offer by SplitMetrics containing the main points of the offered services. If an offer does not contain a specific period of validity, offers shall remain valid 3 months from the date of the offer.
6.2. The offer shall be signed by SplitMetrics’s Chief Executive Officer.
6.3. A contract is concluded once the Contractual Partner returns the signed offer to SplitMetrics. Changes to the offer, additional requests etc. constitute a counter-offer and a contract shall only be concluded once SplitMetrics accepts changes to the original offer in writing. Written approval of an offered service from SplitMetrics via email is also binding. For smaller add-on projects an offer by SplitMetrics can also be made via email text.
6.4. The period for contracts on ASMS and ICs is as per the concluded written agreement. They commence on the date specified in the contract if nothing is specified on the day following the mutual signing by all parties. Contracts for specific time periods automatically terminate on the termination date, unless the Parties agree in writing to prolong the contract.
6.5. Contracts for an indefinite period of time may be terminated by either party in writing with a period of one month (receipt of termination notice)Â unless specified otherwise in the contract. The minimum contract period is 3 months unless a different minimum period is agreed upon in writing.
6.6. Contracts for the provision of specific goods or services end once the contract is fulfilled.
6.7. SplitMetrics may terminate/void a contract at any time with immediate effect in case of gross contract violation by the Contractual Partner.
7. Tool Usage
7.1. To carry out its services, SplitMetrics may use third-party tools as well as the Tool. The Contractual Partner is required to sign up to the Tool and connect their apps in order for SplitMetrics to carry out its performance. The Contractual Partner must accept the TToS.
7.2. If the Contractual Partner does not want to connect their apps, SplitMetrics will still charge the full amount stated in the offer and will only carry out the services possible without connection.
8. Prices and Fees
8.1. Provided that nothing else is agreed in writing, the prices are given in Euro and do not include value-added tax or other taxes or encumbrances. Lump-sums are only applicable if SplitMetrics confirms this in writing. Any banking fees or other such charges are to be borne by the Contractual Partner.
8.2. SplitMetrics reserves the right to change prices accordingly in the event that the Contractual Partner requests changes (i.e. deviations from the agreed upon offer) to the services performed. SplitMetrics will inform the Contractual Partner in advance of the costs connected with the performance of such a request.
8.3. Any services not expressly included in the offer shall be billed separately if the performance is requested by the Contractual Partner.
8.4. Prices are based on the costs at the time of the first price offer. Should the costs increase due to changed requirements or general conditions up to the time of the provision of the service or within the project execution, SplitMetrics shall be entitled to adjust the prices accordingly. However, the Contractual Partner shall be informed thereof in advance.
8.5. SplitMetrics will not send any employees on site unless expressly agreed upon in writing. If employees of SplitMetrics are required to travel, such travel time is always charged as working time. Costs for accommodation, meals, and other travel expenses are charged separately and are not part of the costs for travel time unless agreed beforehand in writing.
9. Terms of payment
9.1. Payment terms are generally contained in the offer.
9.2. Unless stated otherwise in the offer, SplitMetrics may request an advance payment of 50% of the offer sum before commencing the service performance of one-time services.
9.3. Unless stated otherwise in the offer, SplitMetrics may issue the bill for one-time services immediately once a one-time service is completed. Ongoing services are billed monthly in advance. Deviating payment terms must be agreed upon in writing.
9.4. SplitMetrics is entitled to send the Contractual Partner invoices in electronic form and the Contractual Partner expressly agrees with this form of delivery.
9.5. Invoices shall be due without any deduction in the agreed currency within 14 days of the invoice date unless stated otherwise on the invoice.
9.6. Payment shall be deemed made on the day it is fully credited to SplitMetrics’s account without any deduction.
9.7. The Contractual Partner is not entitled to withhold or offset payments on account of warranty claims or other counterclaims.
9.8. The Contractual Partner may be required to purchase a Tool license and enter into a billing plan for the provision of ASMS or service set out in ICs.
10. Late Payment
10.1. If the Contractual Partner does not effect due to payments on time or fully (or is late with any other duty), SplitMetrics may, without prejudice to its other rights (a) postpone the performance of its own obligations until such payment or other performance has been effected and claim a reasonable extension of the performance period; and (b) declare due all outstanding claims from this or other transactions and charge default interest for these amounts from the respective due date in the amount of 9,2% above the base interest rate.
