Effective September 4, 2023
Thank you for choosing to use the MorphCast® Emotion AI HTML5 SDK and/or the other products, services and features available within it (i.e. MorphCast Web Apps), provided by Cynny S.p.A., located at via delle Mantellate no. 8, 50129 Firenze (Italy) (“Cynny”), enrolled at the Business Registry of Florence, VAT number No. IT06340560488, D-U-N-S® number 434193325.
ACCEPTANCE: By accepting these TOU, you signify your full acceptance of all provisions of the same and all provisions contained in our Ethical Code and in our Guidelines and Policies for responsible use of emotion AI.
Guarantee: we provide the Service with reasonable care and skill but without any guarantee additional to those expressly mentioned in these TOU.
Disclaimer: the Service provided by Cynny is available for Business Users only. Therefore, you undertake to use the Service only in connection with your entrepreneurial, commercial, artisan or professional activity and, by accepting these TOU, you specifically acknowledge and declare that (i) you are acting in the exercise of your entrepreneurial, commercial, artisan or professional activity, or you are an intermediary thereof; and consequently (ii) any applicable provisions on consumers’ protection shall not apply to you and/or to your use of the Service.
Further, except as expressly indicated in these TOU or required by mandatory law, Cynny makes no specific promises regarding the Service, such as, by way of example, regarding the following: the specific features of the Service or the accuracy, reliability, availability of the Service, or its ability to respond to your needs.
You declare and warrant that the signatory of these TOU has the power to execute this document on behalf of You.
Use of the Service
You shall, in any case, not (a) modify, disassemble, decompile or reverse engineer any part of the Service; (b) copy or otherwise reproduce the Service, in whole or in part, or modify, adapt, alter, translate or incorporate into or with other software or create a derivative work of any part of the Service except as expressly permitted herein; (c) distribute the Service from servers not authorized by Cynny even through a proxy server; (d) remove, modify or otherwise tamper with notices (such as, by way of example, copyright notices) or legends on the Service or any labeling on any physical media or in cloud; (e) license or sublicense the Service; or (f) disclose the results of any performance benchmarks or similar testing of the Service to any third party without Cynnys’s prior written consent.
You can get your full feature license to access the Service by filling out this registration form available on our website.
Then you will receive a welcome email from Cynny containing your license key (our system generates a unique license key for each Business User), and all the instructions to get started to use our Service.
Price of the Service
The price of the Service is based on the Freemium model with several plans shown on the Emotion AI HTML5 SDK Pricing Policy and Emotion AI WEB APP Price Approach. The plans are dynamically shifting based on the number of minutes usage of AI face tracking per month (with a minimum of one minute whenever the video or camera stream analysis starts). Cynny regularly sends a monthly report containing detailed usage information by day and URL of the pages using the Service.
Where Cynny has indicated a price for the Service, this will be valid for the period that will be decided at Cynny’s discretion. Cynny reserves the right at any time to change the price of the Service to reflect, by way of example: any increase in cost suffered by Cynny due to any factor beyond Cynny’s control (including, without limitation, any exchange rate fluctuation, currency regulation, alteration of duties, significant increase in costs of labor, materials or other production costs), any change in quantities or specifications for the Service requested by the Business User, or any other reason at Cynny’s sole discretion.
Cynny will provide you with a monthly report that includes detailed information on the usage associated with your license key. This report will enable you to review the consumption of your license key. If you notice any discrepancies, please report them by emailing [email protected], and we will gladly assist in resolving the issue.
Together with this monthly report, you will also receive a proforma invoice. Only after the payment of this proforma invoice we will issue you the final invoice with the payment receipts.
Invoicing and Payment Terms
Subject to any special terms separately and expressly agreed in writing between the Business User and Cynny, Cynny shall invoice the Business User for the price of the Service on or at any time after the provision of the Service (as applicable).
The Business User shall pay the price of the Service (less any discount or credit allowed by Cynny, but without any other deduction, credit or set off) within 30 (Thirty) days of the date of Cynny’s proforma invoice or otherwise in accordance with such terms as may have been separately and expressly agreed in writing between the Business User and Cynny in respect of these TOU. Payment must be made on the due date. The payment term is an essential term of the TOU, its violation by the Business User legitimates Cynny to terminate the contract and interrupt the Service. Invoices with payment receipts will be issued only after payment.
All payments must be made to Cynny as indicated in the proforma invoice issued by Cynny.
