Terms and Conditions of Use

1. Who you are agreeing with

These Terms and Conditions (“Terms”) are a contract between you and XYM Health LLC, an Oregon limited liability company doing business as The Cosmetic Manufacturer (“TCM”, “we”, “us”, “our”), with a place of business at [STREET ADDRESS], Portland, Oregon.

They govern your access to and use of thecosmeticmanufacturer.com, any subdomain of it, the brand, manufacturer, consultant and administrative workspaces, our APIs, and anything else we make available that links to these Terms (together, the “Platform”).

By creating an account, joining the waitlist, claiming a profile, submitting a brief, requesting or accepting an introduction, or otherwise using the Platform, you accept these Terms. If you are doing any of that for a company, you represent that you have authority to bind that company, and “you” means both you and that company.

If you do not accept these Terms, do not use the Platform.

You must be at least 18 years old and using the Platform for business purposes. The Platform is a business tool. It is not directed at consumers or at children, and we do not knowingly collect information from anyone under 16.

2. Definitions

3. What the Platform is, and what it is not

3.1 What it is

TCM is an information and matchmaking service. We collect information about Manufacturers, structure it, and show Brands the Manufacturers whose stated and inferred capabilities best fit a Brief. Where both sides consent, we release identities to each other and provide a shared workspace so they can talk.

3.2 What it is not

This is the section that matters most. You agree that TCM:

• Is not a party to any agreement between a Brand and a Manufacturer. Every quote, purchase order, master supply agreement, specification, quality agreement, nondisclosure agreement, payment term and delivery term between a Brand and a Manufacturer is exclusively between them.
• Is not a manufacturer or a responsible person. TCM is not a manufacturer, formulator, packer, distributor, labeler, importer, “responsible person” under the Modernization of Cosmetics Regulation Act of 2022, “manufacturer” under 21 CFR or any comparable regime, or Responsible Person under Regulation (EC) No 1223/2009 or its United Kingdom equivalent. TCM does not take title to, handle, test, store or ship any product or ingredient.
• Is not a broker, agent, fiduciary, employer, joint venturer or partner of any User, and has no authority to bind any User.
• Does not inspect facilities. Nothing on the Platform is a site audit, a GMP audit (including against ISO 22716 or 21 CFR Part 211), a quality system assessment, or a substitute for your own due diligence.
• Does not verify pricing, lead times, capacity, minimum order quantities, certifications, insurance or financial condition. This includes ISO 22716, cGMP, NSF, organic, cruelty free and any other third party certification. Where those appear, they are the Manufacturer’s statement or a reading of a public record, shown as such.
• Does not provide legal, regulatory, safety, toxicological, financial, tax or accounting advice. Regulatory determinations, including whether a product is a cosmetic or an over the counter drug, whether a claim is permissible, and what a label must say, are yours to make with qualified professionals. Nothing on the Platform is a safety substantiation record, a cosmetic product safety report, or a toxicological assessment.
• Does not guarantee any outcome. Not that a Shortlist contains the best option, not that any Manufacturer will respond, accept, quote, perform, or stay in business, and not that any Brand will place an order or pay for one.
• Does not sell placement, and does not rank on what you pay. No Manufacturer can buy a position in a Shortlist, and we do not accept payment to rank. A Manufacturer’s Billing Election, its subscription status, its payment history and the amounts it has paid us are not inputs to matching, scoring, gating, ranking or Shortlist composition, and are not available to the systems that produce them. Neither is the volume of Introductions a Manufacturer has accepted or declined, or its acceptance rate.

3.3 Regulated product gates are a convenience, not a clearance

The Platform applies automatic gates to certain product types. For example, a sunscreen, an acne treatment, an antiperspirant or an anti dandruff product is a regulated over the counter drug in the United States, and the Platform will not surface a Manufacturer that lacks drug establishment registration for such a product.

These gates are a convenience feature built on public registry data. Registry data is published by regulators on their own schedules and can lag a registration change, lapse, listing or enforcement action by weeks or months. The gates are not a regulatory clearance, an opinion on your product’s classification, or a guarantee that any surfaced Manufacturer is authorized, capable or compliant. You remain solely responsible for your product’s regulatory status.

4. Profiles, data sources, and accuracy

4.1 Where Profile data comes from

Profiles are assembled from two sources:

• Public Data, including federal establishment registrations, inspection results, enforcement records, and information companies publish about themselves; and
• Submitted Data, meaning information a Manufacturer gives us directly, including when it claims its Profile.

The Platform distinguishes between facts at different confidence levels. A registry verified fact, a fact a Manufacturer stated, and a fact the system inferred from other evidence are scored and displayed differently. A displayed confidence level is a description of where a fact came from. It is not a warranty that the fact is true, current or complete. The categories of source we draw on, and what each confidence level means, are described at [thecosmeticmanufacturer.com/methodology].

