These Terms of Service (“Terms”) govern access to and use of the emberry platform and related services.
By creating an account, commencing a trial, purchasing a subscription, or accessing or using the Services, you agree to be bound by these Terms.
1. Parties
The Services are provided by EMBERRY PTY LTD (ACN 700 020 202) (“emberry”, “we”, “us” or “our”).
These Terms form a legally binding agreement between emberry and the person or organisation that registers for, subscribes to or uses the Services (“Customer”, “you” or “your”).
If you accept these Terms on behalf of an organisation, you warrant that you have authority to bind that organisation.
2. The Services
emberry is a software-as-a-service platform that enables organisations to collect, analyse and manage customer, staff and stakeholder feedback.
The Services may include feedback collection tools, dashboards, analytics, reporting, workflow management, case management, regulatory mapping functionality, AI-assisted features and related services.
Features, functionality, usage limits and inclusions vary by subscription plan and may change from time to time.
Current pricing, plan inclusions and service information are published on the emberry website.
3. Eligibility and Accounts
You must be at least 18 years old and capable of entering into legally binding agreements.
You are responsible for:
(a) maintaining the confidentiality of account credentials;
(b) ensuring authorised users comply with these Terms;
(c) all activity occurring under your account; and
(d) promptly notifying us of any unauthorised access or suspected security incident.
You must provide accurate account information and keep it current.
4. Authorised Users
The Customer may permit employees, contractors and other personnel to access the Services.
The Customer remains responsible for all acts and omissions of authorised users as if they were the Customer’s own.
5. Free Trials
emberry may offer a free trial period.
Where payment details are collected during trial registration, the subscription will automatically convert to a paid subscription at the end of the trial period unless cancelled before the trial expires.
The applicable subscription fee will be charged at the commencement of the first paid billing period.
Customers may cancel at any time during the trial via account settings, the Stripe Customer Portal, or by contacting emberry before the trial ends.
emberry may modify, suspend or withdraw any trial offer at any time.
6. Subscription Fees and Billing
Subscription fees are payable in Australian dollars in advance for each billing period.
Fees, billing intervals and subscription inclusions are specified on the applicable pricing page or order form.
The Customer authorises emberry and its payment processor to charge all applicable fees using the nominated payment method.
GST will be applied where required by law.
7. Subscription Changes
Where subscription pricing is based on the number of active sites or locations:
(a) adding sites may result in immediate prorated charges;
(b) removing sites takes effect at the end of the current billing period;
(c) no credits are provided for unused time or reduced usage.
emberry may change pricing by providing at least 30 days’ prior notice.
If the Customer does not agree to revised pricing, the Customer may cancel before the change takes effect.
Continued use after the effective date constitutes acceptance.
8. Cancellation and Refunds
Customers may cancel at any time via account settings or by contacting emberry.
Cancellation takes effect at the end of the current billing period.
Except where required by law, fees are non-refundable and no pro-rata refunds are provided.
Nothing in these Terms excludes rights under the Australian Consumer Law.
9. Non-Payment
emberry may suspend or restrict access where fees remain unpaid.
Suspension does not relieve the Customer from liability for outstanding fees.
10. Customer Content
Customer Content includes all survey configurations, branding, logos, questions, text, settings, data and materials submitted to the Services.
The Customer retains ownership of Customer Content.
The Customer grants emberry a worldwide, non-exclusive, royalty-free licence to host, store, process, transmit, analyse and use Customer Content solely to:
(a) provide the Services;
(b) maintain and improve the Services;
(c) ensure security and operational integrity;
(d) comply with legal obligations; and
(e) generate aggregated and de-identified analytics.
The Customer warrants it has all necessary rights and permissions to submit Customer Content and to collect feedback through the Services.
11. Respondent Submissions
Respondent feedback, ratings, comments and survey responses are processed to provide the Services.
Respondents are responsible for the content they submit.
emberry may redact, suppress or remove content where reasonably necessary for legal, privacy, security or operational purposes.
12. AI Features
The Services may include artificial intelligence or machine-learning functionality.
AI-generated outputs are assistive only and may contain inaccuracies or errors.
The Customer is responsible for reviewing and validating any AI-generated output before use.
To the extent permitted by law, AI-generated outputs created for a Customer form part of that Customer’s Customer Content. emberry does not claim ownership of such outputs.
13. Privacy and Data Processing
emberry handles personal information in accordance with its Privacy Policy.
The Customer determines the purposes for which Customer Content is collected and remains responsible for providing all required notices, consents and lawful bases under applicable law.
