Skin Match Technology Switzerland AG (hereinafter “we”, “us” or “SMT”) offers software solutions for commercial users operating in the beauty industry, such as department stores, online stores, pharmacies, beauty brands etc. (hereinafter “you”), whereby it acts as a data aggregator and market research platform for cosmetics companies and a resource for customers (end users) to find suitable products and product information.
By signing up for a SMT Account (as defined in Section 1) or by using any SMT Services (as defined on skin-match.com), you are agreeing to be bound by the following terms and conditions (the “Terms of Service”, “Agreement” together with the “API License and Terms of Use”). This Agreement shall enter into force upon its acceptance and shall be concluded for an indefinite term.
The services offered by SMT under these Terms of Service include various services to help you sell goods and services to your customers (”Customer”). Any such services offered by SMT are referred to in these Terms of Services as the “Services”. Any new features or tools which are added to the current Services shall be also subject to the Terms of Service. You can review the current version of the Terms of Service at any time at https://getskinmatch.com/legal/terms. SMT reserves the right to update and change the Terms of Service.
You must read, agree with and accept all of the terms and conditions contained or expressly referenced in these Terms of Service, including SMT’s Privacy Policy available at https://getskinmatch.com/legal/privacy-policy, and if applicable the SMT Data Protection Addendum (“DPA”) available at https://getskinmatch.com/legal/dpa before you may sign up for a SMT Account or use any SMT Service.
Any general terms and conditions of the Licensee are hereby expressly excluded unless they are expressly accepted by SMT in writing.
“Account” means the access to the SMT Platform created by you by registration at https://www.skin-match.com/signup or https://www.skin-match.com/brand-account or any given login credentials for getskinmatch.com or skinmatchapp.com.
“Applications” means the software application, website, interface, or any other means you use to access the SMT API using the API Credentials, including a Private Application, Custom Application, or a Public Application.
“Customer” means any individual that visits or transacts via the Licensee Store or Website (end consumer).
“Data” means any information about ingredients, beauty products as well as behavioral data and personal data of customers.
“Material”
- SMT API Links and Access Information as well as any data delivered through the API.
- Labels, Icons, Logos, Seals or any other graphic elements provided by SMT.
- Account Information and any data saved, exported or visible via the account.
- Product Information (EAN, Title, Subtitle, Images, Ingredient-Lists, Ingredient Information etc.).
- Any Code or changes made to the original setup of the services, API or Account.
- Source code of SMT’s software (regardless of the fact that the Licensee is not being granted any rights of use in respect of the source code).
“Products” means goods and services sold from the Licensee to its Customers (Cosmetic Products).
“Services” means the SMT hosted tools available via www.getskimatch.com, skin-match.com and skinmatchapp.com and any associated websites, products or services offered by SMT.
“SMT API” means the Skin Match Technology application programming interface.
“SMT Software” means the software provided (as a Service) on the platform of SMT after registering for an Account or any Services used.
“User” means any employee of the Licensee who have been granted an Account or access to Services or Material including the SMT API.
“Developer” means an external resource to help you integrate any SMT Services or API.
1.1 To access and use the Services, you must register at https://www.skin-match.com/signup or https://www.skin-match.com/brand-account for a SMT account (“Account”) or Services by providing your full legal name, current business address, a valid email address, and any other information indicated as required. SMT may reject your application for an Account and/or Services for any reasons.
1.2 You confirm that you are receiving any Services provided by SMT for the purposes of carrying on a business activity.
1.3 You acknowledge that SMT will use the email address you provide on opening an Account or as updated by you from time to time as the primary method for any communication with you. Additionally, we will use the email address provided by you for direct marketing purposes. You have the right to refuse such mailing at any time by sending us an email to questions@skin-match.com or unsubscribing from said direct marketing in the provided link in the email.
1.4 You are responsible for keeping your password for the Account secure. SMT cannot and will not be liable for any loss or damage from your failure to maintain the security of your Account and password. We offer an additional and optional 2-Factor Authentication which you may enable for additional protection of your account.
1.5 A breach or violation of any term in the Terms of Service, as determined in the sole discretion of SMT may result in an immediate termination of the Agreement and the Services and access to API if applicable.
2.1 By accepting these Terms of Service when activating an Account or registering for a Service, you acquire the right to use SMT’s Services under the agreed terms and pricing available at skin-match.com or otherwise offered to you by SMT. You may have multiple Brands. “Brand” means the branded setup for each brand or retail location(s) associated with the Account.
