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This SMS and Mobile Messaging Policy governs all Transactional and Marketing Messages sent by or on behalf of Kayana to Users and their customers, across the United Kingdom, the United States, the European Union/Ireland, Australia, and Canada. It must be read together with the User's existing Kayana Terms and Conditions (the "Main Agreement"), which continue to apply in full save as expressly modified below.
1. Introduction and Relationship to the Main Terms
1.1. This SMS and Mobile Messaging Policy (this "Policy") governs all SMS, MMS, and other mobile text messages ("Messages") sent by or on behalf of Kayana to a User or to a User's customers, across the United Kingdom, the United States, the European Union/Ireland, Australia, and Canada.
1.2. This Policy supplements, and forms part of, the User's existing Kayana Terms and Conditions (the "Main Agreement"), and in particular Section 17 (SMS/MMS Mobile Message Marketing Program) and Section 4 (Data Protection and Security) of the Main Agreement. Except as expressly modified below, all defined terms, obligations, limitations of liability, data protection provisions, and governing law and jurisdiction provisions of the Main Agreement apply equally to this Policy.
1.3. In the event of any conflict between this Policy and the Main Agreement, this Policy shall prevail solely in relation to Messages; the Main Agreement shall otherwise continue to apply in full.
1.4. The identity of the Kayana contracting entity, the applicable mobile marketing law, and certain other region-specific details depend on the User's region and are set out in Schedule 1 to this Policy.
2. Definitions
2.1. "Transactional Message" means a Message sent to confirm, support, or service a specific transaction or account relationship already in place between the User (or Kayana) and the recipient, including, without limitation, order confirmations, delivery or collection updates, booking and reservation reminders, one-time passcodes and account security alerts, payment and invoice notifications, and Payment Links sent under the Kayana Pay by Link Supplemental Terms.
2.2. "Marketing Message" means any Message that promotes, markets, or advertises goods, services, offers, loyalty schemes, or events, including any Message sent under the Company's Mobile Messaging Marketing Program ("MMM") referred to in Section 17 of the Main Agreement.
2.3. "Recipient" means the individual or business who receives a Message, whether an End User's customer (in the case of Messages sent using the User's own Kayana account) or the User itself (in the case of Messages sent by Kayana to the User).
2.4. "Opt-In" means the Recipient's affirmative consent to receive Marketing Messages, obtained in accordance with Section 4 of this Policy.
2.5. "Opt-Out" means a Recipient's request to stop receiving Marketing Messages, made in accordance with Section 5 of this Policy.
2.6. "Mobile Marketing Law" means the mobile and electronic marketing legislation applicable to the User's region, as identified in Schedule 1.
2.7. Save as otherwise defined in this Policy, capitalised terms have the meanings given to them in the Main Agreement.
3. Transactional Messages
3.1. Kayana and the User may send Transactional Messages to a Recipient without obtaining a separate Marketing Opt-In, on the basis of the existing transaction, booking, order, or account relationship between the User (or Kayana) and the Recipient.
3.2. A Transactional Message must not contain marketing or promotional content beyond what is reasonably necessary to service the underlying transaction (for example, a delivery update may include a tracking link, but must not include an unrelated promotional offer). Where a Message combines transactional and promotional content, it will be treated as a Marketing Message for the purposes of this Policy.
3.3. The User remains solely responsible for the accuracy and content of any Transactional Message it sends using the Kayana platform, and for ensuring such Messages are sent only to Recipients with whom it has a genuine transaction or account relationship.
4. Marketing Messages — Consent and Opt-In
4.1. Marketing Messages may only be sent to a Recipient who has provided a valid Opt-In, obtained in a manner consistent with the Mobile Marketing Law applicable to the Recipient's region, whether via an online, offline, point-of-sale, or in-application enrolment form.
4.2. By participating in the MMM, the Recipient agrees to receive Marketing Messages at the phone number associated with their Opt-In, and acknowledges that consent to receive Marketing Messages is not, and must not be made, a condition of any purchase from the User or from Kayana.
4.3. The User is responsible for obtaining and retaining evidence of a valid Opt-In for each Recipient to whom it sends, or asks Kayana to send, a Marketing Message, and for providing such evidence to Kayana or to a regulator on request.