4.2 Accuracy limits you accept

You acknowledge and agree that:

• Public records lag. An inspection, registration change, enforcement action, closure or ownership change may exist that has not yet reached the sources we read.
• Automated extraction and matching can produce errors, omissions and stale values.
• A Manufacturer’s silence on a requirement is treated as unknown, not as a failure, so a Shortlist may include Manufacturers whose fit on a given requirement has not been established.
• Scores, rankings, verdicts, flags and adjustments are opinions generated by software from imperfect inputs, offered to help you narrow a search. They are not certifications, endorsements, recommendations, credit opinions or statements of fact about any company.

4.3 How we present Public Data

Each Profile fact indicates the category of source it came from, such as a federal registry, an inspection or enforcement record, or the company’s own publications, together with its confidence level and, where available, the date of the underlying record.

Our specific sources, citations and evidence records are not published. They are part of the compiled directory described in Section 10.3 and are our confidential information under the Mutual NDA. A Manufacturer may request the underlying source for any fact on its own Profile through the process in Section 4.4.

Flags describe the underlying record. We do not attach conclusory labels to a Manufacturer, such as unsafe, risky or avoid.

4.4 Corrections and right of reply

If you represent a company and believe something on its Profile is wrong, write to corrections@thecosmeticmanufacturer.com identifying the company and the specific item. We will acknowledge your request within [two (2)] business days and resolve it within [ten (10)] business days, correcting what we find to be wrong and telling you what we changed and why. On request, we will identify to a Manufacturer the source of any Public Data fact on its own Profile. That disclosure is our confidential information under the Mutual NDA.

Where a Public Data item is accurate as a reading of the public record but you believe it lacks context, you may add a short statement of reply, which we will display alongside that item.

Claiming a Profile lets a Manufacturer maintain its own capability, capacity, minimum and lead time data going forward. Correcting a Profile does not make us the author of, or responsible for, the underlying public record.

4.5 Manufacturer accuracy obligation

If you are a Manufacturer, you represent that information you submit or confirm is accurate and not misleading, that you hold the registrations, licenses, certifications and insurance you claim (including any insurance carriers and limits you display), and that you will update your Profile promptly when a material fact changes. You are solely responsible for the consequences of inaccurate Submitted Data, including a Brand relying on it.

5. Accounts, workspaces and roles

• Registration. You must give accurate account information and keep it current. You are responsible for everything that happens under your account and for the confidentiality of your credentials. Tell us promptly at security@thecosmeticmanufacturer.com if you suspect unauthorized access.
• Seats and teams. You may invite colleagues into your workspace. You are responsible for their use of the Platform and for removing access when someone leaves.
• Consultants. A Brand may grant a Consultant a defined level of access to its workspace and may change or revoke it at any time. A Consultant’s access is derivative of the Brand’s grant. A Consultant is not our agent and we do not supervise, endorse or warrant a Consultant’s advice.
• Role restrictions. Matching, search and Profile endpoints are available to Brands, Consultants and TCM staff. They are not available to Manufacturers, because the roster is our product and running Briefs against it is enumeration, not use. Attempting to reach them through another role, another account, or automated means is a material breach.
• Claiming a Profile. By claiming a Profile, you represent that you are authorized to act for that company. We may require verification before a claim takes effect, including control of the company’s email domain or a match against a corporate registry. Where a claim is contested, we may suspend the Profile until it is resolved. A claim made without authority is void, is a material breach, and does not bind the company named in the Profile.
• Suspension. We may suspend or terminate an account, with or without notice, where we reasonably believe there has been a breach of these Terms, a risk to the Platform or to other Users, a legal requirement, or fraudulent or abusive activity.

6. Introductions: how identities cross

The Introduction is the core mechanic of the Platform, and it is built on double consent.

6.1 The states

• Requested. A Brand requests an Introduction, from a Shortlist row or directly from a Profile. The Manufacturer sees the Brief and an anonymous descriptive label (for example, “Emerging skincare brand”). It does not see the Brand’s identity. The Brief is protected by the Mutual NDA from this moment.
• Awaiting approval. The Manufacturer accepts. This is the first consent.
• Declined. The Manufacturer passes, with a reason. The Brand is told the slot went unfilled. We do not tell the Brand which Manufacturer declined, and passing is free.
• Accepted. The Brand confirms. This is the second consent, and this is the moment identities cross. The shared workspace opens, and the Manufacturer’s name, address and business contact details are released to the Brand, and the Brand’s name and business contact details are released to the Manufacturer. The Introduction becomes a Qualified Introduction.

