Mary Kay®<sup>®</sup> Skin Analyzer Terms of Service

Mary Kay®^® Skin Analyzer Terms of Service

Welcome to the Mary Kay®^® Skin Analyzer mobile application (individually and collectively, the "Application"), owned, operated and provided by Mary Kay Inc. ("Mary Kay", "we", "us" or "our"). We maintain and make available the Application on Mary Kay website(s) (including, without limitation, mobile website(s)) and mobile app(s) for your personal, non-commercial use if you are a customer ("Customer"), and, if you are an Independent Beauty Consultant ("IBC"), for use in your Mary Kay business only. By accessing and using the Application, you acknowledge and agree to abide by these Terms of Service (the "Agreement"), the terms of services of any applicable platform provider, including, but not limited to, Apple (App Store), Google (Google Play), and/or applicable social media platform (each, a "Platform Provider"), as well as all applicable laws, rules and regulations. A Customer or an IBC may be referred to as "you" or "your" in these Terms of Service.

PLEASE READ THE AGREEMENT CAREFULLY BEFORE USING THE APPLICATION. BY ACCESSING, DOWNLOADING OR USING THE APPLICATION, YOU AGREE TO THE FOLLOWING TERMS OF USE. IF YOU DO NOT AGREE TO THE TERMS OF THE AGREEMENT, YOU MAY NOT USE THE APPLICATION.

The Agreement is subject to change by us at any time, effective when posted on the Application. Your continued use of the Application after such notice will constitute acceptance by you of such changes. For this reason, we encourage you to review the Agreement regularly.

Overview. After downloading the Application to your Android or Apple®^®^® iOS product(s) (Apple - PHONE: iPhone 7 and newer, TABLET: iPad Mini 6 or newer, iPad Air 4 or newer, OS: 11.0 and newer Android – OS: 10 or newer, GHz: 1.3 processor or higher, RAM: higher than 1.5 GB, ABI Limit: mips, x86, xx86_64 are excluded), minimum 5MP camera requirement, the Application will allow a Consumer or IBC to take a face scan and have the Application analyze the subject’s skin. Based on its analysis, the Application will provide Mary Kay®^®^® product recommendations.

Data Use and Retention

IBC:Upon obtaining the Customer’s consent, the Application will allow an Independent Beauty Consultant to scan a Customer’s face, and analyze the Customer’s skin, and save the image, Customer’s name and analysis The Application may capture the Customer’s face geometry (i.e., “biometric data”) for the purpose of providing skincare and cosmetic recommendations. The Customer's consent is documented by the Customer checking a consent box on the IBC’s mobile device. If a Customer's name, biometric data, photo and analysis is saved, it will be saved only on an Independent Beauty Consultants’s mobile device (and not sent to or stored on the Application's vendor's servers or Mary Kay's servers) for one week to allow the Independent Beauty Consultant to build the Customer’s skin care regimen and provide customer service. After that period, the Application will automatically delete a Customer’s images, name and analysis from the Independent Beauty Consultant’s mobile device. Accordingly, once the Application is deleted, all the Customer data that has been saved will be deleted. Furthermore, if you download and use the Application on multiple mobile devices, there will be no data synching or carryover between your mobile devices.
Customer: If the Customer provides his or her consent to an Independent Beauty Consultant to save the Customer's scan, name, biometric data and analysis as described above, such Customer's information will be saved only on the Independent Beauty Consultant’s device (and not sent to or stored on the Application's, vendor's, or Mary Kay's servers) for a period of one week. After this one-week period, the Application will automatically delete a Customer's image, name, and analysis from the Independent Beauty Consultant’s mobile device.
Consumer: Your image, biometric data, and analysis will only remain on the app while you are using the app for the purpose of analyzing your skin and providing product recommendations. Once you receive your analysis and recommendations and end your session, your image, analysis, biometric data and recommendations will not be saved in the Application or on your device, and will not be sent to or stored on the Application vendor’s servers or Mary Kay’s servers. All Users: We may collect data about your use of the Application to improve the Application and the experience, and such data will only involve anonymized analytics without using any of your identifying personal information.

Acknowledgement. This Agreement incorporates by reference our Mary Kay website Terms of Use agreement (the “Terms of Use”) available at https://www.marykay.ca/en-CA/Pages/Terms-Of-Use.aspx and our Privacy Policy (the “Privacy Policy”) available at https://www.marykay.ca/en-ca/pages/privacy-policy. By accessing, downloading or using the Application, you agree and understand that you are bound by the Terms of Use and the Privacy Policy.