10.2. Detriments suffered by SplitMetrics that exceed such compensation may be claimed additionally, including fees for payment reminders (a fee of EUR 40, – may be charged in addition to the default interest).
11. Enticement
11.1. The Contractual Partner may not, directly or indirectly, entice employees or contractors of SplitMetrics to terminate their employment or other contracts during the duration of contractual relations between the Contractual Partner and for a period of 6 months thereafter. This applies regardless of whether enticement efforts actually lead to a termination of an employee of SplitMetrics.
11.2. In the event of a breach of this provision, the Contractual Partner shall owe to SplitMetrics a contractual penalty amounting a full year’s salary of the employee (or employees) of SplitMetrics that the Contractual Partner enticed to terminate his employment contract with SplitMetrics or attempted to. Payment of the contractual penalty does not release the Contractual Partner from the duty to comply with this provision. Furthermore, SplitMetrics’s right to demand additional damages shall not be affected.
C. General Provisions
12. General Provisions on Data Privacy and Security
12.1. SplitMetrics’s Privacy Policy explains how SplitMetrics collects and uses personal data (i.e. data of natural persons such as e.g. names, email-addresses, telephone numbers, etc.).
12.2. SplitMetrics’s Data Security Policy explains how SplitMetrics collects and uses other data (i.e. data other than personal data such as login information, aggregated data, app metadata, etc.).
12.3. SplitMetrics shall maintain appropriate administrative, physical and technical safeguards to protect the security, confidentiality, and integrity of the Contractual Partner’s general data (business data). These safeguards include encryption of the Contractual Partner’s data in transmission (using SSL or similar technologies), except for certain external third-party integrations that do not support encryption, which the Contractual Partner may link to the Service at the Contractual Partner’s choice. SplitMetrics offers its best efforts in providing safe communication.
12.4. Personal data of end-users: SplitMetrics generally does not process any personal data of end-users. SplitMetrics only saves and processes Usernames/Nicknames of App Store and Google Play Store Users exclusively to make the process of answering to App Store reviews possible for the Contractual Partner. These usernames will not be linked to any natural person / further personal data by SplitMetrics. No other personal data of end-users is processed or saved in any way.
12.5. By entering into a contractual relationship with SplitMetrics, SplitMetrics’s Data Processing Agreement is automatically concluded between SplitMetrics and the Contractual Partner. SplitMetrics and the Contractual Partner may exchange a signed copy if required.
12.6. SplitMetrics is entitled to process personal data of employees of the Contractual Partner (e.g. their work email address or phone numbers) entrusted to it within the scope of the purpose of the contractual relationship. The Contractual Partner guarantees SplitMetrics that all necessary measures in this regard, in particular, those in the sense of the law on data protection (GDPR, Austrian Data Protection Law), such as declarations of consent, have been taken.
13. Maintenance and Support
13.1. SplitMetrics conducts maintenance and support generally only from Monday to Friday between 9 am CET +1 and 5 pm CET +1.
14. Liability and Damages
14.1. The following provisions shall not apply vis-a-vis consumers as far as this is required by law.
14.2. Any liability of SplitMetrics is excluded as far as permitted by law. SplitMetrics does not give any warranties or guarantees unless otherwise agreed in writing.
14.3. SplitMetrics shall only be liable to the Contractual Partner for damages – outside of the Product Liability Act – in the event of gross negligence or dolus directus. This shall also apply mutatis mutandis to damage caused by third parties called in by SplitMetrics.
14.4. In any case, SplitMetrics shall not be liable for a certain performance of its goods or services.
14.5. SplitMetrics’s gathered data are extracted from various data sources and extrapolated, based on internally developed algorithms. No guarantee for their correctness can be given, all data given are best estimates. They are provided on “as is” and “as available” basis. SplitMetrics does not own the source data. SplitMetrics does not assume any warranty or liability for them, no express or implied liability of merchantability, or fitness for any particular purpose. The data is obtained from third-party sources not under the control of SplitMetrics and not affiliated with SplitMetrics, thus SplitMetrics cannot make any representation or subsume any liability regarding the completeness, correctness, adequacy or otherwise aptness of the data.
14.6. Any liability is capped with the fees paid for goods/services by the Contractual Partner within the last 6 months before a claim arose.
