Terms & Conditions — Canada

This Customer Agreement (the "Agreement") sets out the terms and conditions (the "Terms") by which Kayana Canada Inc. (Corporation Number: 1001438570), a company with its registered office at 75 Bayly St W, Unit 15, Ajax, Ontario, L1S 7K7, Canada ("we", "our", "Kayana" or the "Company"), provides access to our Cloud Software and/or Hardware Services, which you ("you", "your", "the User" or "the Customer") purchase and/or subscribe to — each is a "Party" and collectively the "Parties" to this Agreement.

Please read these Terms and Conditions carefully before using the Software and/or Hardware provided by Kayana Canada Inc. These Terms apply to customers contracting with Kayana Canada Inc. in Canada.

1. Terms of Use

1.1. By using any company services, you agree to be bound by the Terms herein. If you disagree with these Terms, do not use the company services.

1.2. These terms and conditions apply to all users who receive access to Cloud Software and/or Hardware services provided by Kayana, regardless of whether they pay a subscription fee. Any terms, conditions, or representations (other than those made fraudulently or implied by statute) are excluded.

1.3. We reserve the right to amend, modify, or update the terms and conditions of this agreement at any time. Users will be notified of such changes via email or through our app at least 30 days in advance. Continued use of the Company's services after the changes take effect constitutes acceptance of the updated terms. If you are under a contract, the agreed-upon price will remain unchanged unless there is a case of misrepresentation or a force majeure event (see Section 24.5).

1.4. These Terms do not create an agency, partnership, joint venture, or employment, and the User has no authority to bind the Company in any respect whatsoever.

1.5. Subject to the terms herein, all rights conferred by these Terms are granted to the User in the business as long as our payment processor does not restrict it. A current list of accepted payment processors and partners is available on request from the Customer Support Team. No part of the Software may be used for any other purposes, including, but not limited to, research, study, competitor analysis or any other activity prohibited by this agreement.

1.6. By agreeing to the terms and conditions herein, the User warrants that they are entering into this Agreement for the purposes of a trade, business, craft or profession, and that they are not and will not be deemed a 'consumer' as defined in the Consumer Protection Act, 2002 (Ontario) and other applicable provincial consumer protection legislation. Nothing in this clause excludes or limits any right the User may have that cannot lawfully be excluded under the Consumer Protection Act, 2002 (Ontario) and other applicable provincial consumer protection legislation or the Sale of Goods Act (Ontario) and the Consumer Protection Act, 2002 (Ontario).

2. Definitions and Interpretations

2.1. Kayana Canada Inc. specialises in software development, distinguishing itself from website development consultancies. As a Software as a Service (SaaS) provider, we host applications on our servers, allowing customers to access these services over the Internet. This means that while the software resides on our servers, users can access it remotely.

2.2. Kayana Services shall refer to any Cloud Software services, including, but not limited to, Electronic Point of Sales (ePOS), web ordering, Self-Service apps, mobile apps ordering, website ordering as well as QR Code ordering, and/or any Hardware services provided to the User by the Company (each a "Service" and collectively the "Services").

2.3. "Consumer" or "End User" denotes the User's client who purchases services from the User through our platform.

2.4. "Business Day" is a day other than a Saturday, Sunday, or public holiday in Ontario when banks in Toronto are open for business. "Business Hours" refers to the hours between 9:00 a.m. and 5:00 p.m. on a Business Day (EST or EDT, as applicable).

2.5. "Platform" means the technology (hardware and software) provided by Kayana, a SaaS company, to facilitate ordering & payments. The products and services that we provide through our Platform, regardless of whether fees are charged, are also referred to as "Platform Services".

2.6. A "Platform Fee" means a fee paid by the End User to Kayana, under the Platform Fees Model (Section 11), in consideration for each individual transaction processed via the Kayana Platform, in addition to any order and delivery fees.

2.7. A "Platform Charge" means a fee paid by the User to Kayana, in consideration for each individual transaction processed using web ordering, mobile apps ordering and/or QR Code ordering services under the Platform Charges Model (Section 11). Platform Charges are not Platform Fees.

2.8. A "Licence Software Fee" refers to the minimum monthly or annual charge, if applicable, that the User pays Kayana for access to our Cloud Software.

2.9. "Payment Service Providers" or "PSP" facilitate connections between Users (who may also be referred to as "Merchants" in the context of payment processing) and their consumers, card brand networks, and financial institutions. This ensures a seamless transaction process. For further information on Payment Service Providers and payment processing, please refer to Sections 11 and 12.

2.10. Users who have integrated Kayana payments powered by the assigned PSP as their Payment Service Provider are referred to as "Sub Merchant Accounts". The User is required to agree to the terms and conditions of a payment processor Account Agreement to create a Sub Merchant Account. Kayana is not the merchant of record.

2.11. "Personal Data" refers to any information that relates to a natural person who can be identified, known as the "Data Subject". This includes any individual who can be distinguished, directly or indirectly, by unique identifiers like a name, an ID number, location details, an online identifier, or through characteristics specific to their physical, physiological, genetic, mental, economic, cultural, or social identity.

2.12. "Confidential Information" refers to specific information and materials designated as "confidential" or "proprietary," or that a reasonable person in business would consider confidential or proprietary. This includes, but is not limited to, information related to a disclosing party's or its Group's operations, products, business strategies, trade secrets, methodologies, potential products and services, processes, clientele, business associations, marketing strategies, strategic planning, innovative ideas, research and development data, cost structures, technologies, financial data, and pricing strategies. Obligations relating to Confidential Information are set out in Section 25.

2.13. "Virus" denotes any entity, including software, code, files, or programs, capable of hindering, damaging, or negatively impacting the functionality of computer software, hardware, or networks; telecommunications services, equipment, or networks; or any other service or device. It also encompasses actions that obstruct, deteriorate, or adversely influence access to or use of any of the foregoing.

2.14. Section headings shall not affect the interpretation of these Terms.

2.15. Unless the context otherwise requires, words in the singular shall include the plural, and in the plural shall include the singular.

3. Account Information

3.1. You must be at least 18 years old to purchase and/or subscribe for a licence to access and use our Cloud Software and/or Hardware services. You agree to provide accurate, current and complete information during the subscription process and to update such information to keep it accurate, current and complete. Any significant updates to the User's personal account information, governed by the Personal Information Protection and Electronic Documents Act (PIPEDA) and applicable provincial privacy legislation, shall be requested in writing to Team Kayana with a valid reason for the requested changes. Kayana, in its sole discretion and as deemed necessary, reserves the right to request proof of any changes related to personal data.