2.2 SMT grants you the non-exclusive right to use the Services and Materials, which is not transferable to any third parties and limited for the duration of this Agreement. You may use the Services and Materials solely for your own commercial purposes as set forth herein. Users duly registered by you for a User Account are not deemed to be third parties. However, you are responsible for ensuring that such Users use the Services and Materials in accordance with these Terms of Service and these SMT API License and Terms of Use. You are liable for the Users’ conduct as for your own.
2.3 You can add up to five (5) free accounts allowing your employees (“Users”) to access the Services and/or Materials (“User Accounts”). Additional User Accounts are billed at an annual price of EUR 120. With User Accounts, SMT will set permissions according to your instructions and let your employees work in their Accounts while determining the level of access by User Accounts to specific business information (for example, we can limit User Account access to information on the Insight page or prevent User Accounts from changing general settings). For additional User Accounts please contact your representative at SMT or email us at questions@skin-match.com.
2.4You are responsible and liable for the acts, omissions and defaults arising from use of User Accounts in the performance of obligations under these Terms of Service as if they were your own acts, omissions, or defaults.
3.1 As you are responsible for the Users’ conduct, you must ensure that all Users are fully aware of these Terms of Service and our Privacy Policy and Data Protection Addendum (if applicable) prior to using their User Accounts and/or Services and Materials.
3.2 You may not use the Services and/or Materials for any illegal or unauthorized purpose nor may you, in the use of the Service and/or Materials, violate any applicable laws or rights of any third party.
3.3 You agree not to reproduce, duplicate, copy, sell, resell, or exploit any portion of the Service or Materials, use of the Services, any Service-related documentation, or access to the Services without the prior express written permission by SMT.
3.4 You shall not purchase search engine or other pay per click keywords (such as Google AdWords), or domain names that use Skin Match Technology or SMT trademarks and/or variations and misspellings thereof.
3.5 You understand that your provided (personal) data (not including credit card information), may be transferred unencrypted and involve (a) transmissions over various networks; and (b) changes to conform and adapt to technical requirements of connecting networks or devices.
3.6 These Terms of Service may be available in languages other than English. To the extent of any inconsistencies or conflicts between these English Terms of Service and those available in another language, the most current English version of the Terms of Service at https://getskinmatch.com/legal/terms prevail.
3.7 All the terms and provisions of these Terms of Service shall be binding upon and inure to the benefit of the parties to the Terms of Service and to their respective heirs, successors, permitted assigns and legal representatives.
3.8 SMT shall be permitted to assign or otherwise transfer these Terms of Service, or any of its rights or obligations hereunder, without notice to you or consent from you. You shall have no right to assign or otherwise transfer these Terms of Service, or any of your rights or obligations hereunder, to any third party without SMT’s prior written consent, to be given or withheld in SMT’s sole discretion.
3.9 If any provision, or portion of the provision, in these Terms of Service is, for any reason, held to be invalid, illegal or unenforceable in any respect, then such invalidity, illegality or unenforceability will not affect any other provision (or the unaffected portion of the provision) of the Terms of Service, and the Terms of Service will be construed as if such invalid, illegal or unenforceable provision, or portion of the provision, had never been contained within the Terms of Service.
4.1 We may, but have no obligation to, remove Materials and suspend or terminate Accounts or Services if we determine in our sole discretion that the Products offered via a Service, or any data uploaded, violate these Terms of Service, any applicable laws and/or any rights of a third party. We shall be entitled to full indemnification from you in the event that we are sued by third parties for such violations.
4.2 When communicating our Services, you must always refer in a clear manner to them as provided by the Company Skin Match Technology, Skin Match Technology®, Skin Match Technology Switzerland AG or by displaying our seal or logo as provided. All of these elements are registered trademarks owned by SMT. You may use the aforementioned trademarks non-exclusively and only for the contractual purposes stated in these Terms of Service. The right of use ends automatically with the termination of this Agreement.
4.3 We reserve the right to provide our Services to your competitors and make no promise of exclusivity in any particular market segment. You further acknowledge and agree that SMT, its employees and contractors may also be users and that they may compete with you, although they may not use your Confidential Information (as defined in Section 6) in doing so. The source of any data shared or generally published by SMT is not identifiable.
4.4 In the event of a dispute regarding Account ownership, we reserve the right to request documentation to determine or confirm Account ownership and the right to access the Material. Documentation may include, but is not limited to, a scanned copy of your business license, government issued photo ID, a written contract with a specific brand, your status as an employee of an entity, etc.