14.7. In addition, SplitMetrics shall only be liable for typical and foreseeable damage, i.e. for damage that could reasonably have been expected to occur at the time the contract was concluded in accordance with the circumstances known at that time. Claims arising from consequential damages and from damages for which the Contractual Partner can obtain insurance cover or which can be controlled by the Contractual Partner, other indirect damages and losses or loss of profit as well as general financial losses, in particular from defective, omitted or delayed performance, are expressly excluded. Thus, no event shall SplitMetrics be liable to the Contractual Partner for any incidental, special, consequential or indirect damages of any kind (including without limitation damages for interruption of business, lost profits, lost data or the like). SplitMetrics shall have no liability whatsoever to the Contractual Partner for the accuracy, timeliness or continued availability of its Tool.
14.8. Compensation for damages in accordance with the Product Liability Act shall be governed by the statutory statute of limitations. Liability recourse is excluded. Any liability that the software delivered by SplitMetrics meets the requirements of the Contractual Partner, that it functions with other programs of the Contractual Partner, or that all software errors can be corrected is excluded in any case.
14.9. The legal assumption that any fault or defect in goods or services provided by SplitMetrics to the Contractual Partner was present at the point the goods or services were handed over to the Contractual Partner is excluded.
14.10. Claims for compensation for damages by the Contractual Partner can only be made judicially within six months from the knowledge of the damages and the tortfeasor, but at the latest within three years after the beginning of the event establishing the claim. Otherwise, the claim is forfeited.
14.11. If SplitMetrics performs its services or provides its goods with the assistance of third parties and warranty and/or liability claims arise against these third parties in this connection, SplitMetrics shall assign these claims to the Contractual Partner. In this case, the Contractual Partner shall file their claims with those third parties.
14.12. SplitMetrics assumes no liability for the economic success of any commissioned and/or implemented project. SplitMetrics is exclusively the supplier of the goods/service ordered and does not assume any entrepreneurial risk. The Contractual Partner is solely responsible for profits or losses resulting from the implemented project.
15. Intellectual Property Rights and Copyright
15.1. The copyrights to those works created by SplitMetrics and its employees and commissioned third parties (in particular: offers, cost estimates, reports, analyses, experts’ reports, organization-plans, programs, performance descriptions, drafts, calculations, drawings, data carriers, presentations, etc.) remain with SplitMetrics. They may be used by the Contractual Partner during and after the contract relationship exclusively for the purposes specified in the contract. The contractual partner is granted a non-exclusive license to use the works internally. SplitMetrics also retains all intellectual property rights relating to the Tool. The source code, all enhancements, corrections and modifications to the Tool, all copyrights, patents, trade secrets or trademarks or other intellectual property rights protecting or relating to any aspect of the Tool are the sole and exclusive property of SplitMetrics. Reverse engineering, decoding, decompiling, disassembling, or otherwise translating the source code into a human-readable form or allowing anyone else to do so is prohibited.
15.2. The Contractual Partner is not entitled to copy and/or distribute the work (or works) without express consent from SplitMetrics in writing. SplitMetrics is in no way liable vis-Ă -vis third parties when the work is copied/distributed without authorization, especially not for the correctness of the work.
15.3. SplitMetrics can demand the return of all documents listed above and these are in any case to be returned to SplitMetrics immediately and without being asked if the contract does not come into force.
15.4. Breach of these provisions by the Contractual Partner entitles SplitMetrics to immediately terminate the contractual relationship prematurely and to make other claims, in particular for omission and/or compensation for damages.
16. Consumers
16.1. As a rule, SplitMetrics does not enter into contracts with consumers. SplitMetrics reserves the right to deny entering into a contract with consumers without giving a further reason.
16.2. Potential Contractual Partners that are consumers according to applicable law need to inform SplitMetrics in writing of their status before entering into a contract.
16.3. In case no notification is given to SplitMetrics in writing, SplitMetrics may either immediately void the contract and claim damages incurred by the Contractual Partner by this incident or continue the contractual relationship with the required changes thereto due to the Contractual Partner’s status as consumer.
17. Confidentiality
17.1. The Contractual Partner is obliged to keep all and any confidential information of SplitMetrics secret, which comes to its knowledge during the duration of a contractual relationship (in whatever context), and to protect such information with the same care as it protects its own confidential information, but at least with the care of ordinary businesspeople.