Cynny is not obliged to accept orders from any Business User who has not supplied Cynny with references satisfactory to Cynny. If at any time Cynny is not satisfied as to the creditworthiness of the Business User it may give notice in writing by email to the Business User that no further credit will be allowed to the Business User; in such event, to the extent permitted by law, no further Service will be delivered or provided to the Business User except upon payment of all amounts owed by the Business User to Cynny.
Changes to the Service and to these TOU
Cynny is constantly modifying and improving the Service. We may also alter or discontinue the Service or any part of it in order to improve performance or security, change functions and functionality, or make changes to ensure compliance with the law, or prevent illegal activity or unlawful conduct on our system. We will constantly strive to take into account and offset the impact of such changes on your use of the Service. When reasonably possible, we will notify you of the discontinuation of the Service or material changes to the same that will have a negative impact on your use. However, there will be occasions when we will need to make such changes without notice, such as where we need to take action to improve the security and operability of the Service, prevent illegal behavior or meet legal requirements.
Changes to the Service may also imply changes to these TOU, that may be in any case amended at Cynny’s sole discretion (even without any change to the Service). In such cases, Cynny will give notice of the changes to these TOU on its website and indicate the effective date of the new version of the amended TOU. It is the Business User’s responsibility to periodically check for any updates and/or changes to these TOU. Your continued use of the Service following the posting of changes to these TOU will mean that you accept those changes.
The intellectual and/or industrial property of the Service and related to the Service is owned by, or licensed to, Cynny. The Service and all related intellectual and/or industrial property rights are protected by Italian and European laws, as well as by treaties, international conventions and the laws of other countries where applicable. Except for public domain information or when use has been expressly authorized in writing by Cynny, you may not use, reproduce, copy, modify, publish, transmit, distribute, perform, display, download, license, enter into a database, create derivative works, reverse engineer, transfer or sell Cynny’s intellectual and/or industrial property rights.
Cynny respects the intellectual property of others and expects you to do the same.
Your use of the Service does not transfer any intellectual and/or industrial property rights to you; any intellectual and/or industrial property rights of Cynny or of third parties, and all right, title and interest in and to the same shall remain solely with Cynny.
By accepting these TOU you agree and you shall procure that any of your customer – who, whether directly or indirectly, use the Services (hereinafter the “Customer”) – agree that Cynny and/or its affiliates shall have the right to use and publish (i) your name, trademark, trade name or logo and/or any name, trademark, trade name or logo of any of your Customer as well as (ii) any web page content or part of it, freely published by you and/ or by any of your customer by using the Services (hereinafter the “Output”), in connection with the sale of the Services or for any advertisement, marketing or endorsement purposes (including but not limited to the right to use and publish any “Output” , that is publicly available, as use case in any and all news releases, advertising, promotion, sales literature, or other publicity, released by Cynny and/or and its affiliates) at any time.
Service Suspension and Termination
We may suspend or terminate your access to the Service for any reason (including, without limitation, our receipt of notice alleging that you have engaged in infringing behavior, if we suspect that your use of the Service infringes the intellectual and/or industrial property rights of Cynny or third parties or of any applicable law, or if you violate this Cynny’s code of ethics or this responsible guidelines for the ethical use of Emotion AI) or for no reason at all, at any time and without notice. In case of your infringement of these TOU, Cynny may, at its sole discretion, take any action it deems to be appropriate pursuant to the applicable law, without prejudice to your indemnification obligations as set forth below. To the maximum extent permitted by the applicable law, Cynny is not in any case liable to you or to any third party for any suspension, interruption or termination of Service.
Disclaimer of Warranties
Your use of the Service is entirely at your own risk. We make no representations or warranties about the Service. The Service is provided “as is”, “with all faults”, and “as available”. Without limiting the generality of the foregoing, save for the case of Cynny’s willful misconduct and gross negligence, we disclaim all warranties, express, statutory or implied, including but not limited to (i) warranties of merchantability and fitness for a particular purpose; (ii) warranties arising through course of dealing or usage in trade; and (iii) warranties relating to the accuracy, reliability, correctness, or completeness of data or content made available on the Service or otherwise by Cynny. Further, there is no warranty that the Service will meet your needs or requirements or the needs or requirements of any other person. No oral or written information made available by or on behalf of Cynny shall create any warranty.
The above exclusions shall apply to you to the fullest extent permitted by applicable law.