3.2. We reserve the right to suspend or terminate your subscription and access to our Cloud Software Services should the information provided during the subscription process, or at any point thereafter, prove to be inaccurate, outdated, or incomplete.

3.3. Upon termination, the Company will permanently erase (or limit the processing of) the User's account and all related data. The Company bears no responsibility for any data associated with the User's account following its termination.

4. Data Protection and Security

4.1. The Company is committed to employing robust security measures to safeguard the User's personal data and ensure the highest level of confidentiality, protecting the User from unauthorised access to their account and the data stored on the Company Cloud Software. However, it is essential to note that no security system is infallible. While we strive to protect your account, account information, and data, we cannot provide a guarantee against the possibility of security breaches. Third-party "attackers" may still find ways to access the Services or their content illegally. By submitting information through the Services, the User acknowledges and accepts the inherent risks of such actions, including the potential for unauthorised access to the Services, their account information, and any other information provided to the Company or via the Software.

4.2. To clarify roles and responsibilities, the User will typically act as the "Data Controller" for any personal data provided to Kayana for the purpose of delivering our services. The Data Controller is responsible for setting the purposes and means of processing personal data, whereas the Data Processor handles the data on the Data Controller's behalf. In this arrangement, Kayana serves as the "Data Processor," managing the User's personal data within the framework of the Kayana services. The User's data management is subject to the Personal Information Protection and Electronic Documents Act (PIPEDA) and applicable provincial privacy legislation. Kayana will not be liable for any breaches of data protection legislation committed by the User.

4.3. As a Data Processor, Kayana is limited to handling data presently housed in the Cloud Software. Should data be permanently altered or erased from the Cloud Software or the User's account, Kayana bears no liability for the loss or retrieval of such data.

4.4. Data controllers bear the responsibility for implementing appropriate technical and organisational measures to ensure and prove that their data processing aligns with the Personal Information Protection and Electronic Documents Act (PIPEDA) and applicable provincial privacy legislation. They must adhere to principles of lawfulness, transparency, fairness, data minimisation, purpose limitation, and accuracy. Additionally, fulfilling data subject requests falls squarely on the shoulders of the Data Controller.

4.5. Kayana has no authority over the data protection notices, policies, and terms and conditions of the user. Therefore, the User will forfeit and keep Kayana and its affiliates indemnified against all losses, costs, and liabilities and all expenses incurred, including reasonable legal or other professional fees, arising out of or in connection with any claim regarding:

4.5.1. a breach of the Personal Information Protection and Electronic Documents Act (PIPEDA) and applicable provincial privacy legislation, or

4.5.2. any whatsoever liability emerging in respect of the cookies, or

4.5.3. the capture of Personal Data through the User's website(s), or

4.5.4. the agreement of data subjects for dispersing any Personal Data outside of Canada by Kayana.

4.5.5. Any liability under this subsection will not be subject to any limitation or exclusions of liability under the Agreement.

4.6. Kayana is committed to notifying the Data Controller without undue delay, and in any event within seventy-two (72) hours of becoming aware, should Kayana or any sub-processor detect a breach affecting personal data, in line with the Personal Information Protection and Electronic Documents Act (PIPEDA) and applicable provincial privacy legislation. At such time, Kayana will furnish the Customer with all necessary information to fulfil any obligations to notify the relevant data protection authority (the Office of the Privacy Commissioner of Canada (OPC)) or to inform the affected individuals in accordance with applicable Data Protection laws. Section 26 sets out the full Data Breach Notification procedure.

4.7. Kayana commits to assisting the User in managing any subject access requests received from end-customers promptly and within a reasonable timeframe, at the User's expense. Kayana will implement sufficient technical and organisational measures to enable the Users to fulfil their obligations to individuals seeking access to their personal data held by Kayana. However, the Company's support for subject access requests is confined to data currently stored by the User on the Cloud Software. It is essential to note that Kayana cannot recover any data that has been previously altered or deleted from the Cloud.

4.8. The User grants Kayana permission to appoint any of its subcontractors as subprocessors without the need for additional approval. Hence, these subcontractors are deemed authorised under this provision. At any point, the User has the right to request a comprehensive list of the current subprocessors.

4.9. The Company will not be responsible for any losses resulting from unauthorised access to a User's account. The User agrees to protect, compensate, and absolve the Company, including its officers, directors, shareholders, employees, distributors, agents, partners, licensors, information providers, and account providers, from any liabilities arising out of improper, unauthorised, or illegal use of their account.

4.10. A user's login credentials are strictly personal and must not be shared with others. Organisations are encouraged to create individual logins for each user as needed. It is the responsibility of each user to secure their account login details and passwords. Furthermore, each user must agree not to share their password with any third party and to accept full responsibility for any activities or actions that occur under their account, whether authorised or not.

4.11. The user is obliged to promptly inform the Company of any unauthorised access to their account or any other security breaches by contacting info@kayanaforbusiness.com.

4.12. Right to Erasure or Restriction of Processing: Users have the right to request the deletion of all their personal data from Kayana's user account records upon termination of this agreement if they choose to do so. Any erasure request must be submitted in writing to info@kayanaforbusiness.com. In instances where personal data is required for evidentiary purposes, Kayana will not delete the data; instead, it will limit its processing. Furthermore, as a Data Controller, users are obligated to honour any erasure requests from their customers concerning data held on the Cloud Software. It is important to note that Kayana, acting as a Data Processor, bears no responsibility for handling erasure requests that users receive from their customers.

4.13. In addition to the conditions outlined in this Agreement, particularly Section 4, it is essential for the User to familiarise themselves with the Company's Privacy Policy and Cookie Policy. These documents provide detailed insights into how Kayana collects and processes personal data. Utilising our services implies the User's automatic acceptance of the Company's Privacy Policy and Cookie Policy.

5. Kayana Hardware

5.1. The User may purchase hardware from Kayana with or without a valid Cloud Software licence subscription. Where the User purchases our hardware for use with a different software, Kayana cannot guarantee that the hardware shall be compatible with the User's software. The Company is not responsible for ensuring the User's software compatibility with our hardware.

5.2. It is the User's responsibility to research thoroughly whether any hardware purchased from Kayana shall meet their requirements and expectations. All hardware descriptions and some video demonstrations are provided for general guidance.