6.2 Rules that follow from this

• Consent is per Introduction, not per Brief or per project. Two Manufacturers on one Brief are two separate handshakes. Confirming one does not reveal the Brand to the other.
• Anonymity before acceptance is achieved by not sending the data, not by hiding it in the interface. We build a Manufacturer safe projection of the Brief and the Brand’s identity is not read into it until the Introduction reaches accepted.
• A Brand may request an Introduction without a Brief, from a Profile. The anonymous label still governs until the Brand confirms.
• No fee arises from an Introduction that did not reach the accepted state. If a Manufacturer declines, or a Brand never confirms, and the two later deal with each other directly, nothing is owed to TCM.
• Neither side owes the other anything by requesting or accepting an Introduction, beyond the obligations in the Mutual NDA and, on the Manufacturer’s side, the fee obligations in Section 8.
• We may record and retain the Introduction record, including timestamps, states and the parties, for as long as needed to administer fees and resolve disputes, and after account closure where it evidences a commercial event between two parties.

7. Confidentiality and controlled data sharing

7.1 Confidentiality is governed by the Mutual NDA

Confidentiality on the Platform is governed by the Mutual Nondisclosure Agreement (the “Mutual NDA”), which is a separate agreement you accept when you create an account, claim a Profile, or submit a Brief, and which is incorporated into these Terms by reference. The current version is available at [thecosmeticmanufacturer.com/legal/nda] and from your account settings, together with every version you have accepted.

The Mutual NDA covers three relationships at once:

• between you and TCM, in both directions;
• between you and any other User whose information reaches you, or who receives yours, attaching at the moment information first moves rather than at the completed Introduction; and
• your obligations with respect to the directory, Profiles, evidence records and matching logic, which are TCM’s confidential information.

Where you and a counterparty sign a separate nondisclosure agreement covering the same subject matter, that agreement controls between the two of you to the extent it conflicts with the Mutual NDA, and the Mutual NDA continues to govern each of you and TCM.

Nothing in the Mutual NDA creates, limits, waives or alters any fee obligation. Fees are governed by Section 8 and by the Manufacturer Commercial Terms.

7.2 The sharing rule

Your data moves to another User only when you direct it to, and only to the party you direct it to. Specifically:

• A Brief reaches a Manufacturer only when the Brand requests an Introduction with that Manufacturer, and reaches it in anonymized form until the Brand confirms.
• A Brand’s identity reaches a Manufacturer only at the accepted state of an Introduction with that Manufacturer.
• A Manufacturer’s name and address reach a Brand only at the accepted state of an Introduction with that Brand.
• Documents, specifications, formulas, pricing and messages exchanged in a shared workspace reach only the parties to that workspace and their invited seats.
• A Consultant sees only what the Brand that invited it has granted, at the level the Brand set.
• An electronic action in the Platform, such as confirming an Introduction, sharing a document, or granting workspace access, is your instruction to share, is logged, and is as effective as a signature.

We do not sell personal data and we do not share it for cross context behavioral advertising. How we handle personal data is described in our Privacy Policy at [thecosmeticmanufacturer.com/privacy].

7.3 What we will not publish

Which Brands work with which Manufacturers is not published. Aggregate and verified product counts may be public. The Brands behind them are not. Outcome and performance data is published only in aggregated form and is never attributed to a named Manufacturer or a named Brand.

7.4 Service providers and legal disclosure

We use service providers to run the Platform, including hosting, database and authentication, email and notification delivery, scheduling, payment processing and analytics. They receive only what they need to perform their function and are bound to confidentiality. A current list is at [thecosmeticmanufacturer.com/legal/subprocessors]. We may disclose data where required by law, subpoena or court order, or to establish or defend a legal claim, and we will give you notice where we are lawfully able to.

7.5 Aggregated and deidentified data

We may create and use aggregated, deidentified and statistical data derived from Platform use, including match performance, category demand and outcome data, to operate, improve and publicize the Platform. Such data will not identify you, your counterparty, your Brief, your formulas or your commercial terms, and we will not reverse engineer it back to an identifiable party or permit anyone else to. We do not use your Submitted Data to train, fine tune or evaluate any model made available outside TCM.

7.6 Formulas, specifications and samples

We do not want your formula. Nothing on the Platform requires you to upload a full formulation, and where you choose to share one with a counterparty you do so under the Mutual NDA or your own agreement. TCM claims no rights in, and accepts no responsibility for the protection of, formulations, specifications, tooling, artwork or samples exchanged directly between a Brand and a Manufacturer outside the Platform.