Exclusive Remedy and Limitation of Liability
Under no circumstances will Cynny, its affiliates, or any party involved in creating, producing, or delivering the Service be liable for damages or losses including without limitation direct, incidental, consequential, indirect, special, or punitive damages and lost profits arising out of the terms or your access, use, misuse, or inability to use the Service, or in connection with any failure of performance, error, omission, interruption, defect, delay in operation or transmission, computer virus, or system failure, even if Cynny has been advised of the possibility of such damages. The same exclusion of liability shall apply, to the maximum extent permitted by applicable law, with reference to the processing by Cynny of any personal data provided by the Business User.
Nothing in this agreement is intended to exclude or limit any party’s liability for: death or personal injury; fraud; misleading or fraudulent representation; or any liability that cannot be excluded or limited by law.
You agree to be entirely and exclusively responsible for any adverse consequence deriving from (i) your use of the Service, (ii) your online conduct, (iii) your infringement of these TOU, (iv) your failure to comply with any applicable laws or regulations, (v) your negligence, willful misconduct, or infringement of the intellectual and/or industrial property rights or other rights of any person, or (vi) any of your dealings or transactions with other subjects resulting from use of the Service; and/or (vii) your infringement of privacy laws and regulations concerning the processing of personal data related to the Service.
Therefore, in such cases, without prejudice to Cynny’s rights and remedies under these TOU and the applicable law, you agree to indemnify, hold harmless, and defend Cynny, and its affiliates, officers, directors, contractors, agents, employees, successors and assignees from and against any and all demands, claims, damages, liabilities, judgments, fines, interest, penalties, losses, costs, expenses and harms, including without limitation reasonable attorneys’ fees and fees of other professional advisors, arising out of or in connection with your behaviors under points (i)-(vi) above.
In case Cynny receives a claim directly or indirectly caused by or related to your behaviors under points (i)-(vi) above, the following shall apply: (a) you shall not settle any such claim without the prior written consent of Cynny; (b) Cynny reserves the right to assume sole control of the defense activities for any such claim; (c) you agree to fully cooperate with Cynny in connection with Cynny’s defense of any such claim.
These obligations will survive termination of these TOU, regardless of the reason for such termination, together with the other provisions of these TOU that are suitable to survive termination of the same.
In the event any provision of these TOU is held unenforceable, it will not affect the validity or enforceability of the remaining provisions and will be replaced by an enforceable provision that comes closest to the intention of the parties underlying the unenforceable provision.
Our failure to enforce any provisions of these TOU or respond to a breach by you or other parties shall in no way waive our right to subsequently enforce any terms or conditions of the TOU, or to act with respect to similar breaches.
Governing Law and Time Period for Bringing Claims
- Location and Governing Law. These TOU and the related privacy documents are governed by, and must be construed in accordance with, the laws of Italy, as applicable, without giving effect to any principle of conflicts of law. To the extent applicable, by using the Service, you waive any claims that may arise under the laws of other states, countries, territories or jurisdictions. Any claim related to these TOU, the related privacy documents and/or the Service, shall be submitted to the exclusive jurisdiction of the courts of Florence (Italy). You agree that: (i) the Service shall be deemed solely based in Italy; and (ii) the Service shall be deemed a passive app that does not give rise to any jurisdiction outside of Italy.
- Notice of Dispute. In the event of a dispute, whoever (you or Cynny) receives a challenge, must give the other party a Notice of Dispute, which is a written statement that sets forth the name, address, and contact information of the party giving it, the facts giving rise to the dispute, and, if feasible, a proposed solution. You must send any Notice of Dispute by registered letter with a return receipt to Cynny S.p.A. at Via Delle Mantellate no. 8, 50129 Firenze (Italy). Cynny will send any Notice of Dispute to you by registered letter with a return receipt to your address, if available, or otherwise to your email address. You and Cynny will attempt to resolve any dispute through informal negotiation within sixty (60) days from the date the Notice of Dispute is received.
- Time Limit for Claims. Claims or disputes must be filed within six (6) months. To the maximum extent permitted by law, any claim or dispute under these TOU must be filed within one year, starting from when the claim or Notice of Dispute first could be filed. To the maximum extent permitted by law, if a claim or dispute isn’t filed within six (6) months, it is permanently barred.
Miscellaneous and Contact Information
No joint venture, partnership, employment, or agency relationship exists between Cynny and the Business User or as a result of these TOU or the use of the Service.
These TOU, and any rights and licenses granted hereunder, may not be transferred or assigned by you, but may be assigned by Cynny without restriction.
Please direct any questions, complaints or claims related to the Service or your use of the Service by email to [email protected] or by registered letter with return receipt at Cynny S.p.A., via Delle Mantellate no. 8, 50129 Firenze (Italy).