Tool Terms of Service - TToS
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 Tool Terms of Service (henceforth referred to as “TToS”) of SplitMetrics apply for all and any transactions between SplitMetrics and Contractual Partners that sign up to use the Tool. SplitMetrics only offers the Tool based on these TToS. By using the Tool the Contractual Partner agrees to be bound by these TToS.
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 TToS may only be waived by written agreement between SplitMetrics and the Contractual Partner. Verbal deviations are not binding on SplitMetrics. Written agreements shall have priority over these TToS. Anything not governed by a written agreement, these TToS shall be governed by the applicable law, in that order.
3. Other Terms and Policies
3.1. If the Contractual Partner enters into a contract with SplitMetrics for the provision of App Store Marketing Services (ASMS) or Individual Contracts (ICs), SplitMetrics Consulting Terms of Service (CToS) shall apply.
3.2. In addition to these TToS and/or the CToS, SplitMetrics’s Privacy Policy (PP) and Data Security Policy (DSP) applies.
4. Future Transactions and Changes to these Terms
4.1. Any new features that are added to the current Tool shall also be subject to these TTos.
4.2. The Contractual Partner can review the most current version of the TToS at any time on this Website. SplitMetrics reserves the right to update, change or replace any part of these TToS by posting updates and/or changes to the Website.
4.3. It is the Contractual Partner’s responsibility to check this Website periodically for changes. The Contractual Partner’s continued use of the Tool following the posting of any changes constitutes acceptance of those changes.
4.5. These provisions also apply to other terms and policies referenced above.
B. Tool Contracts
5. Contract Conclusion, Contract Period, Contract Termination and Changes to Contracts
5.1. Contract Conclusion: A contract between the Contractual Partner and SplitMetrics for the Tool is concluded and commences by creating an account by the Contractual Partner.
5.2. Contract Period: SplitMetrics generally offers two different possibilities for contract period for the usage of the Tool: (a) monthly subscription; (b) yearly subscription.
5.3. Monthly Subscription: If the contract is not terminated by the Contractual Partner, it is always automatically renewed for one additional month. If the Contractual Partner wants to terminate the contract he can do that within his Account Settings.
5.4. Yearly Subscription: If the contract is not terminated by the Contractual Partner, it is always automatically renewed for one additional year. If the Contractual Partner wants to terminate the contract he can do that within his Account Settings.
5.5. Termination: The notice of termination can be given at any time via the Account Settings. The termination becomes effective at the end of the current accounting period, i.e. at the end of the current subscription month or year period.
5.6. Plans with a different contract period: If certain plans have a different contract period, the Contractual Partner shall be informed of this before contract conclusion. The above provisions apply mutatis mutandis.
5.7. Free Plans: SplitMetrics reserves the right to terminate Free Plans, reduce / change their scope, the usage thereof, or discontinue the offering of Free Plans entirely, at the sole discretion of SplitMetrics at any time. SplitMetrics assumes no liability for said termination, reduction/change or discontinuance towards the Contractual Partner or third parties. SplitMetrics may at any time terminate, reduce, suspend, change the scope/content of, or discontinue Free Plans; especially (but not limited to) for the following reasons: (a) Providing false or incomplete information by the Contractual Partner to SplitMetrics; (b) misuse of the Free Plan; (c) changes of SplitMetrics’s business model (e.g. discontinuation of free services or change of scope).
5.8. Plans offered for Compensation: For plans offered for compensation, SplitMetrics reserves the right to regularly adapt and change the plans offered, the scope thereof, and the pricing. Contractual Partners with existing plans will be informed of changes affecting their plans at least one month in advance and will be offered to either adopt the new plan/pricing that supersedes their old plan or to terminate their existing contract (prematurely if need be).
6. Tool Usage
6.1. With regard to the Tool, only a limited right of use is granted to the Contractual Partner, no ownership is granted, neither of the entire Tool nor parts thereof, nor of the source code.
6.2. SplitMetrics provides the Tool only. The Contractual Partner is responsible for providing whatever resources are needed to access and use the Tool or are necessary for the fulfillment of SplitMetrics’s contractual duties. In case the Contractual Partner does not fulfill or if they violate their duties under the contract, SplitMetrics reserves the right to suspend any usage of the Tool or terminate the contract with immediate effect.