4.5 SMT retains the right to determine, in our sole judgment, rightful Account ownership and transfer an Account to the rightful owner. If we are unable to reasonably determine the rightful owner, without prejudice to our other rights and remedies, SMT reserves the right to temporarily disable an Account until resolution has been determined between the disputing parties.
4.6 SMT reserves all the rights to custom code, made specifically for you and to the documentation that are not expressly granted to you within the scope of this Agreement. In particular, you shall not be granted any rights to the software’s source code, irrespective of whether chargeable specifications have been made for you and according to your instructions in respect of the software.
5.1 “Confidential Information” shall include, but shall not be limited to, any and all information associated with a party’s business and not publicly known, including specific business information, technical processes, software, customer lists, prospective customer lists, names, addresses and other information regarding customers and prospective customers, product designs, sales, costs (including any relevant processing fees), and other unpublished financial information, whether or not marked as confidential or proprietary. SMT’s Confidential Information includes all information that you receive relating to us, or to the Services and/or Materials and Codes, that is not known to the public.
5.2 The confidentiality clause shall remain in force after the contractual relationship has ended. If a party is in breach of this clause, it shall be liable for an immediately payable contractual penalty in the amount of one yearly fee. The payment of the contractual penalty does not exempt from complying with this confidentiality clause. SMT reserves the right to claim further damages.
5.3 Each party agrees to use the other party’s Confidential Information solely as necessary for performing its obligations under these Terms of Service and in accordance with any other obligations in these Terms of Service including this Section 6. Each party agrees that it shall take all reasonable steps, at least substantially equivalent to the steps it takes to protect its own proprietary information, to prevent the duplication, disclosure or use of any such Confidential Information, other than (i) by or to its employees, agents and subcontractors who must have access to such Confidential Information to perform such party’s obligations hereunder, who each shall treat such Confidential Information as provided herein, and who are each subject to obligations of confidentiality to such party that are at least as stringent as those contained herein; or (ii) as required by any law, regulation, or order of any court of proper jurisdiction over the parties and the subject matter contained in these Terms of Service, provided that, if legally permitted, the receiving party shall give the disclosing party prompt written notice and use commercially reasonable efforts to ensure that such disclosure is accorded confidential treatment. Confidential Information shall not include any information that the receiving party can prove was already in the public domain, or was already known by or in the possession of the receiving party, at the time of disclosure of such information; and without breaching any provisions of these Terms of Service.
6.1 You expressly understand and agree that, to the extent permitted by law, SMT shall not be liable for any direct, indirect, incidental, special, consequential, or exemplary damages, including but not limited to, damages for loss of profits, goodwill, use, data or other intangible losses resulting from the use of or inability to use the Service and/or Materials.
6.2 You hereby acknowledge that we do not guarantee any exact results or information about the Products, in particular we hereby exclude liability in relation to allergies or sensitivities of customers. You are responsible for advising your Customers that they should seek professional help from a dermatologist or a doctor if they have any concerns. You are responsible for advising Customers to read packaging inserts and ingredient lists on products. SMT shall not be liable for the accuracy of Product information as this is your responsibility to appropriately indicate any changes to Product Information on your Account or with your Supplier.
6.3 You hereby understand that SMT relies on all Materials available to them, which must always be true and up-to-date. SMT shall not be liable for the inaccuracy of any Materials, in particular of Product information, and expects immediate notification of any Product changes or changes in Materials to ensure accuracy.
6.4 You agree to indemnify and hold us harmless from any claim or demand, including reasonable attorneys’ fees, made by any third party due to or arising out of your breach of these Terms of Service or the documents it incorporates by reference, or your violation of any law or the rights of a third party.
6.5 Your use of the Services and Materials is at your sole risk. The Services and Materials are provided on an “as is” and “as available” basis without any warranty or condition, express, implied or statutory.7.6 In particular, SMT does not warrant that the Services and Materials will be uninterrupted, timely, secure, or error-free.
6.6 We hereby declare that the Services and Material have been, and will continue to be, developed, and tested with all due care, and shall not have any bugs that rule out or (significantly) restrict its use for the agreed purpose. If the Services and Material should have, in particular, SMT bugs, SMT shall strive to fix these as quickly as possible, depending on the seriousness of the bug.
6.7 You shall take adequate precautions in respect of potential malfunctions of our Services, including by means of regular data backup, fault diagnosis, and regular monitoring of the results. You shall bear sole responsibility for all consequences and costs (including lost profits) resulting from any breach of the aforementioned contractual obligations.