5.3. Kayana hardware is supplied with a standard two-year manufacturer's warranty, subject to Section 16 (Hardware Warranty Returns Process).

5.4. Hardware provided by Kayana remains the property of the User once paid for in full, save for any hardware supplied under a lease, rental, or finance arrangement, in which case ownership is governed by the terms of that separate arrangement.

6. Cloud Software

6.1. The User can purchase our Cloud Software (the "Software") licence subscription with or without hardware provided by Kayana. Should the User decide not to buy hardware from Kayana, they agree they have access to hardware fully compatible with our Cloud Software. Where the User does not purchase our hardware, the Company shall not be held responsible if the software fails to work. The Company is not responsible for ensuring the User's hardware compatibility with our Cloud Software, nor do we provide any managed service or support.

6.2. To guarantee the optimal performance and functionality of our Cloud Software, it is imperative to have a fast, stable, and reliable internet connection. Kayana advises opting for a wired internet connection to enhance connectivity. However, please note that this recommendation does not guarantee the performance of your internet provider.

6.3. The Software is made available "as is" and "as available", without any warranties, whether explicit or implied, to the fullest extent permitted by applicable law. This includes, but is not limited to, the implied warranties of merchantability, suitability for a specific purpose, non-infringement, or performance. Utilising the Software is entirely at the User's own risk.

6.4. The Company commits to swiftly resolving any technical issues experienced with the software, provided these are reported to us without delay.

6.5. The Company, its subsidiaries, affiliates, and its licensors do not warrant that:

6.5.1. the Software will meet the User's specific requirements; or

6.5.2. the quality of the software, hardware, and any other material purchased or obtained by the User will meet all the User's expectations; or

6.5.3. the Software will always be accurate or reliable; or

6.5.4. the Software will be uninterrupted, timely, secure, or error-free; or

6.5.5. the Software is free of viruses or other harmful components; or

6.5.6. any/all errors in the Software will be corrected.

6.6. The software comes equipped with default settings covering taxation, promotions, and menu configuration, all of which can be tailored to meet the user's specific requirements. It is incumbent upon the user to ensure that all necessary settings are updated before utilising the software.

6.7. Should the User need to download additional software related to the Cloud Software, access to this software is conditional upon agreeing to the respective licence agreement. The use of any such software is subject to the terms outlined in that agreement.

6.8. Users must upload all menus, promotions, and pertinent data to the Cloud Software. Although the Company provides guidelines for uploading this information, it remains the User's responsibility to ensure completion. Should you need help and are subscribed to a managed plan, your team will offer the necessary support to get you started.

6.9. Data uploaded by the User to the Cloud Software remains stored for the life of the licence subscription. Users must download any data they wish to retain before terminating their subscription. Upon termination, all data is irrevocably deleted, with no means of retrieval.

6.10. Data eradicated from the Cloud Software at any point is irretrievable.

6.11. The Company commits to performing backups of all customer data at least once every 24 hours and will retain a copy of these backups. Nonetheless, we advise users to regularly back up their data from the Cloud Software for added security.

6.12. Kayana is designed to support certain software functionalities offline in case of an internet outage. During such interruptions, data is temporarily stored on the user's device. To ensure that this data is securely transferred to the Cloud Software, users must reconnect to the internet within 30 days of initiating offline mode. Failure to re-establish an internet connection within this timeframe may result in the loss of some or all data, and/or the system may cease to function.

6.13. To fully exploit the software's capabilities, users must ensure they have a fast, stable, and reliable internet connection. For optimal performance, we recommend an internet speed of at least 8 Mbps for downloads and 3 Mbps for uploads.

6.14. Should the User wish to add new functionalities to the Software, they must submit a written request to the Company for evaluation. The Company will review such requests within a reasonable timeframe to determine whether the proposed functionalities can be integrated with the Company's services. However, the Company cannot guarantee the feasibility of incorporating any new functionalities. Furthermore, any requests for design and/or functionality that could potentially infringe upon a competitor's copyright will be unequivocally declined.

6.15. Kayana operates a Cloud server provided by AWS. The locations of our servers may be revised due to financial considerations or potential risks to data security. The Company will periodically assess the suitability of these server locations. It is important to note that Kayana reserves the right to relocate its Cloud server facilities without user consent, ensuring operational flexibility and data protection remain paramount, provided that any such relocation continues to comply with the Personal Information Protection and Electronic Documents Act (PIPEDA) and applicable provincial privacy legislation.

6.16. Kayana targets Cloud server uptime of 99% measured on a calendar-month basis, excluding scheduled maintenance and events beyond Kayana's reasonable control. Should there be any planned maintenance of the servers, the Company shall endeavour to give the User at least 48 hours' notice of such scheduled maintenance. In the unlikely event of an unplanned disruption to the server functionality, the Company shall not be held liable by the User for any loss of profits, business, goodwill, use, data or other intangible and tangible losses resulting from such server failure, save that Section 28 (Service Levels and Availability) sets out the User's remedies where Kayana fails to meet this target on a recurring basis.

7. Software Subscription Fees

7.1. Kayana provides a range of pricing plans and subscription levels designed to cater to the specific needs of our Users. We recommend carefully examining all available licence subscription options, including their pricing and any associated restrictions, before making a purchase. Users should select a subscription tier that best matches their requirements. By using Kayana's Software, Users consent to the terms and restrictions of their chosen subscription level and this Agreement.

7.2. Any piece of Kayana hardware bought directly from our website automatically comes with a subscription to our Cloud Software under the "Kayana" licence.

7.2.1. Users who download the Software application from the Google Play Store on non-Kayana devices will automatically be enrolled in the "Kayana Freemium" subscription. We recommend that potential subscribers review all subscription tiers and pricing details on our website before downloading the app. Subscribers have the flexibility to upgrade their subscription level through the partner's platform in their online customer account, with the option to downgrade after the subscription period ends.

7.3. Alternatively, Users can request a quotation by speaking to one of our experts.

7.4. The User is required to pay the chosen monthly or annual subscription fee for the Software provided by Kayana on the same date of each calendar month or year. This arrangement remains in place unless cancellation occurs in accordance with the Cancellation Policy outlined in Section 19.

7.5. Depending on the User's current licence subscription tier and associated costs, the subscription will be automatically renewed on a monthly or annual basis through Direct Debit or a recurring credit/debit card payment. No alternative payment methods are offered.

7.6. Should a User's payment fail and no subsequent payment is made within seven days of the initial failure, the licence subscription will be terminated. Furthermore, any data linked to it will be permanently erased from the Cloud 30 days following the initial payment failure.