User Accounts, Maintenance and Support. Only you may use your Application user account, and you are responsible for all activity that takes place with your user account. Platform Providers are not responsible to provide maintenance and support services for the Application.

License Terms.

1. You agree and understand that the Application is a tool offered for your personal use if you are a Customer and in your Mary Kay business if you are an IBC. You agree to use this tool only for that purpose. You acknowledge and agree that the Application is provided under license, and not sold, to you. You do not acquire any ownership interest in the Application under the Agreement, or any other rights thereto other than to use the Application in accordance with the license granted, and subject to all terms, conditions, and restrictions, under the Agreement.

2. You agree to respect the privacy of every individual whose information you collect and store using the Application and shall use the information only for the purposes for which the information was provided to you and for no other purpose.

3. You agree to obtain any necessary Customer consent before saving Customer photos, analysis, and/or information into the Application, and understand that you are responsible for maintaining any and all evidence of such consent, as applicable.

4. You agree to comply with any and all applicable laws and regulations regarding the collection, storage and use of information provided to you, including compliance with data protection and privacy laws in the jurisdictions in which you use the Application.

5. You agree to abide by the Consumer to Independent Beauty Consultant Personal Web Site Privacy Policy as well as the Mary Kay Consumer Privacy Policy (located online at ), to the extent applicable.

6. Realizing that the Application may be temporarily interrupted for reasons beyond Mary Kay’s control, terminated permanently, or that you may be denied access, you understand it is solely your responsibility to maintain, backup and/or retain any and all of your Customer information. You understand that the Application is an optional, supplemental service made available to you to use in your sole discretion for your personal use if you are a Customer or as part of your independent business if you are an IBC. Customer information is the property of the IBC and will not be used by Mary Kay or disclosed by Mary Kay except as set forth herein to other parties without your permission, except as may be required by law. We may from time to time in our sole discretion develop and provide Application updates, which may include upgrades, bug fixes, patches, other error corrections, and/or new features (collectively, including related documentation, "Updates"). Updates may also modify or delete in their entirety certain features and functionality. You agree that we have no obligation to provide any Updates or to continue to provide or enable any particular features or functionality.

7. You understand that Mary Kay is not responsible for any incorrect or inaccurate information entered by you or any third party (including, but not limited to, Customer and other information), or caused by third parties entering the Application or by any of the equipment or programming associated with or utilized in the Application, and Mary Kay assumes no responsibility for any error, omission, interruption, deletion, defect, delay in operation or transmission, communications line failure, destruction or unauthorized access to the Application. You agree that you shall be liable for any and all taxes, duties, charges and licenses that may be assessed or levied by any authority relating to or arising out of your use of the Application, and shall indemnify and hold Mary Kay harmless from and against any such liability, tax, penalty, interest or other costs.

8. Your failure to comply with the Agreement or, if you are an IBC, to have an active/valid Independent Beauty Consultant agreement, may result in suspension or termination of your access to the Application, without notice, in addition to our other remedies.

9. We also reserve the right to discontinue the Application, suspend or revoke your access to the Application, or change the content or formatting of the Application, at any time for any reason without notice to you, and to require the immediate cessation of any specific use of the Application. If we suspend or terminate your access or account, you agree that all other provisions for which survival is equitable or appropriate will survive such suspension or termination.

10. With respect to the Application, we grant you a non-exclusive and non-transferable, revocable license to download and install one (1) copy of the Application to your mobile device, and to access and use the Application, solely for your personal use if you are a Customer and solely for your own Mary Kay business use if you are an IBC, subject to the terms of this Agreement and to the terms of service of any applicable Platform Provider.