6.8 SMT does not warrant that the results that may be obtained from the use of the Services and Materials will be accurate or reliable in a legal or any other context. SMT does not warrant that the quality of any Products purchased or obtained by Customers through the Services will meet their expectations, not cause allergies or have any other impact on the Customer. You take full responsibility for the Products sold, advertised or recommended through the used Services and Materials.
6.9 SMT warrants that the valid, unmodified version of the Services and Material is free of third-party rights.
The failure of SMT to exercise or enforce any right or provision of the Terms of Service shall not constitute a waiver of such right or provision. The Terms of Service, including the documents it incorporates by reference, constitute the entire agreement between you and SMT and govern your use of the Services and your Account, superseding any prior agreements between you and SMT (including, but not limited to, any prior versions of the Terms of Service).
8.1 You may integrate your entire Product range for decorative cosmetics, cleansing, care, and protection for the face, hair, neck, and décolleté, shaving, body, feet and hand care, nail polish or care or fragrances into SMT, or appoint SMT to do so, upon accepting these Terms of Services.
8.2 You further accept to integrate the Products faithfully and completely into your Account. You shall integrate new Products into SMT on an ongoing basis. In the case of ongoing integration of Products by SMT, shall invoice the respective fees included in the license of your licensed service or in arrears for each fully integrated EAN (European or International Article Number) EURO 5.
8.3 We do not claim any intellectual property rights over the Products you integrate in to the SMT Service. All intellectual property rights regarding your uploaded Products remain yours.
8.4 SMT reserves the right to check all the data on Products before it goes live, whereby Products that are not represented faithfully and completely as specified or instructed by SMT may not be activated or may be rejected.
8.5 If a Product is rejected you shall be obliged to correct the data at once. You shall be exclusively liable for any damage in connection with incorrect product information that you have imported into SMT.
8.6 If Products are changed in terms of content, ingredients and appearance, then you shall likewise reflect these Product changes in SMT immediately after the public announcement of the same.
8.7 You shall bear sole responsibility for all consequences and costs resulting from any breach of the aforementioned contractual obligations.
8.8 By uploading Data, you agree: (a) to allow other internet users to view the Data you post publicly to SMT; (b) to allow SMT to store, and in the case of Data you post publicly, display your Products, make the Data available for third parties; and (c) that SMT can, at any time, review and delete all the Data submitted to its Service, although SMT is not obligated to do so.
8.9 You are responsible for compliance of the Products with any applicable laws or regulations and Guidelines or Instructions from SMT. SMT shall have the worldwide, non-exclusive, non-transferable (to third parties) right to use the names, trademarks, service marks and logos associated with your Brand to promote the Service of SMT. SMT shall be entitled to name you as a reference (also view 10.2).
8.10 You acknowledge the intellectual property rights, in particular the copyright of SMT to the Software, the SMT websites, the SMT programs and documentations or Materials. You are not entitled to make the Software etc. available to third parties for use against payment or free of charge or to sublet it and/or use it outside the contractual relationship with SMT.
9.1 The cooperation under this Agreement – but not the contents of the Agreement – may be communicated, such as via the website, social media, newsletters, and the like. For this purpose, own created or public texts, photography, screenshots, and logos of the parties can be used. To the extent necessary for this purpose, the parties grant each other a worldwide, non-exclusive, non-transferable (to third parties) license (also view 9.9)
9.2 The publication of press releases or case studies on skin-match.com or as downloads shall require the prior written consent of SMT and you.
10.1 In addition to the terms applicable to Services generally, the following terms apply to your access and use of the Services. SMT is responsible for the provision of the agreed Services and, if applicable, separately agreed service level including all Services provided or any individual projects decided on by you and your SMT representative.
10.2 You shall be responsible for integrating the Software provided by SMT (“SMT Software”) into your own IT environment in accordance with the instructions and guidelines where needed. You remain fully responsible for the operation, security and condition of your website and all other electronic/digital media on which SMT Services are used (hardware, software, operation, security, etc.). You shall bear all costs incurred in connection with the performance of your responsibilities.
10.3 You undertake to provide SMT with a list (an Excel spreadsheet) of all the Products, including their brand name, product name, variant name, complete INCI List (for Brands only), and EAN (European Article Number) or UPC (Universal Product Code), prior to their integration.
10.4 SMT’s Corporate Design Guidelines as well as the necessary logos and lettering and marking documentation shall be provided for use. These must be duly complied with and may be integrated only in accordance with the specifications where relevant.
10.5 You can terminate the Services by deinstalling it on your site and terminating your usage by informing SMT or terminating the API without terminating your Account or any other Services you subscribe to, and in such case, you will not continue to be billed for the specific service you discontinued in the following month or payment period.