4.4. Message and data rates may apply to any Message, as charged by the Recipient's own mobile carrier.
5. Opt-Out and Unsubscribe
5.1. A Recipient may Opt-Out of Marketing Messages at any time by replying "STOP", "END", "CANCEL", "UNSUBSCRIBE", or "QUIT" to any Marketing Message. The Recipient may receive one further Message confirming that their Opt-Out has been actioned.
5.2. The methods listed in Section 5.1 are the only methods that Kayana treats as a valid, actionable Opt-Out. Texting other words, or verbally asking a Kayana or User employee to be removed from a mailing list, is not a reasonable or reliable means of opting out and may not be actioned.
5.3. Kayana and the User will action a valid Opt-Out without unreasonable delay, and in any event within the timeframe required by the applicable Mobile Marketing Law. An Opt-Out from Marketing Messages does not, by itself, opt a Recipient out of Transactional Messages relating to a transaction they have already initiated.
5.4. If a Recipient intends to stop using, cancel, sell, or transfer the mobile number used to receive Messages, they must complete the Opt-Out process in Section 5.1 before doing so. The duty to notify and the indemnity in Section 17.4 of the Main Agreement apply to this Policy.
6. Message Frequency, Cost, and Support
6.1. The frequency of Marketing Messages will vary based on the Recipient's interaction with the User and with Kayana. Message and data rates may apply, as set by the Recipient's mobile carrier.
6.2. For support relating to Messages, a Recipient may text "HELP" to the number from which they received a Message, or contact the User's Kayana support address set out in Schedule 1.
6.3. If a Recipient's device does not support MMS, Kayana or its messaging provider may deliver the content as a plain SMS terminating message.
7. Prohibited Content
7.1. No Message may contain:
7.1.1. fraudulent, libellous, defamatory, scandalous, threatening, harassing, or stalking content;
7.1.2. profanity, obscenity, or content depicting or promoting violence, bigotry, hatred, or discrimination on the basis of race, sex, religion, nationality, disability, sexual orientation, or age;
7.1.3. malicious software, links to malicious software, or content designed to compromise a Recipient's device;
7.1.4. an offer for any product, service, or promotion that is unlawful in the place where the Message is received;
7.1.5. personal data about a Recipient that is protected by the Data Protection Law applicable to the User's region and disclosed without a lawful basis for doing so; or
7.1.6. any other content prohibited by the Mobile Marketing Law of the jurisdiction from which the Message is sent or in which it is received.
8. Age Restrictions
8.1. No person under the age of eighteen (18) may Opt-In to, or otherwise participate in, Marketing Messages.
8.2. The User is responsible for taking reasonable steps not to knowingly send, or request that Kayana send, a Marketing Message to a Recipient it knows or ought reasonably to know is under the age of eighteen (18).
9. Third-Party Carriers and Delivery
9.1. Messages are delivered using third-party messaging infrastructure, mobile network operators, and carriers not controlled by Kayana. Messaging is provided on an "as available" basis and may not be available in all areas at all times, and may cease to work in the event of changes made by a Recipient's carrier.
9.2. Neither Kayana, the User, nor any party assisting in the delivery of Messages, nor the Recipient's mobile network operator or carrier, is liable for any delayed, undelivered, or failed Message, consistent with Section 17.9 of the Main Agreement.
10. Data Protection and Retention of Mobile Numbers
10.1. Mobile numbers and any other personal data collected in connection with Messages are processed in accordance with Section 4 (Data Protection and Security) of the Main Agreement and the Data Protection Law applicable to the User's region, as set out in Schedule 1.
10.2. The User, as Data Controller in respect of its own customers' mobile numbers, is responsible for maintaining accurate Opt-In and Opt-Out records and for honouring any data subject request relating to those records. Kayana, as Data Processor, will support the User in doing so to the extent set out in Section 4.7 of the Main Agreement.
10.3. Kayana will retain Opt-Out records for as long as reasonably necessary to ensure a Recipient who has opted out is not sent further Marketing Messages, and in accordance with its data retention obligations under applicable law.
11. Regulatory Compliance by Region
11.1. Marketing Messages sent to Recipients in the United Kingdom or the European Union/Ireland are subject to the additional consent, transparency, and record-keeping requirements of the relevant Mobile Marketing Law set out in Schedule 1, including the requirement that consent be specific, informed, and freely given.
11.2. Marketing Messages sent to Recipients in Australia are subject to the Spam Act 2003 (Cth) and the Do Not Call Register Act 2006 (Cth), including the requirement that every Marketing Message identify the sender and include a functional Opt-Out mechanism.