7.7. If you exhaust your Cloud data storage, you can either upgrade your license subscription or download your data to a secure device and delete it from the Cloud. Please be aware that once data is deleted from the Cloud, it cannot be recovered. Transaction data is stored in the Cloud for one year. After this period, it is archived but remains available on demand. Two years after the transaction date, this data will be removed unless you have paid for archive storage as outlined in your contract. If your contract does not specify otherwise, all data will be permanently removed after three years.

7.8. Users have the flexibility to upgrade or downgrade their subscription once they have completed their initial subscription.

7.8.1. Annual subscriptions may be upgraded or downgraded, provided a one-month notice is given before the renewal date.

7.8.2. Should you choose to downgrade your annual subscription, we will issue a refund for the difference in subscription costs within 28 days of receiving your downgrade request. The changes to your subscription features will take effect after the one-month notice period expires.

7.8.3. Should you choose to upgrade your annual subscription, the cost difference between subscription tiers can be settled instantly using a credit or debit card. The enhanced functionalities will be activated within 24 hours.

7.8.4. Kayana will aim to process changes to monthly subscriptions starting from the next billing date, provided we receive a minimum of three (3) working days' notice. Please note, refunds are not available when downgrading a monthly subscription.

7.8.5. The downgrade option is unavailable for users who are already subscribed to Kayana's most basic subscription tier.

7.8.6. Upon upgrading or downgrading, the monthly or annual payment will be modified, with the Direct Debit adjusted to reflect these changes starting from the forthcoming billing date. Should any alterations to the subscription occur within three working days of the next billing date, they will take effect from the subsequent billing cycle.

7.9. The Company reserves the right to adjust the charges for Software and/or Hardware usage. Following the initial agreed period, subscription fees may increase annually by up to 15%. However, no fee adjustments will occur during the subscription term unless prompted by an event of force majeure (Section 24.5).

7.9.1. The Company will strive to inform the User at least 30 days in advance of any increase in subscription fees.

7.9.2. Continued usage of the Software by the User will be considered as acceptance of the updated payment terms.

7.9.3. The User has the option to terminate their subscription if the raised subscription fees exceed their financial means. This right must be exercised in accordance with the procedure described in Section 19. Should the User decide to re-subscribe following cancellation, they will be provided with a new Quotation and Terms.

7.10. Prices are quoted and billed in Canadian Dollars ($) to the User's bank account. The User will bear any transaction fees for currencies other than CAD.

7.11. Users can access all invoices for monthly, annual payments, and individual purchases through their online customer accounts. Invoices are available for payouts, merchant fees, and any charges related to hardware and software.

7.12. Users also must be aware that should there be a situation of non-payment of hardware fees/software fees/subscription fees that is due and payable, the Company retains the right to deduct the amount due via a direct deduction from the funds available in the business account. This shall be done only after multiple attempts have been made to receive the funds via reminders on emails/sms/push app notifications/WhatsApp messages.

8. Web Ordering Services

8.1. Kayana offers a web ordering system that can be integrated either through an iframe, which includes a fixed URL, or a plugin, depending on the Content Management System (CMS) you utilise.

8.2. If the User has an existing website, they must integrate the iFrame into their business site, unless a Kayana plugin is available for use.

8.3. Should the User lack a website, Kayana offers a goodwill gesture of providing 'Prebuild' free website templates for business use. However, Kayana cannot guarantee a wide selection of templates nor that they will meet the User's specific needs and expectations for their website. Additionally, the Company is unable to make any customisations to these templates. It is important to note that the User is under no obligation to utilise our website templates.

8.4. If you have an existing website, domain, and/or hosting, you are responsible for implementing necessary updates to ensure the seamless integration and functionality of our web ordering system. This includes, but is not limited to, iFrame integration, modifying domain settings, updating records, and adjusting any necessary hosting settings. While Kayana will endeavour to guide you in identifying the required updates, please note that we are not obligated to provide advice or technical support for these updates, nor will we perform these updates on your behalf. It is your responsibility to ensure that all updates are completed thoroughly and successfully, enabling the proper operation of our web ordering system. In compliance with the Personal Information Protection and Electronic Documents Act (PIPEDA) and applicable provincial privacy legislation, Kayana cannot access your website, domain, and/or hosting control panels.

8.5. Should the User not possess a domain and hosting, Kayana is pleased to offer a complimentary domain, contingent upon the availability of the desired name, along with free hosting on our servers. It is the User's responsibility to provide essential information, including, but not limited to, a business description, contact details, terms and conditions, refund policy, and privacy policy, and to ensure that this information remains up to date.

8.6. Should the User choose to employ one of our pre-designed website templates hosted on our servers, Kayana will, upon request, grant the User direct access to the website hosting control panel. The User will be responsible for any required modifications to the website's content, design, images, and graphics.

8.7. Kayana's web ordering platform offers pre-designed templates, and we do not accommodate customisations.

8.8. Section 11 (Payments Powered by PSP) applies to users who have subscribed to our web-based ordering software services.

8.9. If you choose to leave Kayana, you can purchase your domain and website at a fee to be agreed.

9. Mobile Apps Ordering Services

9.1. Kayana offers mobile applications exclusively for the Google Play Store and Apple Store, designed specifically for mobile devices. These applications feature pre-built designs, and we do not offer customisation options.

9.2. Should the User choose to publish app(s) through their personal Google and Apple accounts, they are at liberty to proceed independently. In compliance with the Personal Information Protection and Electronic Documents Act (PIPEDA) and applicable provincial privacy legislation, Kayana is unable to access the control panels of the User's mobile applications.

9.3. Should the User not possess their own Google and/or Apple accounts, or prefer not to use them, they have the option to publish their app(s) on the Google Play Store and/or Apple Store through Kayana Canada Inc.'s business account. In choosing this option, the User must provide essential information, including, but not limited to, a business description, app description, terms and conditions, refund policy, and privacy policy. Moreover, it is the User's responsibility to ensure that this information is kept accurate, up-to-date, and comprehensive.

9.4. Kayana Canada Inc. holds no sway over the app approval process. The Google Play Store and Apple App Store exclusively govern app submissions at their discretion. They reserve the right to modify their policies without prior notification and may decline app submissions for any reason. In the event of a rejection, users are required to furnish the necessary information and evidence as stipulated by the Google Play Store and/or Apple App Store for resubmission of the app(s).