17.2. Confidential Information shall be deemed to be all information, in whatever form (physical or incorporeal), which is expressly designated as such or is to be understood as such in good faith.
17.3. For each and every breach of this confidentiality obligation (with or without default by the contractual partner), the contractual partner is obliged to pay to SplitMetrics a contractual penalty of EUR 10.000,– with immediate effect. Additionally, SplitMetrics may file a claim for injunctive relief. SplitMetrics may claim any damages caused by a breach of confidentiality that exceeds the contractual penalty.
17.4. At the end of the contractual relationship, the Contractual Partner is obliged to return all and any confidential information to SplitMetrics and destroy any copies still in its possession.
17.5. The obligation of confidentiality also extends without limit beyond the end of this contractual relationship.
17.6 SplitMetrics is not bound to maintain confidentiality regarding confidential information of the Contractual Partner vis-Ă -vis necessary assistants, advisors, members of its company group and representatives as long as the obligation of confidentiality is imposed on them in full.
18. Representations and Warranties
18.1. The Contractual Partner represents and warrants to SplitMetrics that: (i) that the Contractual Partner has full power and authority to enter into a contract with SplitMetrics; (ii) that the Contractual Partner is the owner of all of the Contractual Partner’s content or has received all authorizations, releases, rights or licenses necessary for the Contractual Partner’s activities (and which permit SplitMetrics to perform its obligations) without any further releases or consents being required; (iii) that the Contractual Partner will not, now or in the future, infringe on or misappropriate any copyright, trademark, right of privacy or publicity, or any other personal or proprietary right of any third party; (iv) that the Contractual Partner’s content is not defamatory, obscene, unlawful, threatening, abusive, harassing, offensive, abusive, tortious or illegal; and (v) that the Contractual Partner is eighteen years of age or older.
18.2. The Contractual Partner, with regard to copyright, guarantees that all text elements, graphics, photos, designs, copyrights or other artworks which are provided are the property of the Contractual Partner or that the Contractual Partner may lawfully use them.
19. Newsletters and References
19.1. SplitMetrics uses double opt-in for newsletter sign-ups. It is possible to opt-out from the SplitMetrics newsletter in every email the Contractual Partner receives.
19.2. SplitMetrics will contact the Contractual Partner and ask for permission to use the Contractual Partner’s name and/or company name as a reference for marketing or promotional purposes.
20. Final Provisions
20.1. SplitMetrics’s TToS, CToS, the PP, the DSP, and all and any contracts concluded between SplitMetrics and the Contractual Partner for the provision of ASMS or ICs shall be governed by and construed exclusively in accordance with the laws of the Republic of Austria under the exclusion of CISG and the laws of international private law.
20.2. All and any litigation between SplitMetrics and the Contractual Partner in connection with provision of ASMS or ICs shall be held before the responsible court for 8010 Graz unless the Contractual Partner is a consumer (then the legal venues for consumers shall apply). SplitMetrics is however also entitled to file any action with any court competent for the Contractual Partner.
20.3. If individual provisions of SplitMetrics’s TToS, CToS, the PP, the DSP, and all and any contracts concluded between SplitMetrics and the Contractual Partner should be ineffective, unenforceable or otherwise invalid, the effectiveness, enforceability, and validity of the remaining provisions shall not be affected. The ineffective, unenforceable or otherwise invalid provision is to be replaced with an effective, enforceable, and valid provision that comes as close as possible to the sense aimed for and the economic purpose.
20.4. The Contractual Partner is obligated to inform SplitMetrics immediately about changes in its contact address during ongoing contractual relations. If the Contractual Partner omits to provide this information, statements are also considered received if SplitMetrics sent them to the last known address.
20.5. SplitMetrics is entitled to transmit electronic data such as project reports, general terms and conditions etc. to the Contractual Partner in electronic form and the Contractual Partner expressly agrees to this type of transmission.
20.6. SplitMetrics’s TToS, CToS, the PP and the DSP, are only authoritative in the English language; translation into other languages constitutes merely aids for convenience.
21. Contact
21.1. Questions about SplitMetrics’s TToS, CToS, the PP and the DSP can be addressed to:
SplitMetrics Inc.
108 W. 13th Street, Suite 100, Wilmington, DE (Delaware), 19801Â