10.6 While the Services use encryption technology, and the law generally prohibits third parties from monitoring transmission, we cannot guarantee security with respect to the connection to the Services, and we will not be liable for any unauthorized access to or use of data transmitted via the Services.
11.1 You will pay the fees applicable to your license to SMT (“License Fees”) and any other applicable fees (“Additional Fees”), Together, the License Fees and the Additional Fees are referred to as the “Fees”.
11.2 You must keep a valid payment method or address for Invoicing on file with us to pay for all incurred and recurring Fees. SMT will charge applicable Fees to any valid payment method, that you authorize, as per default invoicing via email (“Authorized Payment Method”), and SMT will continue to charge the Authorized Payment Method for applicable Fees until the Services are terminated, the Services have been deinstalled and any and all outstanding Fees have been paid in full.
11.3 Unless otherwise indicated, all Fees and other charges are in EURO or CHF, and all payments shall be in EURO or CHF currency.
11.4 Unless otherwise agreed, License Fees are paid per use and will be billed in 30 day intervals (each such date, a “Billing Date”). Additional Fees will be charged upfront. You will be charged on each Billing Date for all outstanding Fees that have not previously been charged. Fees will appear on an invoice, which will be sent to you via email.
11.5 SMT may charge an Additional Fee if you have received our Services without installing our Services within 90 days. This Additional Fee will be equal to 6 months of assumed monthly cost. This amount will be considered as a deposit for you to activate our Services at any time within the next 12 months.
11.6 Monthly License Fees shall be settled latest 60 days after the conclusion of the Agreement, and on a monthly basis thereafter. The License Fees are set out in the pricing plan available at skin-match.com unless otherwise agreed upon and shall be payable within 30 days of receipt of the invoice, if not directly charged via an authorized Credit Card.
11.7 SMT remains the right to charge Additional Fees for invoices sent per post office and your specific invoice splitting. Should you require any specific invoicing, please request them at questions@skin-match.com.
11.8 All Fees are exclusive of applicable federal, provincial, state, local or other governmental sales, goods and services, harmonized or other taxes, fees or charges now in force or enacted in the future (“Taxes”).
11.9 You are responsible for all applicable Taxes that arise from or as a result of your license to or purchase of SMT Services. To the extent that SMT charges these Taxes, they are calculated using the tax rates that apply based on the billing address you provide to us. Such amounts are in addition to the Fees for such Services and will be billed to your Authorized Payment Method. If you are exempt from payment of such Taxes, you must provide us with evidence of your exemption, which in some jurisdictions includes an original certificate that satisfies applicable legal requirements attesting to tax-exempt status. Tax exemption will only apply from and after the date we receive evidence satisfactory to SMT of your exemption. If you are not charged Taxes by SMT, you are responsible for determining if Taxes are payable, and if so, self-remitting Taxes to the appropriate tax authorities in your jurisdiction.
11.10 For the avoidance of doubt, all sums payable by you to SMT under these Terms of Service shall be paid free and clear of any deductions or withholdings whatsoever. Other than Taxes charged by SMT to you and remitted to the appropriate tax authorities on your behalf, any deductions or withholdings that are required by law shall be borne by you and paid separately to the relevant taxation authority. SMT shall be entitled to charge the full amount of Fees stipulated under these Terms of Service to your Authorized Payment Method ignoring any such deduction or withholding that may be required.
11.11 You must maintain an accurate location/billing address with us. If you change jurisdictions, you must promptly update your location by contacting your representative or questions@skin-match.com.
11.12 SMT does not provide refunds for any used Services.
11.13 You are entitled to only offset against claims of SMT with undisputed or legally established counterclaims.
12.1 You may cancel your Account or Services at any time by contacting your SMT representative in writing or emailing questions@skin-match.com and deinstalling all provided Services and related Codes or following the specific instructions indicated to you in SMT’s response.
12.2 The parties may terminate this Agreement at the end of any month by giving one 30 days notice. Notice of termination must be given in writing, i.e., by email or letter. It is not necessary to give any reasons.
12.3 Upon termination of the Services by either party for any reason:
SMT will cease providing you with the Services earliest within 1 day after the concluded notice and you will no longer be able to access your Account;
you will not be entitled to any refunds of any Fees, pro rata or otherwise;
any outstanding balance owed to SMT for your use of the Services through the effective date of such termination will immediately become due and payable in full.
12.4 If at the date of termination of the Services, there are any outstanding Fees owing by you, you will receive one final invoice via email.