9.5. The Google Play Store and Apple App Store typically require up to seven business days to approve applications. However, these timelines are subject to change without notice, and Kayana Canada Inc. does not influence these approval durations.

9.6. The User is responsible for making any required changes to the content, design, images, and graphics of the mobile application(s).

9.7. Section 11 (Payments Powered by PSP) applies to users who have subscribed to our Mobile Apps Ordering software services.

10. QR Code Ordering Services

10.1. Kayana offers a QR Code ordering system that includes a fixed URL, which cannot be altered.

10.2. Our QR Code platform offers pre-designed templates, and we do not accommodate customisations.

10.3. The User must supply essential details, including terms and conditions, refund policy, and privacy policy, ensuring that this information remains accurate, up-to-date, and comprehensive. This is crucial for Kayana to create a QR Code for successful ordering purposes.

10.4. The User is responsible for making any required modifications to the QR Code's content, design, images, and graphics.

10.5. Kayana will supply a QR Code in either JPEG or PNG format, delivered via email. Users are responsible for printing their stationery and/or marketing materials to promote the QR Code ordering system. At no point will Kayana provide stationery or marketing materials for advertising the QR Code ordering system.

10.6. Section 11 (Payments Powered by PSP) applies to users subscribed to our QR Code Ordering software services.

11. Payments Powered by PSP as Assigned by Kayana

11.1. Kayana has teamed up with various providers to offer Payment Processing services. It's important to clarify that Kayana acts not as a Payment Service Provider, but as an integrator of Ryft/Stripe or any other payment processing solutions. It is important to note that Kayana assigns the PSP that is most suitable and catered to your business needs. To prevent any confusion, Kayana is not regulated by the Financial Transactions and Reports Analysis Centre of Canada (FINTRAC) as a payment service provider. This section is relevant only to users who have opted for this payment processing service.

11.2. To process payments through the App, users must undergo registration with the assigned PSP via the Kayana onboarding process. This may require the submission of various documents, such as identity verification, business registration papers, and proof of address. Should the PSP decline the user's application to process payments, regardless of whether the applicant is an individual or a business, the user will consequently be unable to utilise our App. It's important to note that Kayana does not influence any PSP's decision-making process in any way.

11.3. Kayana will levy a Merchant Fee (also referred to as the Platform Fee/Platform Charge under the Platform Fees Model and Platform Charges Model referred to in Sections 2.6 and 2.7) on the User for each payment processed through the Platform, calculated as a predetermined fixed percentage. The specifics of the Merchant Fee percentages and the frequency of fund settlements will be clearly outlined to the User during the sales/registration phase or within the Quotation process.

11.4. Kayana will offer the User a "Payment Dashboard" that features essential transaction details for simplified navigation and clear visibility of processed payments.

11.5. Every transaction will be directly credited to the User's PSP balance account, following the deduction of any Merchant and Platform Fees and as per the payout selected, deposited to your bank in due course.

11.6. Users have the option to refund a transaction(s) after the payment has been processed. However, even if a payment is refunded, users must still cover the total Merchant Fees associated with the refunded transactions. Under no circumstances are Merchant Fees refundable. A separate refund fee may also be charged.

11.7. Users may be subject to Anti-Money Laundering checks at any time, regardless of their chosen payment service provider. It is essential that users comply with all relevant Anti-Money Laundering laws and regulations, including those enforced by FINTRAC. Failure to comply will be considered a violation of this Agreement and may result in its immediate termination, as outlined in Section 36.4.6.

11.8. Payment Processing becomes operational only after the user inputs their login details (merchant key) into the POS terminal and/or Kayana control panels.

11.9. Kayana is not liable for any issues arising with the payment gateway, which include fraudulent transactions and bank chargebacks, among others. The Kayana Technical Support team provides primary technical support and assistance with login problems. If any unresolved issues arise, they will be escalated to the assigned PSP through the Kayana platform. For concerns directly related to payment processing, such as fraudulent transactions and bank chargebacks, customers are required to complete the chargeback requirements via the admin platform which will be submitted to the PSP directly.

12. Payment Disputes

12.1. A dispute (a chargeback, inquiry, or retrieval) occurs when a cardholder questions a payment with their card issuer. An investigation or retrieval is a request for more information about the charge, which may escalate to a chargeback. To avoid an enquiry or retrieval becoming a chargeback, submit any required evidence or fully refund the payment. Refunding the payment marks the enquiry or retrieval as resolved and does not incur a dispute fee.

12.2. The card issuer creates a formal dispute to process a chargeback, which immediately reverses the payment. The payment amount and a separate dispute fee are deducted from the Merchant's account balance. The dispute fee amount is subject to change at the PSP's discretion. Kayana is not responsible for communicating any changes to the dispute fee amount to the User.

12.3. The User has full responsibility and/or liability for all payment disputes. The User shall deal with payment disputes through their Payment Dashboard by providing the necessary evidence. In most cases, the PSP does not decide the outcome of the dispute. The PSP conveys your evidence to their financial partners. The PSP's financial partners then pass your evidence to the card issuers if they deem it sufficient. If you do not submit proof by the deadline, the cardholder wins the dispute and keeps the funds, and a charge of $35 will be levied.

12.4. The user shall cover all costs incurred during the dispute resolution process and keep the Company indemnified against any payment disputes and expenses incurred during the dispute settlement process. The User acknowledges and agrees that using any form of Payment Processing is at the User's own risk.

12.5. If Kayana's partnership with the assigned PSP is terminated, the User shall need to switch to another integrated provider to continue using Kayana Payments for online ordering, contactless table ordering, and/or self-checkout ordering, etc. The Company shall inform the User before any such termination in partnership and provide details of any new third-party payment service provider that will replace the existing PSP's functionalities. The User shall have the opportunity to review any new terms and conditions deriving from the new partnership and choose to switch to the new payment service provider or a different third-party payment service provider (please see Section 11), or cancel any Kayana services altogether (please see Section 19). The Company shall endeavour to make the transition period and process as smooth as possible for the User and their customers.

13. Customer Support Services

13.1. For any questions, requests, or issues, please contact our Customer Support Team for assistance. Our team, which includes Technical Support, is available 24 hours a day, 7 days a week, every day except Ontario statutory holidays. In the event of an unexpected disruption to telephone or internet services affecting communication, our operational hours may be temporarily reduced.