11. The Application provides features that allow you to upload content, images, pictures, Customer data and or other materials (collectively the "Submissions") through the Application. You acknowledge and agree that you are solely responsible for the accuracy of your Submissions. You acknowledge and agree that you will not: (i) interfere or attempt to interfere with the proper workings of the Application, or do anything which in the sole discretion of Mary Kay imposes an unreasonable or disproportionately large load on the Application infrastructure; (ii) post or transmit any unlawful, false, misleading, threatening, abusive, libellous, defamatory, obscene, vulgar, pornographic, profane or indecent information of any kind; (iii) post or transmit any email addresses, images, content, software or other material, which violates or infringes upon the rights of others, including material which constitutes an invasion of privacy or publicity rights or which is protected by any intellectual property rights, including, without limitation, copyright, patent, trade secret, trademark or other proprietary rights, without permission from the owner or rights holder; (iv) harvest or otherwise collect or store any information (including personally identifiable information) about other users of the Application or individuals that are not your Customers, including e-mail addresses, without the express consent of such users; (v) for the purpose of misleading others, create a false identity of the sender or the origin of a message, forge headers or otherwise manipulate identifiers in order to disguise the origin of any material transmitted on or through the Application; (vi) post or transmit any Submission that promotes racism, bigotry, hatred or physical harm of any kind against any group or individual, could be harmful to minors, harasses or advocates harassment of another person, provides material that exploits people under the age of 18 in a sexual or violent manner, or provides instructional information about illegal activities; (vii) post or transmit any Submission which contains any form of destructive software such as a virus, worm, Trojan horse, time bomb, bot, or any other harmful components or any other computer file, program or code, designed to interrupt, destroy or limit the functionality of any computer software, hardware or telecommunications equipment, or provides for or creates any of the foregoing; or (viii) post or transmit junk mail, chain letters, unsolicited mass mailing or spam; or (ix) except as allowed by these Terms of Service for IBCs, use the Application for commercial purposes without Mary Kay’s prior written consent, including, without limitation, uploading any Submissions which contain advertising or which engage in commercial activities or sales, or which involve contests, advertising, pyramid schemes or other forms of solicitation. Mary Kay reserves the right, in its sole discretion, to edit or remove any Submission, whether or not the Submission is in violation of the provisions hereof or otherwise objectionable. Mary Kay is not responsible for the content of any Submission.

12. You represent and warrant that: (i) your Submissions, your use of the Application, and the use of the Submissions by us and/or our sublicensees shall not violate any applicable law or regulation, including, but not limited to, any applicable advertising or other laws or regulations, or cause injury to any person or damage to any property; (ii)your Submissions, your use of the Application, and the use of the Submissions by us and/or our sublicensees will not infringe or misappropriate any copyright, trademark, service mark, trade secret, patent, or other intellectual property or proprietary rights of any third party, including, but not limited to, rights of privacy or publicity; (iii) your Submissions and your use of the Application will not violate any agreements between you and a third party; (iv) (a) to the extent you make statements about Mary Kay’s products or services, such statements represent your current honest opinions, findings, beliefs, or experience; (b) to the extent that you suggest you use or have used Mary Kay’s products or services, you do in fact use them or have in fact used them; and (c) to the extent that you express a preference over other similar products or services, you do in fact have such preference.

13. Except as allowed by these Terms of Service for IBCs, you may not use the Application, your Submissions or any third party Submissions for any commercial purposes, including, without limitation, to sell a product or service; to increase traffic to your website for commercial reasons, such as advertising sales; to take the results from the Application and reformat and display them, or use any robot, spider, other device or manual process to monitor or copy any content from the Application. In addition, you may not: (i) copy, modify or distribute the Application for any purpose; (ii) transfer, sublicense, lease, lend, rent or otherwise distribute the Application, your Submissions or any third party Submissions to any third party; (iii) decompile, reverse-engineer, disassemble, or create derivative works of the Application, your Submissions or any third party Submissions; (iv) make the functionality of the Application available to multiple users through any means; or (v) use the Application, your Submissions or any third party Submissions in any unlawful manner, for any unlawful purpose, or in any manner inconsistent with the Agreement.

14. We and/or our licensors are the exclusive owners of all copy, software, graphics, designs and all copyrights, trademarks and other intellectual property or proprietary rights contained on or used in connection with the Application. You acknowledge and agree that the use of Mary Kay trademarks in any form of electronic advertising, including the Internet, is not authorized unless approved by Mary Kay. You acknowledge that by using the Application, you agree to only use the copyrighted images and Mary Kay trademarks made available through the Application in conjunction with your use of the Application and for no other purpose. You agree not to modify or alter the copyrighted images and Mary Kay trademarks made available through the Application. All rights not granted under this Agreement are reserved by us and/or our licensors.

15. You represent and warrant that (i) you are not located in a country that is subject to a U.S. Government embargo, or that has been designated by the U.S. government as a "terrorist supporting" country and (ii) you are not listed on any U.S. Government list of prohibited or restricted parties.

