Emberly - Terms and Conditions

TERMS AND CONDITIONS

Last Updated 14 May 2023

1. Agreement to Terms 

1.1 These Terms and Conditions constitute a legally binding agreement made between you, whether personally or on behalf of an entity (you), and Emberly AS, located at Jåsundvegen 73, Tananger 4058, Norway (we, us), concerning your access to and use of the ember.ly (www.ember.ly) website as well as any related applications (the Site).

The Site provides a service for you to build mind maps, write notes, save links, upload files, and share your mind map. You agree that by accessing the Site and/or Services, you have read, understood, and agree to be bound by all of these Terms and Conditions.

If you do not agree with all of these Terms and Conditions, then you are prohibited from using the Site and Services, and you must discontinue use immediately. We recommend that you print a copy of these Terms and Conditions for future reference.

1.2 The supplemental policies set out in Section 1.7 below, as well as any supplemental terms and conditions or documents that may be posted on the Site from time to time, are expressly incorporated by reference.

1.3 We may make changes to these Terms and Conditions at any time. The updated version of these Terms and Conditions will be indicated by an updated “Revised” date, and the updated version will be effective as soon as it is accessible. You are responsible for reviewing these Terms and Conditions to stay informed of updates. Your continued use of the Site represents that you have accepted such changes.

1.4 We may update or change the Site from time to time to reflect changes to our products, our user's needs, and/or our business priorities.

1.5 Our site is directed for worldwide use. The information provided on the Site is not intended for distribution to or use by any person or entity in any jurisdiction or country where such distribution or use would be contrary to law or regulation or which would subject us to any registration requirement within such jurisdiction or country.

1.6 The Site is intended for users who are at least 18 years old. If you are under the age of 18, you are not permitted to register for the Site or use the Services without parental permission.

1.7 Additional policies which also apply to your use of the Site include:

•  Our Privacy Notice (ember.ly/privacy), which sets out the terms on which we process any personal data we collect from you, or that you provide to us. By using the Site, you consent to such processing, and you warrant that all data provided by you is accurate.

•  Our Cookie Policy (ember.ly/cookie), which sets out information about the cookies on the Site.

• Our Affiliate Terms & Conditions (ember.ly/affiliatepolicy), which sets out terms for participating in our affiliate program.

2. Acceptable Use 

2.1 You may not access or use the Site for any purpose other than that for which we make the site and our services available. The Site may not be used in connection with any commercial endeavors except those that are specifically endorsed or approved by us.

2.2 As a user of this Site, you agree not to:

• Systematically retrieve data or other content from the Site to a compiled database or directory without written permission from us

• Make any unauthorized use of the Site, including collecting usernames and/or email addresses of users to send unsolicited emails or creating user accounts under false pretenses

• Circumvent, disable, or otherwise interfere with security-related features of the Site, including features that prevent or restrict the use or copying of any content or enforce limitations on the use

• Make improper use of our support services, or submit false reports of abuse or misconduct

• Interfere with, disrupt, or create an undue burden on the Site or the networks and services connected to the Site

• Decipher, decompile, disassemble, or reverse engineer any of the software comprising or in any way making up a part of the Site

• Attempt to access any portions of the Site that you are restricted from accessing

• Harass, annoy, intimidate, or threaten any of our employees, agents, or other users

• Copy or adapt the Site’s software, including but not limited to HTML, JavaScript, or other code

• Upload or transmit (or attempt to upload or to transmit) viruses, Trojan horses, or other material that interferes with any party’s uninterrupted use and enjoyment of the Site or any material that acts as a passive or active information collection or transmission mechanism

• Disparage, tarnish, or otherwise harm, in our opinion, us and/or the Site

• Falsely imply a relationship with us or another company with whom you do not have a relationship

3. Information you provide to us

3.1 You represent and warrant that: (a) all registration information you submit will be true, accurate, current, and complete and relate to you and not a third party; (b) you will maintain the accuracy of such information and promptly update such information as necessary; (c) you will keep your password confidential and will be responsible for all use of your password and account; (d) you have the legal capacity, and you agree to comply with these Terms and Conditions; and (e) you are not a minor in the jurisdiction in which you reside, or if a minor, you have received parental permission to use the Site.

If you know or suspect that anyone other than you knows your user information (such as an identification code or user name) and/or password, you must promptly notify us at support@ember.ly.

3.2 If you provide any information that is untrue, inaccurate, not current, or incomplete, we may suspend or terminate your account. We may remove or change a user name you select if we determine that such a user name is inappropriate.