8. Fees: who pays what, and when

8.1 Brands pay nothing

Brands pay nothing to use the Platform. No signup fee, no subscription, no listing fee, and no fee to submit a Brief, receive a Shortlist, request an Introduction, confirm an Introduction, or use a shared workspace. There is no amount a Brand can owe TCM under these Terms.

If TCM ever offers a paid product to Brands, it will be under separate terms that a Brand affirmatively accepts, and nothing about the free use of the Platform will depend on it.

8.2 Manufacturers pay nothing to be found

A Manufacturer pays nothing to be listed, to be found, to be shortlisted, to receive an Introduction, or to accept one. There is no listing fee and no fee at the handshake.

A Manufacturer is billed under one of two methods, which it chooses. Both are set out below, and the one that applies to an account is recorded in that account’s Manufacturer Commercial Terms.

8.3 The Commission Election: pay only on success

Under the Commission Election, a Manufacturer owes a Success Fee only when a Covered Transaction occurs, meaning:

• the Manufacturer and the Brand reached a Qualified Introduction on the Platform;
• within the Attribution Term, the Brand issues and the Manufacturer accepts an Initial Purchase Order; and
• the Manufacturer receives payment against it.

The Success Fee is [five percent (5%)] of Attributed Revenue received during the Revenue Term. Purchase orders placed and paid within the Revenue Term are included, whether they relate to the original project or to later projects with the same Brand. No Success Fee accrues on amounts received after the Revenue Term ends.

The rate, the Attribution Term and the Revenue Term are set out in the Manufacturer Commercial Terms the Manufacturer accepted for its account. They are presented in the Platform before acceptance and restated at the point they bind. The number a Manufacturer is shown is the number the Platform bills.

8.4 The Access Subscription: a flat annual fee instead

Under an Access Subscription, a Manufacturer pays [thirty thousand United States dollars (US$30,000)] per year, and owes no Success Fee on any Attributed Revenue received during a Subscription Period, from any Brand, whether introduced before or during that period.

• It is a substitute, not an addition. While an Access Subscription is in force and paid, the Success Fee in Section 8.3 does not apply to Attributed Revenue received during that Subscription Period. There is no reporting obligation under Section 8.7 and no verification right under Section 8.8 with respect to that period.
• Ceiling and overage. An Access Subscription covers Attributed Revenue up to [US$750,000] received in a Subscription Period. Attributed Revenue above that ceiling in the same Subscription Period is billed at [three percent (3%)]. Where a ceiling applies, Sections 8.7 and 8.8 apply only for the purpose of determining whether the ceiling has been exceeded.
• Annual term and renewal. A Subscription Period runs twelve months and renews automatically for successive twelve month periods unless either party gives written notice of nonrenewal at least thirty (30) days before the period ends. TCM will give notice of the renewal price at least sixty (60) days before renewal. A price change never applies within a period already paid for.
• Payment. The fee is invoiced in advance and due net [30] from the invoice date, or in [four] equal quarterly instalments where the Manufacturer elects instalment billing at signup. If an instalment is not paid within [30] days of its due date, the Access Subscription ends and the Commission Election applies from that date under paragraph 8. The fee is nonrefundable except under paragraph 6.
• Prospective only, and no retroactive relief. An Access Subscription applies only from the date it takes effect. It does not extinguish, reduce or refund a Success Fee that accrued before that date, including an accrued but unpaid Success Fee and a Success Fee on Attributed Revenue received before the Subscription Period began.
• Introduction shortfall credit. If TCM delivers fewer than [six (6)] Qualified Introductions to a Manufacturer during a Subscription Period, TCM will, at the Manufacturer’s written election within thirty (30) days after the period ends, credit the difference on a pro rata basis against the next Subscription Period, or refund it where the Manufacturer does not renew. An Introduction the Manufacturer declines counts toward the total. An Introduction the Manufacturer fails to respond to within [ten (10)] business days does not.
• Fair use. An Access Subscription is for sourcing actual projects. It does not entitle a Manufacturer to accept Introductions indiscriminately, and Section 10.4(3) continues to apply. TCM may limit the number of open Introductions on an account where acceptance patterns indicate enumeration rather than genuine sourcing.
• If the subscription lapses. If an Access Subscription is not renewed, or ends for nonpayment, the Commission Election applies again from the date of lapse, prospectively. Attributed Revenue received during a paid Subscription Period is never retroactively commissionable. Attributed Revenue received after the lapse, from a Brand still within its Revenue Term, is subject to the Success Fee under Section 8.3 from the date of lapse.
• Taxes. The fee is exclusive of taxes. Where the fee is subject to sales, use or similar tax in the Manufacturer’s jurisdiction, the Manufacturer is responsible for it.