16. You will comply with all applicable third-party terms and conditions when using the Application, including, but not limited to, those of any wireless data service provider or any social media platform, if applicable. You acknowledge and agree that you are not allowed to share Application-related pictures or skin analysis results with any third party, including via Platform Providers. We provide the Application and any and all or your Submissions "as is" and shall not be held liable for your use of your Submissions, the Application, or any other information, content, or material contained therein. The information presented on or through the Application is made available solely for general information purposes and convenience. We do not warrant the accuracy, completeness or usefulness of this information. Any reliance you place on such information is strictly at your own risk. Mary Kay disclaims all liability and responsibility arising from any reliance placed on such materials by you or by anyone who may be informed of its contents. Mary Kay offers and displays the products on the Application as reasonable representations and availability of the color, configuration, design, texture, and/or look of its products. However, we cannot guarantee that your screen’s display of merchandise color or detail will be accurate. On occasion, the Application may contain incomplete information, typographical errors, or inaccuracies as to description, pricing, sizing, color or availability. Additionally, note that certain weights, measures and similar descriptions are approximate and are provided for convenience purposes only. We reserve the right to correct errors at any time without prior notice (including after an order has been placed). TO THE FULLEST EXTENT ALLOWED BY LAW, WE DISCLAIM ALL WARRANTIES WITH REGARD TO THE APPLICATION, YOUR SUBMISSIONS, OR ANY THIRD-PARTY SUBMISSIONS, INCLUDING, BUT NOT LIMITED TO, WARRANTIES OF MERCHANTABILITY, NON-INFRINGEMENT AND FITNESS FOR A PARTICULAR PURPOSE.

17. YOU UNDERSTAND AND AGREE THAT YOU DOWNLOAD OR OTHERWISE OBTAIN YOUR SUBMISSIONS OR ANY THIRD-PARTY SUBMISSIONS AND OTHER MATERIAL OR DATA THROUGH THE USE OF THE APPLICATION AT YOUR OWN DISCRETION AND RISK AND THAT YOU WILL BE SOLELY RESPONSIBLE FOR ANY DAMAGES TO YOUR MOBILE PHONE OR OTHER DEVICE OR LOSS OF DATA THAT RESULTS FROM THE DOWNLOAD OF SUCH PROGRAM, MATERIAL OR DATA. Under no circumstances shall we or our affiliates, our licensors or Platform Providers be liable to you on account of your use or misuse of or reliance on the Application.

18. CERTAIN STATE LAWS IN THE UNITED STATES, AND POTENTIAL LAWS IN OTHER COUNTRIES, DO NOT ALLOW LIMITATIONS ON IMPLIED WARRANTIES OR THE EXCLUSION OR LIMITATION OF CERTAIN DAMAGES. IF THESE LAWS APPLY TO YOU, SOME OR ALL OF THE ABOVE DISCLAIMERS, EXCLUSIONS OR LIMITATIONS MAY NOT APPLY TO YOU, AND YOU MIGHT HAVE ADDITIONAL RIGHTS.

Limitation of Liability. UNDER NO CIRCUMSTANCES WILL MARY KAY, ANY APPLICATION VENDOR, ANY PLATFORM PROVIDER OR THEIR RESPECTIVE SUBSIDIARIES OR AFFILIATES, OR ANY OF THEIR OFFICERS, DIRECTORS, EMPLOYEES, OR AGENTS OR ANY OF THEIR RESPECTIVE SUCCESSORS OR ASSIGNS (COLLECTIVELY, THE "APPLICATION PARTIES") BE LIABLE TO YOU FOR ANY DAMAGES WHATSOEVER WITH RESPECT TO YOUR USE OF THE APPLICATION OR YOUR SUBMISSIONS OR ANY THIRD PARTY SUBMISSIONS, INCLUDING, WITHOUT LIMITATION, ANY DIRECT, INDIRECT, INCIDENTAL, CONSEQUENTIAL, EXEMPLARY OR SPECIAL DAMAGES EVEN IF ADVISED OF THE POSSIBILITY OF THE SAME. NOTWITHSTANDING THE FOREGOING, MARY KAY’S LIABILITY SHALL BE LIMITED TO THE AMOUNT OF SUBSCRIPTION FEES YOU PAID, IF ANY, FOR USING THE APPLICATION.

19. CERTAIN STATE LAWS IN THE UNITED STATES, AND POTENTIAL LAWS IN OTHER COUNTRIES, DO NOT ALLOW LIMITATIONS ON IMPLIED WARRANTIES OR THE EXCLUSION OR LIMITATION OF CERTAIN DAMAGES. IF THESE LAWS APPLY TO YOU, SOME OR ALL OF THE ABOVE DISCLAIMERS, EXCLUSIONS OR LIMITATIONS MAY NOT APPLY TO YOU, AND YOU MIGHT HAVE ADDITIONAL RIGHTS.

19. Indemnity. You agree to indemnify and hold the Application Parties harmless from and against any liability, claim or demand, and any losses, damages, costs, or expenses (including, without limitation, attorney's fees and expenses, court cost and cost of investigation) arising out of or in connection with your use of the Application and with such claim or demand made by any other party due to or arising out of your breach of this Agreement or the documents it incorporates by reference, or your violation of any law or the right of another party.