12.5 We reserve the right to modify or terminate this Agreement, the Services, and/or your Account for any reason, with a 30 days notice. Termination of this Agreement shall be without prejudice to any rights or obligations which arose prior to the date of termination.
12.6 Sections 1,3-8,13-18,19,21,22,24-29 will survive the termination or expiration of these Terms of Service.
Prices for using the Services are subject to change upon 30 days’ notice from SMT. SMT reserves the right at any time, to modify or discontinue the Services (or any part thereof) with a 30 days notice. SMT shall not be liable to you or to any third party for any modification, price change, suspension, or discontinuance of the Services.
SMT welcomes any ideas and/or suggestions regarding improvements or additions to the Services. Under no circumstances shall any disclosure of any idea, suggestion or related material or any review of the Services, third party services or any third party provider (collectively, “Feedback”) to SMT be subject to any obligation of confidentiality or expectation of compensation. By submitting Feedback to SMT (whether submitted directly to SMT or posted on any SMT hosted forum or page), you waive any and all rights in the Feedback and that SMT is free to implement and use the Feedback if desired, as provided by you or as modified by SMT, without obtaining permission or license from you or from any third party.
15.1 SMT is firmly committed to protecting the privacy of your personal information and the personal information of your employees and customers. By using the Services, you acknowledge and agree that SMT’s collection, usage and disclosure of this personal information is governed by our Privacy Policy at https://getskinmatch.com/legal/privacy-policy.
15.2 Customer Data that is collected by SMT as a result of your use of SMT Services belongs to SMT and used at our sole discretion under the Privacy Policy. In particular it may be used in an anonymized form by SMT for analytical purposes. Conclusions, expert studies, press reports, etc. arising therefrom may automatically be published and made available by SMT, including, in particular, other (potential) licensees, whether these are distributors or cosmetics companies.
15.3 You are responsible for informing Customers about the use of their personal data by SMT and for providing them with SMT’s Privacy Policy when collecting their data.
15.4 Additionally, if: (a) you are established in the European Economic Area (EEA); (b) you provide goods or services to customers in the EEA; or (c) you are otherwise subject to the requirements of the EU General Data Protection Regulation, SMT’s collection and use of personal information of any European residents is also subject to our Data Protection Addendum at https://getskinmatch.com/legal/dpa.
If either party should refrain from asserting a right or a right of appeal to which it is entitled under this Agreement, then it cannot be inferred from this that additional related rights or rights of appeal will also be waived.
If any of the provisions of this Agreement should be invalid, then the validity of the other provisions shall not be affected thereby. The invalid provision shall be replaced by a valid provision that comes closest to fulfilling the purposes pursued by the parties.
18.1 If any of the provisions of this Agreement should be invalid, then the validity of the other provisions shall not be affected thereby. The invalid provision shall be replaced by a valid provision that comes closest to fulfilling the purposes pursued by the parties.
18.2 Amendments and additions to this Agreement and any schedules shall be valid only in writing.
18.3 Technical support in respect of the Services is only provided to SMT Account Holders and Licencees.
18.4 The Terms of Service shall be governed by and interpreted in accordance with the laws of the Canton of Zurich and the laws of Switzerland applicable therein, without regard to principles of conflicts of laws.
18.5 The contracting parties agree to demonstrably strive to reach an amicable settlement in the event of differences of opinion before referring the matter to a court. If such a settlement cannot be reached and if referral of the matter to a court is inevitable, then the contracting parties shall agree Zurich as the exclusive place of jurisdiction.
These SMT API License and Terms of Use govern your access to and use of the SMT API (as defined therein). You are solely responsible for the activity that occurs using your API Credentials (as defined in the API Terms) and for keeping your API Credentials secure. You are responsible for ensuring that these API License and Terms of Use are adhered to and respected in all activities carried out or commissioned by you (including development activities of any kind).
These guidelines, together with the Terms of Service, where applicable, constitute a binding contract between you and SMT.
20.1 Except as permitted herein, (A) you must keep the API Credentials and all login information for your SMT Account secure, (B) you may not share the API Credentials with any third party, and (C) you will not access the SMT API by any means other than the API Credentials. API Credentials are the exclusive property of SMT, and your access to and use of API Credentials is in SMT’s sole discretion.
20.2 You are not permitted to use a service provider in connection with providing your Application’s service unless they sign an agreement with you to (A) protect any Data and Material received from SMT (that is at least as protective as SMT’s terms and policies), (B) limit their use of Licensee Data and Material solely for the purpose of providing their services to your Application (and not for their own purpose or any other purpose), and (C) keep the Licensee Data and Material secure and confidential. You must ensure that any service provider complies with these Terms and any other applicable SMT terms and policies, and you acknowledge and agree that any act or omission by a service provider amounting to a breach of these Terms will be deemed to be a breach by you. If requested, you will provide a list of your service providers to SMT.