8.5 Fee base and exclusions

Unless the Manufacturer Commercial Terms say otherwise, Attributed Revenue is the net invoiced value of goods and services actually paid by the Brand, excluding:

• sales, use, VAT and other transaction taxes;
• freight, duty and insurance separately stated;
• tooling and mould charges billed at documented cost, where separately stated;
• componentry, packaging and other third party materials billed at documented cost with no markup, where separately stated;
• documented returns, credits, allowances and chargebacks; and
• amounts the Brand never pays after commercially reasonable collection efforts. Where a fee has already been paid on an amount later written off, the Manufacturer receives a credit against future fees.

Formulation and development charges, stability, compatibility, challenge and safety testing charges, sample and pilot batch charges, rush and expedite charges, and any markup on pass through materials are included in Attributed Revenue.

Attributed Revenue accrues on each payment received, including deposits and progress payments, pro rata as received.

8.6 The Billing Election

A Manufacturer makes its Billing Election in the Platform when it claims its Profile or otherwise signs up, and the election is recorded in its Manufacturer Commercial Terms.

• Default. A Manufacturer that makes no election is on the Commission Election.
• Changing the election. A Manufacturer may move from the Commission Election to an Access Subscription at any time, effective on the first day of the next calendar month following payment. A Manufacturer may move from an Access Subscription to the Commission Election effective at the end of a Subscription Period, on the nonrenewal notice in Section 8.4(3). A change is never retroactive.
• What a change does not do. Changing the Billing Election does not alter the Attribution Term or the Revenue Term of any Brand already accepted, does not reopen a waived prior relationship carve out, and does not extinguish an accrued Success Fee.
• Rate protection. TCM will not change a Manufacturer’s Success Fee rate, Attribution Term or Revenue Term for existing relationships without the Manufacturer’s written agreement. A change to the published schedule applies only to Introductions made after the change. The Access Subscription price may change at renewal only, on the notice in Section 8.4(3).

8.7 Reporting and payment

Within [30] days after the end of each calendar [quarter] in which it received payment from a Brand covered by this Section, a Manufacturer on the Commission Election will report to TCM, through the Platform or in a format TCM accepts, the Brand, the purchase orders accepted and the amounts received in that period.

A Manufacturer will also notify TCM within [ten (10)] business days of accepting an Initial Purchase Order from any Brand with which it reached a Qualified Introduction.

Where a Manufacturer does not deliver a report when due for a Brand with a Qualified Introduction, TCM may invoice a good faith estimate based on the volumes and values in the Brief and on comparable transactions. That invoice is due and payable unless the Manufacturer delivers actual figures within fifteen (15) business days of the invoice date, in which case the invoice is adjusted to the actual figures.

TCM may ask a Brand whether a transaction occurred with a Manufacturer it was introduced to, and may rely in good faith on the Brand’s answer for the purpose of this Section. A Brand is under no obligation to answer.

Invoices are due net [30] from the invoice date. Undisputed amounts not paid when due accrue interest at the lower of 1.5% per month or the maximum rate permitted by law, plus reasonable costs of collection.

8.8 Verification

No more than once per twelve months, on [20] business days notice, TCM may have an independent accountant bound to confidentiality review a Manufacturer’s records solely to verify amounts reported under this Section, during normal business hours and without unreasonable disruption. The accountant reports only the amount of any discrepancy, not the underlying records. TCM bears the cost, unless the review shows an underreporting of more than [5%] for the period, in which case the Manufacturer bears the reasonable cost of the review and pays the shortfall with interest.

This Section does not apply to a Subscription Period except as provided in Section 8.4(2).

8.9 Anti circumvention

A Manufacturer will not, and will not permit an affiliate to, structure a relationship with a Brand introduced through the Platform in order to avoid a fee, including by routing the work through an affiliate, a successor entity, a related facility, a broker, or a differently named Brand entity under common control. A transaction between the introduced Brand’s affiliates and the Manufacturer’s affiliates during the Revenue Term is a Covered Transaction.

Prior relationship carve out. No fee is owed where the Manufacturer can show, with contemporaneous written records produced within [fifteen (15)] business days of the Qualified Introduction, that it was already in a direct, active commercial relationship or documented quoting process with that Brand entity before the Introduction. Raise it early or waive it.

House accounts. A Manufacturer may maintain a list of excluded house accounts in the Platform. Where a Brand on that list requests an Introduction, the Platform will inform the Manufacturer before it accepts, and no fee is owed on that Brand. Maintaining the list is the Manufacturer’s responsibility and does not extend the [fifteen (15)] business day period for accounts not on it.