4. Content you provide to us

4.1 There may be opportunities for you to post content to the Site or create and store files, bookmarks, maps, and other content within our app (User Content). This User Content can be classified into three categories: Private User Content, Shared User Content, and Public User Content.

Private User Content is content that is accessible only to you and is not visible to other users on the Site.

Shared User Content is content that you choose to share with specific individuals.

Public User Content is content that you post publicly on the Site, which may be viewed by other users and may be used by us for training purposes and shared on publicly accessible galleries of shared mind maps.

4.2 We value your privacy and will handle your Private User Content and Shared User Content with care. However, you agree that we reserve the right to remove any User Content if, in our opinion, it does not comply with our Acceptable Use Policy, especially in regards to harmful and illegal content. We will attempt to notify you of the removal and the reason for it, but we are not obligated to do so. In serious breaches of the Acceptable Use Policy, we reserve the right to remove any User Content without notification.

4.3 By uploading any user-generated content, you confirm that it is in line with our Acceptable Use Policy. If it is not, you are responsible and liable for any losses or damage we incur as a result, including covering legal costs or financial losses. In short, you are accountable for any harm caused by your content.

4.4 We are not responsible and accept no liability for any User Content, including any content that contains incorrect information or is defamatory or loss of User Content. We accept no obligation to screen, edit, or monitor any User Content but reserve the right to remove, screen, and/or edit any User Content without notice and at any time. User Content has not been verified or approved by us.

4.5 If you wish to complain about User Content that you have access to, or if you believe that another user's User Content violates our Acceptable Use Policy, please contact us at legal@ember.ly.

4.6 While we strive to protect your privacy and the confidentiality of your Private User Content and Shared Private User Content, we may be required to disclose such content if required by law or if we have a good faith belief that such disclosure is necessary to comply with legal processes or to protect the rights, property, or safety of our company, our users, or the public.

4.7 By providing Public User Content, you understand and agree that it may be viewed by other users on the Site and that they may be able to see who has posted that Public User Content. You further agree that we may use your Public User Content to enhance the overall functionality and user experience of our platform without any obligation to compensate you. This includes combining your Public User Content with other content on the Site or using it in other ways. We will give credit for your Public User Content, such as maps, wherever applicable. However, we are not required to attribute any data derived from your Public User Content when it's used for improving our algorithms and models. Rest assured, our primary objective is to improve the platform for the benefit of all users rather than to profit from your content.

5. Our content 

5.1 Unless otherwise indicated, the Site and Services, including source code, databases, functionality, software, website designs, audio, video, text, photographs, and graphics on the Site (Our Content) are owned or licensed to us and are protected by copyright and trade mark laws.

5.2 Except as expressly provided in these Terms and Conditions, no part of the Site, Services, or Our Content may be copied, reproduced, aggregated, republished, uploaded, posted, publicly displayed, encoded, translated, transmitted, distributed, sold, licensed, or otherwise exploited for any commercial purpose whatsoever, without our express prior written permission.

5.3 Provided that you are eligible to use the Site, you are granted a limited license to access and use the Site and Our Content and to download or print a copy of any portion of the Content to which you have properly gained access solely for your personal, non-commercial use.

5.4 You shall not (a) try to gain unauthorized access to the Site or any networks, servers, or computer systems connected to the Site; and/or (b) make for any purpose, including error correction, any modifications, adaptions, additions or enhancements to the Site or Our Content, including the modification of the paper or digital copies you may have downloaded.

5.5 We shall (a) prepare the Site and Our Content with reasonable skill and care and (b) use industry-standard virus detection software to try to block the uploading of content to the Site that contains viruses.

5.6 The content on the Site is provided for general information only. It is not intended to amount to advice on which you should rely. You must obtain professional or specialist advice before taking, or refraining from taking, any action on the basis of the content on the Site.

5.7 Although we make reasonable efforts to update the information on our site, we make no representations, warranties, or guarantees, whether express or implied, that Our Content on the Site is accurate, complete, or up to date.

6. Site Management 

6.1 We reserve the right, at our sole discretion, to (1) monitor the Site for breaches of these Terms and Conditions; (2) take appropriate legal action against anyone in breach of applicable laws or these Terms and Conditions; (3) refuse, restrict access to or availability of, or disable (to the extent technologically feasible) any of your Contributions; (4) remove from the Site or otherwise disable all files and content that are excessive in size or are in any way a burden to our systems; and (5) otherwise manage the Site in a manner designed to protect our rights and property and to facilitate the proper functioning of the Site and Services.