13.2. The Company employs a comprehensive internal ticketing system across all support channels. This system gathers data exclusively for ticket prioritisation and generating reports aimed at internal management and enhancement efforts. Importantly, any data utilised for these internal reports will be anonymised to ensure privacy. Under no circumstances will data be shared with third parties without the User's explicit consent.

13.3. The availability of customer support channels for the User will vary based on their subscription tier. Should a support channel encounter technical issues and temporarily become unavailable, the User is encouraged to reach out to the Customer Support Team through an alternative channel.

13.4. The User is entitled to technical support for any issues encountered with the Company's software or hardware. Support requests can be made via telephone or email at info@kayanaforbusiness.com and will be addressed within 24 hours. For more intricate problems, the issue will be escalated to our second-line support team, who will aim to resolve it within 72 hours from the initial request. Should the Technical Support Team face an unprecedented issue, the Company will commit to regularly updating the User on the expected resolution timeline, ensuring minimal disruption to the service's functionality.

13.5. Technical support is available to the User via the leading messaging service. If no other support channel is operable, telephone support may be offered.

13.6. We offer complimentary remote training on Cloud services upon request during the first four weeks following installation or delivery. Sessions are subject to team availability and will be scheduled within reasonable timeframes. Each training session lasts up to one hour and can be conducted twice within the initial four-week period. If additional training is needed, it is available at a rate of $170 per hour.

13.7. The Company does not provide on-site visits to User locations as a component of our technical support offerings. All technical assistance from the Company is exclusively available remotely.

13.7.1. Users are expected to help in resolving technical problems under the remote guidance of an engineer.

13.7.2. If troubleshooting requires more time to resolve, the User will have the option to continue at a more convenient time.

13.7.3. If a user needs to grant remote access to their device(s) or engage in screen sharing with a technical support engineer, it is their responsibility to ensure that all sensitive information is securely closed on their device before initiating the remote access or screen sharing.

13.8. The Company's Customer Support Team is presently located in India, though this may change at the Company's discretion. Kayana will periodically evaluate the team's location as necessary. Should a relocation be deemed appropriate, the Company is not obligated to seek User consent for moving the Customer Support Team to a new location.

14. Third-Party Licensing, Tools, and Integrations

14.1. The Software has been crafted using a diverse array of technologies, including Android, PHP, Python, Flutter, Angular, HTML, MySQL, JavaScript, eJabber, and CSS, among other tools. Presently, these platforms are available under licence-free terms, eliminating the need for users to obtain separate software licences. However, should any third-party software incorporated into the solution transition to a paid model, users will be required to either subscribe directly to the service or compensate the Company for the requisite licence fees.

14.2. The Company has seamlessly integrated the Google Maps API to facilitate address searches using postcodes. This feature enhances various processes, including order placements, customer registrations, and loyalty management. However, the Company does not exert control over the accuracy of these records and, consequently, cannot be held responsible or liable for their precision. To add value to our service, we offer Users 1,000 complimentary address lookups each month. Should the need for additional lookups arise, these will incur charges at rates specified in the subscription level or provided quotation, which will be reflected in the subsequent month's billing.

14.3. To enhance software functionality, the company has incorporated a range of third-party tools, including but not limited to Deliveroo, Deliverect, MailChimp, Message Bird, SendGrid, Nash, Twilio, and Xero, among others. Users interested in leveraging any of these integrated third-party services must directly subscribe to them through the respective provider. The company expressly disclaims any responsibility for the pricing, performance, and any disputes arising from the use of these third-party tools. If a user already holds a subscription to any of the mentioned third-party services, they can synchronise their existing account with our software, seamlessly integrating their tools.

14.4. Third-party tools and integrations may be modified or withdrawn at any time, without prior notice to Kayana or the User. The Company will not be liable for any resulting loss of profits, business, goodwill, use, data, or other tangible and intangible losses incurred due to the discontinuation of any third-party tools and integrations, with or without prior warning.

14.5. Users may request that the Company furnish a comprehensive list of all third-party tools and integrations at any given time.

15. Hardware Refunds Policy

15.1. By submitting your order details, you are offering to purchase the item(s) you specified in your order form. We reserve the right to refuse your order if necessary. We will notify you if this is the case and return any payment you have made.

15.1.1. When purchasing hardware and software, you can cancel for free prior to installation; if, after installation, no installation fees will be refunded.

15.1.2. If you've purchased software and hardware services, you have a 28-day cooling-off period during which you can cancel the contract by returning all equipment to the address listed below. Refunds will be issued for the hardware costs only; software and installation fees are non-refundable. Please ensure the equipment is returned in its original packaging and is free from any damage.

Kayana World Limited

Arch 57, Ingate Place

Battersea London SW83AG

Contact - info@kayanaforbusiness.com

15.2. If you decide to cancel your order, you must notify us immediately, preferably by phone, and quote your order number.

15.2.1. If no delivery has been dispatched, no cancellation fee applies, and you will be issued a full refund. If the order has already been sent for delivery, your delivery cancellation request will be refused, and you will need to refer to the process detailed in Section 16.

15.2.2. If the cancellation was made in time and once we have accepted your delivery cancellation request, we will refund or re-credit your payment card with the full amount within fourteen (14) days, including the initial delivery charge (where applicable).

15.3. Should a split delivery become necessary (due to all items not being available simultaneously), our team will notify you about the expected delivery date for the outstanding items. You have the right to decline a split delivery prior to dispatch, opting instead to wait for the availability of all items at once, or you may choose to cancel your order and receive a refund.

15.4. In the unlikely event that we deliver a wrong item of hardware, you have the right to either:

15.4.1. reject the delivery of the wrong item, and you shall be fully refunded for the missing item; or

15.4.2. reject the delivery of the wrong item and request that we replace the incorrect item with the item that you ordered, in which case we shall send you the correct one as soon as possible.

15.4.3. If you discover that a wrong item has been dispatched after the delivery, you will be required to return the incorrect item to avoid being charged for it.

15.5. Should any items be damaged during transit, it is imperative that the User reports such incidents to Kayana within seven (7) working days following delivery. In instances where the packaging is noticeably damaged upon receipt, the User must immediately notify the delivery driver, who may then document the damage in their system. For any items requiring replacement due to damage, the User is expected to prepare them for collection in their original packaging, complete with all accessories and documentation. Kayana will organise the collection and facilitate the delivery of replacements.