8.10 Change of control

A change of control of a Manufacturer, or a sale of all or substantially all of its assets or business, does not extinguish an accrued or accruing fee. The Manufacturer will not complete such a transaction unless the successor assumes its obligations under this Section in writing. An Access Subscription is not transferable to a successor without TCM’s written consent, which will not be unreasonably withheld.

8.11 If a deal goes bad

We are paid on introductions that turn into business. We are not paid on how that business turns out, and we do not insure it. A Manufacturer’s obligation to pay a fee on amounts it actually received is not reduced by a dispute with the Brand, and TCM has no obligation to a Brand or a Manufacturer arising from the other’s performance, nonperformance, quality, delay, insolvency or conduct.

8.12 Taxes

Fees are exclusive of taxes. You are responsible for taxes on amounts you owe us, other than taxes on our net income.

9. Our independence

9.1 We are not in your business

TCM does not formulate, manufacture, fill, pack, deformulate or reverse engineer products, and does not provide consulting, product development, regulatory, analytical or laboratory services to Users. We do not compete with Manufacturers for Brand work, or with Brands for products. Our business on the Platform is the match.

9.2 Affiliate brands

TCM’s parent, affiliates and principals may own or operate beauty and personal care brands of their own. Where such a brand uses the Platform, it is treated as any other Brand: it receives no preferential matching, ranking or placement, no access to another Brand’s Brief or to any Manufacturer’s confidential information beyond what that Manufacturer releases to it through a Qualified Introduction, and no access to scoring internals beyond what any Brand sees. It is bound by these Terms and the Mutual NDA on the same terms as any other User.

9.3 If this ever changes

If TCM ever offers additional paid services, they will be offered under separate terms that you affirmatively accept. They will be optional. Buying or declining them will not affect matching, ranking, Introduction eligibility or fees. TCM will not use Confidential Information received under the Mutual NDA to provide them.

10. Your content and our intellectual property

10.1 You keep your content

You keep all rights in your Submitted Data. You grant TCM a worldwide, nonexclusive, royalty free license to host, store, reproduce, adapt, process and transmit it solely to operate, secure, support and improve the Platform and to provide it to the counterparties you direct under Section 7. This license ends when the content is deleted, except for backups retained on our ordinary cycle, records of Qualified Introductions, and aggregated data created under Section 7.5.

You represent that you have the rights to submit what you submit and that it does not infringe or misappropriate anyone’s rights.

10.2 Feedback and outcome reporting

The Platform asks both sides for feedback after an Introduction, including at intervals following the handshake. Feedback you give about a counterparty must be your honest firsthand experience. We may use it to improve matching and, in aggregated or deidentified form, to describe Platform performance. We may use ideas and suggestions you give us about the Platform itself without restriction or compensation.

10.3 Our property

The Platform, including its software, interfaces, matching engines, question sets, scoring logic, structured datasets, Profile compilations, designs, text and marks, is owned by TCM or its licensors and protected by intellectual property law. The compiled directory and the structured corpus are our product, and our rights in the compilation are independent of the public status of any individual underlying fact.

We grant you a limited, revocable, nonexclusive, nontransferable license to access and use the Platform for your internal business purposes under these Terms. Nothing else is granted.

10.4 What you will not do

You will not, and will not permit anyone to:

• scrape, crawl, harvest, index or systematically extract Platform content, or use any bot, spider or automated means to access it, except a search engine crawler we expressly permit in robots.txt;
• copy, resell, sublicense, distribute or build a competing or derivative dataset, directory or matching service from Platform content;
• run Briefs, searches or queries for the purpose of enumerating the roster rather than sourcing an actual project;
• access the Platform through an account or role you are not entitled to, or misrepresent your role, company or affiliation;
• reverse engineer, decompile or attempt to derive the matching logic, scoring model or corpus, except where that restriction is unenforceable by law;
• probe, scan, load test, circumvent rate limits, or interfere with the security or integrity of the Platform;
• upload malware, unlawful content, or anything infringing or defamatory;
• use the Platform to send unsolicited commercial messages to other Users, or to recruit them off the Platform to avoid Section 8; or
• use the Platform in violation of any applicable law, including export, sanctions and anticorruption law.

Breach of this Section is material, may be remedied by immediate termination, and entitles us to injunctive relief without posting bond.

11. Third party services and links

The Platform may link to or interoperate with third party services and content. We do not control them, we do not endorse them, and we are not responsible for them. Your use of a third party service is governed by that party’s terms.