6.2 We do not guarantee that the Site will be secure or free from bugs or viruses.

6.3 You are responsible for configuring your information technology, computer programs, and platform to access the Site, and you should use your own virus protection software.

7. Modifications to and availability of the Site 

7.1 We reserve the right to change, modify, or remove the contents of the Site at any time or for any reason at our sole discretion without notice. We also reserve the right to modify or discontinue all or part of the Services without notice at any time.

7.2 We cannot guarantee the Site and Services will be available at all times. We may experience hardware, software, or other problems or need to perform maintenance related to the Site, resulting in interruptions, delays, or errors. You agree that we have no liability whatsoever for any loss, damage, or inconvenience caused by your inability to access or use the Site or Services during any downtime or discontinuance of the Site or Services. We are not obliged to maintain and support the Site or Services or to supply any corrections, updates, or releases.

7.3 There may be information on the Site that contains typographical errors, inaccuracies, or omissions that may relate to the Services, including descriptions, pricing, availability, and various other information. We reserve the right to correct any errors, inaccuracies, or omissions and to change or update the information at any time without prior notice.

8. Disclaimer/Limitation of Liability 

8.1 The Site and Services are provided on an as-is and as-available basis. You agree that your use of the Site and/or Services will be at your sole risk except as expressly set out in these Terms and Conditions. All warranties, terms, conditions, and undertakings, express or implied (including by statute, custom or usage, a course of dealing, or common law) in connection with the Site and Services and your use thereof, including, without limitation, the implied warranties of satisfactory quality, fitness for a particular purpose and non-infringement are excluded to the fullest extent permitted by applicable law.

We make no warranties or representations about the accuracy or completeness of the Site’s content and are not liable for any (1) errors or omissions in content: (2) any unauthorized access to or use of our servers, and/or any and all personal information and/or financial information stored on our server; (3) any interruption or cessation of transmission to or from the site or services; and/or (4) any bugs, viruses, trojan horses, or the like which may be transmitted to or through the site by any third party. We will not be responsible for any delay or failure to comply with our obligations under these Terms and Conditions if such delay or failure is caused by an event beyond our reasonable control.

8.2 Our responsibility for loss or damage suffered by you:

Whether you are a consumer or a business user:

• We do not exclude or limit in any way our liability to you where it would be unlawful to do so. This includes liability for death or personal injury caused by our negligence or the negligence of our employees, agents or subcontractors and for fraud or fraudulent misrepresentation.

• If we fail to comply with these Terms and Conditions, we will be responsible for loss or damage you suffer that is a foreseeable result of our breach of these Terms and Conditions, but we would not be responsible for any loss or damage that was not foreseeable at the time you started using the Site/Services.

Notwithstanding anything to the contrary contained in the Disclaimer/Limitation of Liability section, our liability to you for any cause whatsoever and regardless of the form of the action will at all times be limited to a total aggregate amount equal to the greater of (a) the sum of 500 NOK or (b) the amount paid, if any, by you to us for the Services/Site during the twelve (12) month period prior to any cause of action arising.

If you are a consumer user:

• Please note that we only provide our Site for domestic and private use. You agree not to use our Site for any commercial or business purposes, and we have no liability to you for any loss of profit, loss of business, business interruption, or loss of business opportunity.

• If defective digital content that we have supplied damages a device or digital content belonging to you, and this is caused by our failure to use reasonable care and skill, we will either repair the damage or pay you compensation.

• You have legal rights in relation to goods that are faulty or not as described. Advice about your legal rights is available from your local Citizens' Advice Bureau or Trading Standards office. Nothing in these Terms and Conditions will affect these legal rights.

9. Term and Termination 

9.1 These Terms and Conditions shall remain in full force and effect while you use the Site or Services or are otherwise a user of the Site, as applicable. You may terminate your use or participation at any time, for any reason, by following the instructions for terminating user accounts in your account settings or by contacting us at support@ember.ly.

9.2 Without limiting any other provision of these Terms and Conditions, we reserve the right to, in our sole discretion and without notice or liability, deny access to and use of the Site and the Services (including blocking certain IP addresses) to any person for any reason including without limitation for breach of any representation, warranty or covenant contained in these Terms and Conditions or of any applicable law or regulation.

If we determine, in our sole discretion, that your use of the Site/Services is in breach of these Terms and Conditions or of any applicable law or regulation, we may terminate your use or participation in the Site and the Services or delete your profile and any content or information that you posted at any time, without warning, in our sole discretion.