Where sensitive information is collected through the Services, the Customer is responsible for ensuring compliance with any additional consent or legal requirements that apply to the collection, use and disclosure of such information.
emberry processes Customer Content on behalf of the Customer for the purpose of providing the Services.
14. Data Residency
emberry stores and processes Customer Content in Australia using Australian-hosted infrastructure.
Certain third-party providers, including payment processors and service integrations, may process information outside Australia where necessary to provide their services.
15. Third-Party Providers and Subprocessors
emberry may engage subcontractors, subprocessors and service providers to deliver the Services.
These may include cloud infrastructure providers, payment processors, analytics providers, communication providers, identity providers and AI service providers.
Use of third-party services may be subject to separate terms imposed by those providers.
16. Data Breaches
Where emberry becomes aware of a data breach affecting Customer Content and reasonably determines that notification is required by law or that the breach may materially affect the Customer, emberry will notify the Customer within a reasonable time after becoming aware of the incident.
17. Acceptable Use
The Customer must not:
(a) use the Services unlawfully;
(b) infringe intellectual property rights;
(c) interfere with system security or operation;
(d) attempt unauthorised access;
(e) upload malicious code;
(f) harass or discriminate against others;
(g) reverse engineer or extract data except as permitted by law; or
(h) use the Services in a manner that impairs the Services.
18. Intellectual Property
All intellectual property rights in the Services remain owned by emberry or its licensors.
The Customer receives a limited, non-exclusive, non-transferable right to access and use the Services during the subscription term for internal business purposes.
19. Aggregated and De-Identified Data
emberry may create and use aggregated, statistical and de-identified data derived from use of the Services.
Such data will not identify the Customer or any individual.
emberry will not intentionally attempt to re-identify individuals from de-identified datasets.
20. Security
emberry implements reasonable and industry-standard security measures to protect Customer Content.
No system can be guaranteed to be fully secure.
21. Availability and Changes
emberry does not guarantee uninterrupted operation.
We may modify, suspend or discontinue features at any time.
22. Regulatory and Compliance Functionality
Any regulatory, accreditation or compliance-related functionality is provided as an administrative tool only.
emberry does not provide legal, compliance, audit or professional advice.
Customers remain solely responsible for meeting their regulatory obligations.
23. Warranties
All implied warranties are excluded to the maximum extent permitted by law.
Nothing in these Terms excludes non-excludable rights under the Australian Consumer Law.
Where permitted by law, emberry’s liability for breach of a guarantee that cannot be excluded under the Australian Consumer Law is limited, at emberry’s option, to resupplying the Services or paying the cost of having the Services supplied again.
24. Limitation of Liability
To the maximum extent permitted by law:
(a) emberry is not liable for indirect, consequential, incidental, special or punitive loss;
(b) emberry is not liable for loss of profit, revenue, goodwill, business opportunity, anticipated savings or data;
(c) emberry is not liable for decisions made by the Customer based on Customer Content, respondent feedback, analytics, reports or AI-generated outputs.
To the maximum extent permitted by law, emberry’s total aggregate liability arising out of or relating to these Terms or the Services is limited to the total fees paid by the Customer to emberry in the twelve (12) months preceding the event giving rise to the claim.
Nothing in this clause limits or excludes any liability that cannot lawfully be limited or excluded, including liability under the Australian Consumer Law as preserved in clause 23.
25. Indemnity
The Customer indemnifies emberry against losses arising from:
(a) Customer Content;
(b) breach of these Terms; or
(c) misuse of the Services.
26. Force Majeure
Neither party is liable for failure caused by events beyond reasonable control.
27. Termination
Either party may terminate where the other materially breaches these Terms and fails to remedy within 14 days.
On termination:
(a) access ceases;
(b) outstanding fees remain payable; and
(c) Customer Content may be exported for 30 days, after which it may be deleted or de-identified.
28. Dispute Resolution
Before commencing court proceedings, the parties must attempt in good faith to resolve disputes within 30 days (except urgent relief).
29. Survival
Clauses relating to fees, IP, liability, indemnity, data use, and other provisions intended to survive will survive termination.
30. Governing Law
These Terms are governed by the laws of Western Australia.
31. Changes to Terms
Material changes will be provided with at least 30 days’ notice.
Customers may cancel before changes take effect.
Continued use constitutes acceptance.
32. Contact
EMBERRY PTY LTD
ACN 700 020 202
Website: emberry.com.au