15.6. In accordance with the Sale of Goods Act (Ontario) and the Consumer Protection Act, 2002 (Ontario) and the stipulations of Section 1.6, the User confirms they are not acquiring the Software or Hardware as a 'consumer', and therefore statutory consumer rights under that legislation do not apply to this Agreement save to the extent they cannot lawfully be excluded. Nevertheless, in a spirit of goodwill, Kayana offers a "7-Day Money Back Guarantee" for hardware purchases.

15.6.1. If you decide to return your Hardware order, the Company will provide a full refund for any items returned in undamaged condition within seven days of delivery, deducting any charges for delivery and returns. Returned items must be unused, remain in their original packaging, complete with all accessories and documentation, and be in a condition suitable for resale as "as new."

15.6.2. The Company reserves the right to refuse a full or partial refund if:

- any item is not returned in its original packaging; or

- any item is missing any accessories and/or documentation; or

- the goods are in a damaged condition (any damaged equipment will be charged at full cost); or

- the goods are not returned within seven (7) days of delivery.

15.6.3. Should you wish to return your goods to us, you will be responsible for the delivery costs associated with the return. Kayana can organise a collection on your behalf, but the associated costs will be deducted from your total refund.

15.7. Should you have a valid formal complaint, you are entitled to request a refund within seven days following the delivery date. This is subject to our review and approval of the complaint.

15.8. In the case of a return, refunds, credit notes, or exchanges will be issued exclusively to the original payment card or the individual/business that placed the order. Please note that refunds for payments made via debit/credit card may require up to twenty-eight days to process, even if the order is cancelled immediately after placement. This processing duration is outside our control, and we apologise for any inconvenience this may cause.

15.9. Payments made for onsite installations, product imports, support services, postage, module integrations, as well as repair and labour expenses, are non-refundable.

15.10. Due to significant expenses associated with configuration, personalisation, training, and installation, all costs related to software sales and licence subscriptions fall outside the scope of the standard returns policy. Consequently, these items are strictly non-refundable.

16. Hardware Warranty Returns Process

16.1. The User is entitled to request a warranty return if they believe the equipment supplied by Kayana does not meet its intended purpose within four weeks of installation. This request can be made by contacting the Customer Support Team.

16.2. The Company will strive to understand the reasons behind the User's belief that the product is 'not fit for purpose'. It will make reasonable efforts to resolve any issues through remote troubleshooting.

16.3. Should remote troubleshooting prove unsuccessful, the Company will request that the User send the faulty hardware for repair to a designated address via courier service. It is the User's responsibility to ensure the hardware is appropriately packaged to avoid damage during transportation. Should damage occur due to insufficient packaging, the Company reserves the right to charge the User a fee. Alternatively, we may send an engineer to swap the equipment out, depending on which package of support you have selected.

16.4. After repairing the hardware, the Company will return it to the User. If the fault cannot be repaired, the Company will provide the User with a replacement for the faulty hardware. Please note that any replacement may be a refurbished item.

16.5. If the item returned is found to be in a working condition but in a poor and unreasonable state of cleanliness, the User will be billed for cleaning at a fixed rate of $140 per item.

16.6. The Company may offer warranty refunds only after exhausting all efforts to resolve any issues or faults, and if no suitable replacement equipment is available.

16.7. The company is unable to process warranty refunds for hardware under the following circumstances:

16.7.1. Misunderstanding or improper use of the system by the user or staff.

16.7.2. Incompatibility with third-party items or systems.

16.7.3. The equipment has been configured, personalised, and/or used.

16.7.4. The product exceeds the user's needs.

16.7.5. User's unstable or insufficient internet connection causing operational issues.

16.7.6. Accidental damage to the item by the user post-delivery.

16.7.7. Misuse of the item by the user, resulting in damage.

16.7.8. User attempting to open or tamper with the hardware.

16.7.9. Environmental issues beyond the company's control.

16.7.10. The user's business is undergoing bankruptcy.

16.8. Hardware repairs beyond the two-year standard manufacturer's warranty may incur additional charges. These costs will be mutually agreed upon by the Company and the User before any repair work commences.

17. SMS/MMS Mobile Message Marketing Program

17.1. Kayana provides a mobile messaging service ("MMM") via AWS SMS Services and SMS Global. By choosing to utilise and participate in this service, the User agrees to adhere to the specific Mobile Messaging Terms and Conditions, this Section, and Canada's Anti-Spam Legislation (CASL).

17.2. User Opt-In: MMM allows Users to receive SMS/MMS mobile messages by affirmatively opting into MMM, such as through online, offline, or application-based enrolment forms. Regardless of the opt-in method the User has utilised to join MMM, the User acknowledges that this Agreement applies to the User's participation in MMM.

17.2.1. By participating in MMM, the User agrees to receive marketing mobile messages at the phone number associated with the User's opt-in, and the User understands that consent is not required to make any purchase from the Company.

17.2.2. Message and data rates may apply.

17.3. User Opt Out: The User reserves the right to request to opt out of MMM should the User not wish to continue participating.

17.3.1. To opt out of MMM, the User must reply "STOP", "END", "CANCEL", "UNSUBSCRIBE", or "QUIT" to any mobile message from the Company. The User may receive an additional mobile message confirming the User's decision to opt out.

17.3.2. The User understands and agrees that the preceding options are the only reasonable methods of opting out.

17.3.3. The User understands and agrees that any other method of opting out, including, but not limited to, texting words other than those set forth above or verbally requesting one of the Company's employees to remove the User from MMM's mailing list, is not a reasonable means of opting out.

17.4. Duty to Notify and Indemnify: If at any time the User intends to stop using the mobile telephone number that has been used to subscribe to MMM, including cancelling the User's service plan or selling or transferring the telephone number to another party, the User must complete the User Opt Out process set forth above (Section 17.3) before ending the User's use of the mobile telephone number.

17.4.1. The User understands and agrees that the User's agreement to do so is a material part of these terms and conditions.

17.4.2. The User agrees that the User shall indemnify, defend, and hold the Company harmless from any claim or liability resulting from the User's failure to notify us of a change in the information the User has provided the Company. The User understands and agrees that if the User discontinues the use of the User's mobile telephone number without notifying Kayana of such change, the User will be responsible for all costs (including any legal fees) and liabilities incurred by the Company or any party that assists in the delivery of the mobile messages, as a result of claims brought by individual(s) who are later assigned that mobile telephone number.

17.4.3. This duty and agreement shall survive any cancellation or termination of the User's agreement to participate in any of the Company's Programs.