9.3 If we terminate or suspend your account for any reason set out in this Section 9, you are prohibited from registering and creating a new account under your name, a fake or borrowed name, or the name of any third party, even if you may be acting on behalf of the third party. In addition to terminating or suspending your account, we reserve the right to take appropriate legal action, including, without limitation, pursuing civil, criminal, and injunctive redress.

10. Applicable Law and Jurisdiction

10.1 The laws of the Kingdom of Norway (without giving effect to its conflicts of law principles) govern all matters arising out of or relating to this agreement and the transactions it contemplates, including, without limitation, its interpretation, construction, validity, performance (including the details of performance), and enforcement.

10.2 A party bringing a legal action or proceeding against the other party arising out of or relating to this agreement or the transactions it contemplates must bring the legal action or proceedings in any court of the Kingdom of Norway. Each party to this agreement consents to the exclusive jurisdiction of the courts of the Kingdom of Norway and its appellate courts for the purpose of all legal actions and proceedings arising out of or relating to this agreement or the transactions it contemplates.

Should any provision of this agreement be invalid, that provision will be removed from the agreement without affecting the rest of the terms and conditions of use. All remaining provisions will continue to be valid and enforceable.

11. Subscription

11.1 If you decide to subscribe to a paid plan, you will be billed monthly (or yearly for yearly plans) at or around the same time of the month as you signed up. You can cancel at any time, and your subscription will continue until the end of your current billing period. In some circumstances (for example, non-payment, misuse of the service, or otherwise), we may cancel your subscription or disable your account.

11.2 If you choose to close an Emberly account, you are responsible for downloading or exporting your data before closing your account.

11.3 Our order process is conducted by our online reseller Paddle.com. Paddle.com is the Merchant of Record for all our orders. Paddle provides all customer service inquiries and handles returns

11. General 

(a) Visiting the Site, sending us emails, and completing online forms constitute electronic communications. You consent to receive electronic communications, and you agree that all agreements, notices, disclosures, and other communications we provide to you electronically, via email, and on the Site satisfy any legal requirement that such communication be in writing.

You hereby agree to the use of electronic signatures, contracts, orders, and other records and to the electronic delivery of notices, policies, and records of transactions initiated or completed by us or via the Site. You hereby waive any rights or requirements under any statutes, regulations, rules, ordinances, or other laws in any jurisdiction which require an original signature or delivery or retention of non-electronic records, or to payments or the granting of credits by other than electronic means.

12.2 These Terms and Conditions and any policies or operating rules posted by us on the Site or with respect to the Services constitute the entire agreement and understanding between you and us.

12.3 Our failure to exercise or enforce any right or provision of these Terms and Conditions shall not operate as a waiver of such right or provision.

12.4 We may assign any or all of our rights and obligations to others at any time.

12.5 We shall not be responsible or liable for any loss, damage, delay, or failure to act caused by any cause beyond our reasonable control.

12.6 If any provision or part of a provision of these Terms and Conditions is unlawful, void, or unenforceable, that provision or part of the provision is deemed severable from these Terms and Conditions and does not affect the validity and enforceability of any remaining provisions.

12.7 There is no joint venture, partnership, employment, or agency relationship created between you and us as a result of these Terms and Conditions or use of the Site or Services.

12.8 For consumers only  - Please note that these Terms and Conditions, their subject matter, and their formation are governed by Norwegian law. You and we both agree that the courts of Norway will have exclusive jurisdiction. If you have any complaint or wish to raise a dispute under these Terms and Conditions or otherwise in relation to the Site, please follow this link http://ec.europa.eu/odr 

12.9 A person who is not a party to these Terms and Conditions shall have no right under the Contracts (Rights of Third Parties) Act 1999 to enforce any term of these Terms and Conditions.

12.10 In order to resolve a complaint regarding the Services or to receive further information regarding the use of the Services, please contact us by email at legal@ember.ly or by post to:

Emberly AS

Jåsundvegen 73

Stavanger, Norway, 4058

Norway

Change log

May 14, 2023

• Updated the address to reflect our new location at Jåsundvegen 73, 4056 Tananger.

• Replaced the term "skill tree" with "mind map" for clarity throughout the document.

• Added a new section outlining terms and conditions for our affiliate program, which had not previously existed.

• Revised the wording in Chapter 4 to more explicitly emphasize our commitment to protecting user privacy.