20. Third-Party Services. If you use a service, feature, or functionality that is operated by a third party and made available through the Application (including services we jointly offer with the third party), each party's terms will govern the respective party's relationship with you. Mary Kay is not responsible or liable for those third party's terms or actions taken under the third party's terms.

21. Push Notifications. When you are logged in to the Application, you may receive a message asking if you would like to allow push notifications. Push notifications are a way for the Application to deliver information, including alerts, updates, and promotions, to your mobile device. Push notifications can be delivered whether or not you are currently logged in to and/or using the Application and whether or not your device is in locked and/or in sleep mode. Mary Kay does not charge a fee for sending push notifications, but fees may be imposed by your carrier or service provider depending on your data plan. If you do not wish for others to view your notifications, you should establish a passcode lock for your device, lock it when not in use, and guard your device’s screen when it is unlocked. If you do not wish to receive push notifications from us, click “Don’t Allow” or other similar button when prompted. If you allow push notifications from us but later decide you no longer want to receive them, you can adjust your settings in the Application menu, if available, or turn them all off through your device notifications settings.

22. Data Charges and Mobile Devices. You are responsible for any mobile charges that you may incur for using the Application, including text-messaging and data charges and overages. If you are unsure what those charges may be, you should ask your service provider before using the Application.

23. Users of the Apple Platform. If you download and use our Application on an iPhone^®, iPad^®^®: You, the end-user of this Application, acknowledge that this Agreement is entered into by and between Mary Kay and you and not with Apple, Inc., and Apple, Inc. is not responsible for the Application and/or its content. Notwithstanding the foregoing, you acknowledge that Apple, Inc. and its subsidiaries are third-party beneficiaries of this Agreement and that Apple, Inc. has the right (and is deemed to have accepted the right) to enforce this Agreement. You acknowledge that Apple, Inc. has no obligation whatsoever to maintain or support the Application. You acknowledge that you have reviewed the App Store Terms and Conditions (located online at ). This Agreement incorporates by reference the Licensed Application End User License (the “LAEULA”) published by Apple, Inc. (located online at: ). For purposes of this Agreement, the Application is considered the “Licensed Application” as defined in the LAEULA and Mary Kay is considered the “Application Provider” as defined in the LAEULA. If any terms of this Agreement conflict with the terms of the LAEULA, the terms of this Agreement shall control. You further acknowledge and agree that in no event will Apple, Inc. be responsible for any claims relating to the Application (including, without limitation, a third party claim that the Application infringes that third party’s intellectual property rights) or your use or possession of the Application, including, but not limited to: (i) product liability claims; (ii) any claim that the Application fails to conform to any applicable legal or regulatory requirement; and (iii) claims arising under consumer protection or similar legislation. If you paid for the Application, and if the Application fails to conform to any applicable warranty (if any), please notify Apple, and Apple will refund to you the price you paid for the Application. To the maximum extent permitted by applicable law, Apple will have no other warranty obligation whatsoever with respect to the Application, and any other claims, losses, liabilities, damages, costs or expenses attributable to failure to conform with a warranty made under this Agreement (if any), will be our sole responsibility.

24. Relationship of Parties. You acknowledge and agree that you are an independent contractor and are not a joint venturer with, or franchisee, partner, agent or employee of Mary Kay. You acknowledge and agree you have no power or authority to incur any debt, obligation or liability on behalf of Mary Kay.

25. Governing Law; Venue. By using the Application, you agree that the statutes and laws of the Canada without regard to conflicts of laws principles, will apply to all matters relating to use of the Application, and you agree that any litigation shall be subject to the exclusive jurisdiction of the provincial or federal courts in Canada. Your use of the Application may also be subject to other local, provincial, national, or international laws. You irrevocably agree to accept the exclusive personal jurisdiction and waive any objections to the venue of such courts. Any claims asserted by you in connection with the Application must be asserted in writing to Mary Kay within one year of the date such claim first arose, or such claim is forever waived by you. Each claim shall be adjudicated individually, and you agree not to combine your claim with the claim of any third party.

Contact Information. Should you have any questions, complaints, or comments, you may contact us toll free at 1-800-MARY KAY (1-800-627-9529) or visit us at www.marykay.ca and click "Contact Us".

26. Privacy. The Application is intended for use by persons aged 13 and older. We have no interest in collecting personally identifiable information from children under the age of 13. Additionally, the privacy of personal information is very important to us. For more on what information we collect and how we use such information, please read our Privacy Policy located at . Although the Application may allow you to add information from your mobile device contacts, you agree to obtain any necessary Customer consent before entering Customer information into the Application, and understand that you are responsible for maintaining any and all evidence of such consent, as applicable.