12. Term, termination and survival

• These Terms apply from your first use until terminated.
• You may stop using the Platform and close your account at any time, from your settings or by writing to us.
• We may suspend or terminate your access at any time for breach, risk, legal requirement, or on [thirty (30)] days notice for convenience.
• Termination does not extinguish a fee already accrued, or one that accrues on a Covered Transaction arising from a Qualified Introduction completed before termination, for the remainder of the applicable Revenue Term. Where an Access Subscription is in force at termination, no fee accrues on Attributed Revenue received before the end of the Subscription Period already paid for, and the Commission Election applies prospectively thereafter.
• Surviving sections: 2, 3, 4.2, 6.2, 7, 8 (as to accrued and accruing fees, the fee base, reporting, verification, anti circumvention and change of control), 10, 12.4, 12.5, 12.6, 13, 14, 15, 16 and 17, together with the Mutual NDA on its own terms.
• On request following termination we will delete or return your Submitted Data within [sixty (60)] days, except where retention is required by law, needed to administer accrued fees, or reflects a Qualified Introduction record or aggregated data under Section 7.5.

13. Disclaimers

THE PLATFORM AND ALL CONTENT, PROFILES, SHORTLISTS, SCORES, VERDICTS, FLAGS, MATCHES AND INTRODUCTIONS ARE PROVIDED “AS IS” AND “AS AVAILABLE”, WITH ALL FAULTS.

To the fullest extent permitted by law, TCM disclaims all warranties, express, implied and statutory, including merchantability, fitness for a particular purpose, title, noninfringement, accuracy, and any warranty arising from course of dealing or usage of trade.

Without limiting that, TCM does not warrant that: the Platform will be uninterrupted, secure or error free; any Profile, fact, score, flag or ranking is accurate, current or complete; any Shortlist contains the best, or any suitable, Manufacturer; any Manufacturer or Brand is solvent, licensed, compliant, capable, honest or able to perform; any Introduction will produce a response, a quote, an order, a product, or a product that is safe, compliant or fit for sale; or that any regulatory gate applied by the Platform reflects your product’s actual regulatory status.

You are solely responsible for your own due diligence, including facility audits, quality agreements, insurance verification, reference checks, sampling, stability and safety testing, regulatory classification and labeling, and all commercial terms you agree with a counterparty.

Some jurisdictions do not allow certain exclusions, so some of these may not apply to you.

14. Limitation of liability

To the fullest extent permitted by law:

• No indirect damages. Neither party is liable for indirect, incidental, special, consequential, exemplary or punitive damages, or for lost profits, lost revenue, lost business, lost goodwill, lost or corrupted data, cost of substitute services, product recall, or business interruption, however caused and on any theory of liability, even if advised of the possibility.
• Cap. TCM’s total aggregate liability arising out of or relating to these Terms or the Platform, for all claims combined, will not exceed the greater of (a) the total amounts you actually paid TCM in the twelve months immediately preceding the event giving rise to the claim, including amounts paid under an Access Subscription, or (b) one thousand United States dollars (US$1,000).
• Brands specifically. Because Brands pay nothing to use the Platform, TCM’s total liability to a Brand is capped at US$1,000, and you acknowledge this allocation of risk is a material basis of the bargain and the reason the Platform is free to Brands.
• Third party conduct. TCM has no liability whatsoever for the acts, omissions, products, services, statements, quality, delays, defects, recalls, regulatory violations, insolvency, misappropriation or breach of any Brand, Manufacturer, Consultant or other third party, including any counterparty introduced through the Platform.
• These limits apply regardless of whether a limited remedy fails of its essential purpose. Some jurisdictions do not allow certain limitations, so some may not apply to you.

15. Indemnification

15.1 You indemnify us

You will defend, indemnify and hold harmless TCM and its officers, members, employees, contractors and agents from any third party claim, demand, proceeding, loss, liability, damage, penalty, fine, and reasonable attorney fees and costs, arising out of or relating to:

• your Submitted Data, including its accuracy and your right to submit it;
• your breach of these Terms or of applicable law;
• your products, formulations, ingredients, labeling, claims, marketing, packaging or recalls;
• any dispute between you and another User, including any transaction, agreement, nonperformance, defect, injury, infringement or misappropriation arising from a relationship formed through an Introduction; and
• your breach of the Mutual NDA.

15.2 We indemnify you, narrowly

TCM will defend and indemnify you against a third party claim that the Platform itself, as provided by us and used in accordance with these Terms, infringes a United States patent, copyright or trademark, and will pay amounts finally awarded or agreed in settlement. This does not apply to claims arising from your content, your combination of the Platform with anything else, your use in breach of these Terms, or a Profile fact drawn from Public Data. This obligation is subject to the cap in Section 14.2.

15.3 Process

The indemnified party will give prompt notice, allow the indemnifying party to control the defense, and cooperate reasonably. No settlement that admits fault or imposes an obligation on the indemnified party may be made without its consent.