21.1 Subject to these Terms, SMT grants you a worldwide, non-exclusive, non-transferable (to third parties), revocable and limited license to use and make calls to the SMT API solely in the manner described in these Terms and in the technical documentation contained in the SMT API. SMT will charge the agreed license fee
21.2 Developer duly commissioned by you are not considered as third parties. However, you are responsible for ensuring that such Developers act in accordance with these Terms of Service and these SMT API License and Terms of Use. You are liable for the Developers’ conduct as for your own.
When using the SMT API, you will (and will ensure that your employees, agents and service providers will):
22.1 Only use the SMT API (including software development kits) to develop and distribute content for your use only.
22.2 Not distribute, sell, lease, rent, lend, transfer, assign or sublicense any rights granted by these Terms to any third party.
22.3 Not engage in any activity that interferes with, disrupts, harms, damages, or accesses in an unauthorized manner the servers, security, networks, data, applications or other properties or services of SMT or any third party.
22.4 Not circumvent technological measures intended to prevent direct database access, or manufacture tools or products to that effect.
22.5 Not modify, translate, reverse engineer, disassemble, reconstruct, decompile, copy, or create derivative works of the SMT API, Licensee Data, Materials or Services.
22.6 Not bypass SMT API restrictions for any reason.
22.7 Not, except as authorized by SMT in writing, substantially replicate products or services offered by SMT.
22.8 Not develop an application (“Applications“) that excessively burden the Skin Match Technology system, distribute spyware, adware or other commonly objectionable programs.
22.9Not develop an Application whose primary purpose is to migrate other licensees off of SMT.
22.10 Not access or use the SMT API to develop or distribute the Application in any way in furtherance of criminal, fraudulent, or other unlawful activity.
22.11 Not request more than the minimum amount of data from a SMT API needed by your Application to provide the Licensee the intended Application functionality, or any data outside any permissions granted by the Licensee.
22.12 SMT may set and enforce limits on your use of the SMT API (limiting the number of requests that you may make or the number of Licensees you may serve), in our sole discretion. You agree to, and will not attempt to circumvent such limitations. If you would like to use any SMT API beyond these limits, you must obtain SMT’s express written consent (and SMT may decline such request or condition acceptance on your agreement to additional terms and/or charges for that use). To seek such approval, contact us via support@skin-match.com.
SMT reserves the right to require you to install or update any and all software to continue using the SMT API and the Service. You acknowledge that SMT may make Updates to the SMT API from time to time, and at its sole discretion. You must implement and use the most current version of the SMT API and to make any changes to your Application that are required as a result of such Update, at your sole cost and expense.
24.1 You shall retain your ownership rights in your Applications, and SMT shall own and continue to own the API‘s, documentation and Services, including all proprietary rights related thereof. All of SMT’s rights not expressly granted by this agreement are retained.
24.2 As between you and SMT shall own all right, title and interest in any of your data that SMT receives as a result of your installation or use of an Application, and all such data shall be subject to the SMT Terms of Service and the SMT Privacy Policy.
If you access Licensee Data, you will (and will ensure that your employees, agents and service providers will):
25.1 Delete all originals, copies and reproductions of the Licensee Data within 30 days when (A) the Licensee uninstalls the Application, (B) when the Licensee terminates the contract or does not pay their license fee within the respected period (Terms of Use) (C) you receive an enforceable request to delete data from a Licensee or an involved third party (Brand/Retailer).
25.2 Not directly or indirectly transfer any data you receive from SMT (including anonymous, aggregate or derived data) to any third party or any other Application you may own, except as necessary to provide your Application's services or if expressly authorized by the Licensee.
25.3 Promptly notify SMT of any actual or suspected breach or compromise of Licensee Data (a “Data Breach”) within twenty-four (24) hours of becoming aware of such occurrence. Upon learning of the Data Breach, at your own cost, you will: (A) promptly remedy the Data Breach to prevent any further loss of Licensee Data; (B) investigate the incident; (C) take reasonable actions to mitigate any future anticipated harm to SMT, Licensees or Customers; and (D) promptly answer questions from SMT relating to the Data Breach, regularly communicate the progress of your investigation to SMT and cooperate to provide SMT with any additional requested information in a timely manner.