6.3. By connecting their apps to the Tool, Contractual Partners agree to SplitMetrics’s PP and DSP.
6.4. Plans may include basic or expanded support based on the Plan purchased. SplitMetrics does its very best to make the Tool available except for: (a) planned downtime (of which the Contractual Partner will be notified in advance); (b) any unavailability caused by circumstances beyond SplitMetrics’s reasonable control, such as, but not limited to, war, acts of government, acts of terror or civil unrest, or technical failures beyond our control (force majeure). SplitMetrics does not guarantee, represent or warrant that the Contractual Partner’s use of the Tool will be uninterrupted, timely, secure or error-free. SplitMetrics does not warrant that the results that may be obtained from the use of the Tool will be accurate or reliable.
6.5. Access data to the Tool is to be kept confidential. Access to the Tool is not to be given to third parties without prior written consent of SplitMetrics. The Contractual Partner may not use the Tool for purposes which are illegal, breach the rights, including personal data or intellectual property rights or business secrets, of third parties, or that are contrary to good business practice or contra bonos mores.
6.6. SplitMetrics is entitled to check the usage of the Tool by the Contractual Partner to ensure compliance with these TToS. The Contractual Partner is required to cooperate during such a check.
6.7. Information about the Tool not published by SplitMetrics is not binding on SplitMetrics.
7. Pricing, Payment, Due Dates, and Billing
7.1. SplitMetrics currently offers a Free Plan of the Tool, thus free of charge. Other plans are offered for a fee.
7.2. To the extent the Tool or any portion thereof is made available for a fee within the scope of a plan, the Contractual Partner will be required to select a payment plan and provide SplitMetrics information regarding the Contractual Partner’s credit card or other payment instruments.
7.3. SplitMetrics reserves the right to enter into contracts only after an advance payment has been made.
7.4. 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.
7.5. SplitMetrics reserves the right to make appropriate price changes in case of excessive usage of the Tool. Excessive usage, which is usage significantly in excess of average usage patterns including but not limited to patterns that adversely affect the speed, stability, availability or functionality of the Tool for other users and/or system stability. Excessive usage is also if the Contractual Partner connects more than 50 apps (even in “unlimited” plans) with the Tool. Excessive usage is also if the Contractual Partner uses the Tool for third party apps without obtaining SplitMetrics’s written consent in advance. SplitMetrics furthermore reserves the right to limit, suspend, alter or cancel Tool usage to Contractual Partners who excessively use the Tool, without giving notice. SplitMetrics will – if reasonably possible – notify the Contractual Partner of any excessive usage to provide the Contractual Partner with an opportunity to change their usage to a level acceptable to SplitMetrics or provide an opportunity to upgrade the Contractual Partner’s plan.
7.6. SplitMetrics reserves the right to increase or add new fees and charges for its existing Services (both free services and chargeable services) the Contractual Partner shall be given at least 30 days’ prior notice.
7.7. The Contractual Partner represents and warrants to SplitMetrics that payment information given during the account creation is true and that the Contractual Partner is authorized to use the payment instrument. The Contractual Partner will promptly update the Contractual Partner’s account information with any changes (for example, a change in the Contractual Partner’s billing address or credit card expiration date) that may occur.
7.8. The Contractual Partner agrees to pay SplitMetrics the amount that is specified in a payment plan in accordance with the terms of such plan and these TToS. The Contractual Partner hereby authorizes SplitMetrics to bill the Contractual Partner’s payment instrument in advance on a periodic basis in accordance with the terms of the applicable payment plan until the Contractual Partner terminates the Contractual Partner’s account, and the Contractual Partner further agrees to pay any charges so incurred.
7.9. If the Contractual Partner chooses to upgrade the Contractual Partner’s plan during the Contractual Partner’s elected subscription period, any incremental cost will be prorated over the remaining term of the subscription period and charged to the Contractual Partner’s account. Subsequently, the Contractual Partner will be charged the adjusted rate on the Contractual Partner’s next billing cycle.
7.10. SplitMetrics may offer alternative fee structures, discounts, coupons or incentives, at its sole discretion and for any reason, and is under no obligation to offer such alternatives to all users.
7.11. Payments are, unless otherwise agreed in writing, due on the date the invoice is received without any deduction in the agreed currency. A payment is regarded as performed on the day on which SplitMetrics can dispose of them.