16. Governing law and dispute resolution

Please read this section carefully. It affects how disputes are resolved and waives the right to a jury trial and to participate in a class action.

16.1 Governing law

These Terms are governed by the laws of the State of Oregon, without regard to its conflict of laws rules. The United Nations Convention on Contracts for the International Sale of Goods does not apply.

16.2 Informal resolution first

Before filing anything, you agree to write to legal@thecosmeticmanufacturer.com describing the dispute and the relief sought. The parties will try in good faith to resolve it for 30 days. This period tolls any applicable limitations period.

16.3 Binding arbitration

Any dispute, claim or controversy arising out of or relating to these Terms or the Platform that is not resolved informally will be settled by final and binding arbitration administered by the American Arbitration Association under its Commercial Arbitration Rules, before one arbitrator, seated in Portland, Oregon, conducted in English. The arbitrator decides questions of arbitrability, except as stated in Section 16.5. Judgment on the award may be entered in any court of competent jurisdiction. Each party bears its own fees and costs unless the arbitrator awards otherwise under applicable law. The Federal Arbitration Act governs the interpretation and enforcement of this Section.

16.4 Carve outs

Either party may, without waiving arbitration: (a) bring an individual claim in small claims court where it qualifies; and (b) seek temporary or preliminary injunctive relief in a court of competent jurisdiction to protect intellectual property, confidential information, or to stop scraping or unauthorized access. The state and federal courts located in Multnomah County, Oregon have exclusive jurisdiction for those matters, and you consent to that venue and to personal jurisdiction there.

16.5 Class action waiver

All claims must be brought in an individual capacity, and not as a plaintiff or class member in any purported class, collective, consolidated, coordinated or representative proceeding. The arbitrator may not consolidate claims or preside over any representative proceeding. This waiver is not delegated to the arbitrator: if it is found unenforceable as to a claim, that claim proceeds in court in Multnomah County, Oregon, and the rest of this Section 16 remains in force for all other claims.

16.6 Jury trial waiver

To the extent any dispute proceeds in court, each party knowingly and voluntarily waives any right to a jury trial.

16.7 Time limit

Any claim must be brought within one year after it accrues, or it is permanently barred, except where a longer period is required by law.

17. General

• Changes to these Terms. We may update these Terms. We will change the date at the top, and where a change is material we will give notice by email or in the Platform at least [fifteen (15)] days before it takes effect. Continued use after the effective date is acceptance. A change to Manufacturer Commercial Terms never applies retroactively to an Introduction already made.
• Order of precedence. If there is a conflict between documents, the order of precedence is:
  • a signed written agreement between you and TCM that expressly supersedes these Terms;
  • a nondisclosure agreement signed between you and another User, as between the two of you only and as to confidentiality only;
  • the Mutual NDA, as to confidentiality;
  • the Manufacturer Commercial Terms accepted for an account, as to fees, rate, Billing Election, Attribution Term and Revenue Term;
  • these Terms;
  • any other Platform documentation.
• Entire agreement. These Terms, the Mutual NDA, the Manufacturer Commercial Terms where applicable, and anything expressly incorporated are the entire agreement on this subject and supersede prior understandings.
• Assignment. You may not assign these Terms without our written consent, except to a successor to all or substantially all of your business that is not a competitor of TCM, on notice to us. A change of control of a Manufacturer does not extinguish accrued or accruing fees. We may assign freely.
• Severability. If a provision is unenforceable, it is modified to the minimum extent necessary, or severed, and the rest stays in force.
• No waiver. Failure to enforce is not a waiver.
• Force majeure. Neither party is liable for a delay or failure caused by events beyond its reasonable control, excluding payment obligations.
• Notices. To TCM: legal@thecosmeticmanufacturer.com, with a copy to [STREET ADDRESS], Portland, Oregon. To you: the email on your account, or in the Platform. You are responsible for keeping your email address current. Notice is effective on the next business day after sending. A notice of breach, termination or dispute must also be sent by a method producing written confirmation of delivery.
• Independent contractors. Nothing creates an agency, partnership, joint venture, franchise or employment relationship.
• Third party beneficiaries. There are none, except the indemnified parties in Section 15.1 and the Users entitled to enforce the Mutual NDA directly against one another under its terms.
• Electronic signatures and records. You consent to transact electronically. A click, a confirmation, or an in Platform action is a signature and is admissible.
• Export and sanctions. You represent you are not located in, or acting for, a country or party subject to United States sanctions. We may screen Users against applicable sanctions and denied party lists and may decline or end an account on that basis.
• Headings and summaries. Headings are for convenience only. The plain language summary at the top of these Terms is accurate but simplified; where it and a numbered Section differ, the Section controls.