You agree that SMT may monitor use of the SMT API to ensure quality, improve SMT products and services, and verify your compliance with the terms. You will not interfere with this monitoring. SMT may suspend access to the SMT API by you or your Application without notice if we reasonably believe that you are in violation of the Terms.
The Service and the SMT API are provided “as-is”. SMT makes no warranties hereunder, and SMT expressly disclaims all warranties, express or implied, including warranties of non-infringement, Licenseeability and fitness for a particular purpose. Without limiting the foregoing, SMT further disclaims all representations and warranties, express or implied, that the Service or the SMT API satisfies all of your or a Licensee’s requirements or will be uninterrupted, error-free or free from harmful components.
SMT shall have no liability with respect to the Terms, the SMT API, the Services or otherwise for any direct, indirect, incidental, special, consequential, or exemplary damages, including damages for losses of profits, goodwill, use, data, or other intangible losses resulting in any way from the Terms, the Services or the SMT API, even if SMT has been advised of the possibility of such damages. In any event, SMT’s liability to you under the Terms for any reason will be limited to €100 (EURO). This limitation applies to all causes of action in the aggregate, including breach of contract, breach of warranty, negligence, strict liability, misrepresentations, and other torts.
You hereby acknowledge that SMT is not liable for the performance, non-performance or improper performance of your cosmetic products or services, including any Application (in particular the liability in relation to allergies or sensitivities, as it is your responsibility to make your Customers aware of the package inserts and inform them of any other possible risks etc.).
29.1 You agree to indemnify, defend and hold harmless SMT and the directors, officers, employees, subcontractors and agents thereof (each, an “Indemnified Party”, and collectively, the “Indemnified Parties”), with respect to any claim, demand, cause of action, debt or liability, including reasonable attorneys’ fees (collectively, “claims”), to the extent that such claim is based upon or arises out of: (a) your breach of any representation, warranty, obligation or covenant under the Terms; (b) your gross negligence or wilful misconduct; (c) any warranty, condition, representation, indemnity or guarantee relating to SMT granted by you to any Licensee or other third party; (d) your access to or use of the SMT API; (e) your breach of a Licensee Agreement; (f) any third party claim that your products or services, including any Application, infringes the intellectual property or other rights of a third party; (g) the performance, non-performance or improper performance of the your products or services, including any Application (in particular the liability in relation to allergies or sensitivities, as it is your responsibility to make your Customers aware of the package inserts and inform them of any other possible risks etc.); (h) your relationship with any Licensee; and (i) a Data Breach.
29.2 In claiming any indemnification hereunder, the Indemnified Party shall promptly provide you with written notice of any claim which the Indemnified Party believes falls within the scope of the indemnifications provided under the Terms. The Indemnified Party may, at its own expense, assist in the defense if it so chooses, provided that you shall control such defense and all negotiations relative to the settlement of any such claim and further provided that in settling any claim you will not make any admission on behalf of the Indemnified Party or agree to any terms or conditions that do or reasonably could result in any admission by, or the imposition of any liability upon, the Indemnified Party without the prior written approval of the Indemnified Party.
30.1 Termination
SMT may terminate your right to use the SMT API if you breach the Terms, or any documents incorporated by reference in the Terms.
30.2 You may not terminate the API Contract before 24 months since start date. After that you may terminate the contract with a 3-month notice.
30.3 Consequences of Termination.
Upon termination of the Terms: (a) each party shall return to the other party, or destroy (and provide certification of such destruction), all property (data, content, material) of the other party in its possession or control (including all Confidential Information); (b) you shall immediately cease displaying any SMT Trademarks on any website or otherwise; and (c) all rights granted to you hereunder will immediately cease, including the right to access and use the SMT API or it’s provided data.
31.1 Non-Exclusivity.
Nothing in the Terms is intended to create, nor shall it be construed as creating, any exclusive arrangement between the parties to the Terms. The Terms shall not restrict either party from entering into similar arrangements with others, provided it does not breach its obligations under the Terms by doing so, including any confidentiality obligations.
31.2 Notice.
Any notice, approval, request, authorization, direction or other communication under the Terms shall be given in writing and shall be deemed to have been delivered and given for all purposes (a) on the delivery date if delivered personally, or by email; (b) two (2) business days after deposit with an internationally recognized commercial overnight courier service, with written verification of receipt; or (c) five (5) business days after deposit in certified or registered mail, return receipt requested, postage and charges prepaid, to the address provided.
If you have any questions about these Terms of Service or the use of our Services, please contact us at questions@skin-match.com.
Skin Match Technology Switzerland AG
General-Wille Strasse 18,
8002 Zürich
Effective Date: August 20th, 2021