11.3. Marketing Messages sent to Recipients in Canada are subject to Canada's Anti-Spam Legislation (CASL), including its specific consent, identification, and unsubscribe-mechanism requirements.
11.4. Marketing Messages sent to Recipients in the United States are subject to the Telephone Consumer Protection Act (TCPA) and the CAN-SPAM Act, including restrictions on the use of automatic telephone dialling systems and pre-recorded voice messages without prior express consent.
11.5. Nothing in this Section 11 limits the User's own, independent obligation to comply with the Mobile Marketing Law and any other applicable legislation in each jurisdiction in which its Recipients are located, which may extend beyond the jurisdiction of the User's own Contracting Entity.
12. Dispute Resolution
12.1. Any dispute, claim, or controversy relating to Messages sent under this Policy will be resolved in accordance with Section 17.13 of the Main Agreement (Dispute Resolution, Arbitration and Class Action Waiver), using the arbitration act, venue, and appointing body applicable to the User's Contracting Entity as set out in Schedule 1.
12.2. This Policy does not permit class or representative arbitration, to the extent permitted by applicable law, consistent with Section 17.13.10 of the Main Agreement.
13. Regional Application and General
13.1. Schedule 1 to this Policy identifies, for each region in which Kayana operates, the applicable Contracting Entity, Mobile Marketing Law, arbitration venue, and support contact. Nothing in Schedule 1 varies the substantive rights and obligations set out in Sections 1 to 12 above, which apply uniformly to Messages in every region.
13.2. This Policy may be amended by Kayana on the same basis as the Main Agreement (see Section 1.3 of the Main Agreement), including by giving the User at least 30 days' notice of any material change. Continued use of, or participation in, Messages after such changes take effect constitutes acceptance of the amended Policy.
13.3. Save as expressly set out in this Policy, all other provisions of the Main Agreement, including Section 24 (Limitation of Liability), Section 25 (Confidentiality), Section 31 (Notices), Section 35 (Survival), and Section 38 (Entire Agreement), apply to this Policy as if fully set out here.
Schedule 1 — Regional Provisions
This Schedule identifies the Contracting Entity and certain regional references applicable depending on the region in which the Recipient is located or the User has contracted with Kayana. It is provided for reference only and does not alter the substantive terms set out in Sections 1 to 13 above.
| Region | Contracting Entity | Mobile Marketing Law | Arbitration Venue / Act | Support Contact | Data Regulator |
|---|---|---|---|---|---|
| United Kingdom | Kayana World Limited | the Privacy and Electronic Communications Regulations 2003 (PECR) and the UK GDPR | London, England; the Arbitration Act 1996 | info@kayanaforbusiness.com | the Information Commissioner's Office (ICO) |
| United States | Kayana For Business USA Inc. | the Telephone Consumer Protection Act (TCPA) and CAN-SPAM Act | Sheridan, Wyoming; the Federal Arbitration Act (9 U.S.C. §§ 1-16) | info@kayanaforbusiness.com | the Federal Trade Commission (FTC) and applicable state Attorneys General |
| European Union / Ireland | Kayana For Business Ireland Limited | the ePrivacy Regulations (S.I. No. 336 of 2011) and the GDPR | Cork, Ireland; the Arbitration Act 2010 (Ireland) | info@kayanaforbusiness.com | the Data Protection Commission (DPC) |
| Australia | Kayana For Business Australia Pty Ltd | the Spam Act 2003 (Cth) and the Do Not Call Register Act 2006 (Cth) | Sydney, New South Wales; the Commercial Arbitration Act 2010 (NSW) | info@kayanaforbusiness.com | the Office of the Australian Information Commissioner (OAIC) |
| Canada | Kayana Canada Inc. | Canada's Anti-Spam Legislation (CASL) | Ajax, Ontario; the Arbitration Act, 1991 (Ontario) | info@kayanaforbusiness.com | the Office of the Privacy Commissioner of Canada (OPC) |
Complaints regarding Messages that cannot be resolved by Kayana or the User may be escalated to the relevant regulator listed above, or to the escalation bodies listed in Section 18.1.3 of the Main Agreement for the User's region.
V1.0 — SMS and Mobile Messaging Policy (UK / USA / EU-Ireland / Australia / Canada)