7.12. Manual invoicing for the Tool fee (i.e. not by using e.g. PayPal or credit card data and automatic billing) is only offered if the Contractual Partner has chosen a year-long plan.
7.13. SplitMetrics is entitled to send the Contractual Partner invoices in electronic form and the Contractual Partner expressly agrees with this form of delivery.
7.14. Pay-per-Use: If billing is carried out on a pay-per-use basis (e.g. billing on App and / or Keyword basis), the amount due will be calculated for each month according to the agreed pricing scheme. The amount due will be calculated on the basis of that day of said month, on which the Contractual Partner’s Usage of Services was the maximum. This is the day of the month on which the most apps and/or keywords were used. If both apps and keywords are billed, the maximum day of apps and the maximum day of keywords are billed separately.
7.15. The Contractual Partner is not entitled to withhold or offset payments on account of warranty claims or other counterclaims.
8. Money-Back Guarantee & Refund Policy
8.1. SplitMetrics does not provide refunds or credits for any partial months of use of the Tool.
8.2. Exempt from this is if the Contractual Partner cancels their (billable) account within 24 hours after registration and requests the refund via email to billing@splitmetrics.com. In this case SplitMetrics will transfer back payments of the Contractual Partner within 30 days.
9. Late Payment and other Contract Violations by the Contractual Partner
9.1 If the Contractual Partner defaults on a due payment SplitMetrics can, without affecting its other rights postpone the fulfillment of its own obligation until completion of this payment.
9.2. SplitMetrics may declare due all outstanding claims from the transaction in question 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. 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).
9.3. Furthermore, in case the Contractual Partner does not fulfill or if they violate their duties under the contract SplitMetrics reserves the right to withhold the performance of its contractual duties and / or terminate the contract with immediate effect.
9.4. SplitMetrics may terminate, reduce, suspend, change the scope/content of, or discontinue any of its goods or services or contracts at its sole discretion or for good cause. Good cause is deemed (especially but not limited to) a change of SplitMetrics’s business model (e.g. discontinuation/limitations of certain types of services, etc.).
C. General Provisions
10. General Provisions on Data Privacy and Security
10.1. 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.).
10.2. 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.).
10.3. 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.
10.4. 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.
10.5. 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.
10.6. 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.
11. Maintenance and Support
11.1. SplitMetrics conducts maintenance and support generally only from Monday to Friday between 9 am CET +1 and 5 pm CET +1.
12. Liability and Damages
12.1. The following provisions shall not apply vis-a-vis consumers as far as this is required by law.
12.2. 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.
12.3. 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.
12.4. In any case, SplitMetrics shall not be liable for a certain performance of its goods or services.
12.5. 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.
12.6. Any liability is capped with the fees paid for goods/services by the Contractual Partner within the last 6 months before a claim arose.
12.7. 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.
12.8. 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.
12.9. 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.
12.10. 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.
12.11. 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.
12.12. 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.
13. Intellectual Property Rights and Copyright
13.1. The copyrights to those works created by SplitMetrics and its employees, contractors 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.
13.2. 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.
13.3. 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.
13.4 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.
14. Consumers
14.1. 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.
14.2. Potential Contractual Partners that are consumers according to applicable law need to inform SplitMetrics in writing of their status before entering into a contract.
14.3. 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 a consumer.
15. Confidentiality
15.1. 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 business people.
15.2. 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.
15.3. 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.
15.4. 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.
15.5. The obligation of confidentiality also extends without limit beyond the end of this contractual relationship.
15.6. 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.
16. Representations and Warranties
16.1. 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.
16.2. 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.
17. Newsletters and References
17.1. 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.
17.2. 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.
18. Final Provisions
18.1. SplitMetrics’s TToS, CToS, the PP, the DSP, and all and any contracts concluded between SplitMetrics and the Contractual Partner that signs up to use the Tool 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.
18.2. All and any litigation between SplitMetrics and the Contractual Partner that signs up to use the Tool 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.
18.3. 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.
18.4. 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.
18.5. 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.
18.6. SplitMetrics’s TToS, CToS, the PP and the DSP, are only authoritative in the English language; translation into other languages constitute merely aids for convenience.
19. Contact
19.1. 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), 19801
legal@splitmetrics.com