17.5. Program Description: MMM's scope is not limited; users who opt in can expect to receive messages concerning the marketing and sale of digital and physical products, services, and events.

17.6. Cost and Frequency: Message and data rates may apply. MMM involves recurring mobile messages, and additional mobile messages may be sent periodically based on your interaction with Kayana.

17.7. Support Instructions: For support regarding MMM, text "HELP" to the number you received messages from or email Kayana at info@kayanaforbusiness.com.

17.8. MMS Disclosure: MMM will send SMS TMs (terminating messages) if your mobile device does not support MMS messaging.

17.9. Disclaimer of Warranty: MMM is offered on an "as-is" basis and may not be available in all areas at all times and may not continue to work in the event of product, software, coverage or other changes made by the User's wireless carrier/service provider/network operator.

17.9.1. The Company shall not be liable for any delays or failures in the receipt of any mobile messages connected with this Program. Delivery of mobile messages is subject to effective transmission from your wireless service provider/network operator and is outside of the Company's control.

17.9.2. Kayana, any party that assists the Company in the delivery of the mobile messages, and the respective mobile network operators, are not liable for delayed or undelivered mobile messages.

17.10. Participant Requirements: Users must possess a wireless device that supports two-way messaging, utilise a participating carrier, and subscribe to a text messaging plan. Not all mobile phone providers offer the required service for participation in this Programme. Users are advised to verify their device's text-messaging capabilities and follow any specific instructions.

17.11. Age Restriction: You may not use or engage with the marketing Program if you are under eighteen (18) years of age.

17.12. Prohibited Content: The User acknowledges and agrees not to send any prohibited content over MMM. Prohibited content includes, but is not limited to:

17.12.1. any fraudulent, libellous, defamatory, scandalous, threatening, harassing, or stalking activity;

17.12.2. objectionable content, including profanity, obscenity, lust, violence, bigotry, hatred, and discrimination based on race, sex, religion, nationality, disability, sexual orientation, or age;

17.12.3. pirated computer programs, viruses, worms, Trojan horses, or other harmful code;

17.12.4. any product, service, or promotion that is unlawful where such product, service, or promotion thereof is received;

17.12.5. any content that implicates and/or references personal information that is protected by the Personal Information Protection and Electronic Documents Act (PIPEDA) and applicable provincial privacy legislation; and

17.12.6. any other content prohibited by the applicable laws in the jurisdiction from which the message is sent.

17.13. Dispute Resolution, Arbitration and Class Action Waiver. Please read this Section carefully. It affects your rights and will have a substantial impact on how claims between the Parties are resolved:

17.13.1. If there is a dispute, claim, or controversy between the Parties or any other third-party service provider acting on the Company's behalf to transmit the mobile messages within the scope of MMM, arising out of or relating to statutory claims, common law claims, this Agreement, or the breach, termination, enforcement, interpretation or validity thereof, including the determination of the scope or applicability of this agreement to arbitrate, such dispute, claim, or controversy will be, to the fullest extent permitted by law, determined by arbitration in Ajax, Ontario, before one sole arbitrator.

17.13.2. The Parties agree to submit the dispute to binding arbitration under the Arbitration Act, 1991 (Ontario). Except as otherwise provided herein, the arbitrator shall apply the applicable laws (Section 37) of the jurisdiction in which Kayana's principal place of business is located without regard to the possible conflict of laws between different jurisdictions in which the Parties may be operating.

17.13.3. Within ten (10) calendar days after the arbitration demand is served upon a party, the Parties must jointly select an arbitrator with at least five (5) years' experience in that capacity and who has knowledge of and experience with the subject matter of the dispute.

17.13.4. If the Parties disagree on an arbitrator within ten (10) calendar days, a Party may apply to the Treasurer of the Law Society of Ontario to appoint an arbitrator, who must satisfy the same experience requirement.

17.13.5. In the event of a dispute, the arbitrator shall decide the enforceability and interpretation of this arbitration agreement under the Arbitration Act, 1991 (Ontario).

17.13.6. The Parties agree that the Party submitting the dispute for arbitration may request an emergency action by the other Party, instead of seeking an emergency injunction from a court, with the same effect as a court injunction. The Parties agree that the appointment of an emergency arbitrator would not be necessary due to the additional costs associated with it.

17.13.7. The decision of the arbitrator shall be final and binding, and no party shall have rights of appeal except for those provided in Section 45 of the Arbitration Act, 1991 (Ontario).

17.13.8. Each Party shall bear its share of the fees paid for the arbitrator and the administration of the arbitration; however, the arbitrator shall have the power to order one party to pay all or any portion of such fees as part of a well-reasoned decision. The Parties agree that the arbitrator shall have the authority to award arbitration fees only to the extent expressly authorised by statute or contract.

17.13.9. The arbitrator shall have no authority to award punitive damages, and each party hereby waives any right to seek or recover punitive damages with respect to any dispute resolved by arbitration, save where such a waiver is not permitted by applicable law.

17.13.10. The Parties agree to arbitrate solely on an individual basis, and this Agreement does not permit class arbitration or any claims brought as a claimant or class member in any class or representative arbitration proceeding, to the extent permitted by applicable law.

17.13.11. Except as may be required by law, neither a party nor the arbitrator may disclose the existence, content, or results of any arbitration without the prior written consent of both Parties, unless to protect or pursue a legal right.

17.13.12. If any term or provision of this Section is invalid, illegal, or unenforceable in the jurisdiction specified in Section 37, such invalidity, illegality, or unenforceability shall not affect any other term or provision of this Section.

17.13.13. If, for any reason, a dispute proceeds in court rather than in arbitration, the Parties hereby waive any right to a jury trial to the extent permitted by applicable law. This arbitration provision shall survive any cancellation or termination of the User's agreement to participate in any of the Company's Programs.

17.14. The User warrants and represents to the Company that the User has all necessary rights, power, and authority to agree to these Terms and perform the User's obligations hereunder, and nothing contained in this Agreement or in the performance of such obligations will place the User in breach of any other contract or commitment.

17.15. The failure of either Party to exercise in any respect any right provided for herein will not be deemed a waiver of any further rights hereunder.

17.16. Suppose any provision of this Agreement is found to be unenforceable or invalid. In that case, that provision will be limited or eliminated to the minimum extent necessary so that this Agreement will otherwise remain in full force and effect and enforceable.

17.17. Any new features, changes, updates or improvements of MMM shall be subject to this Agreement unless explicitly stated otherwise.

17.18. Kayana reserves the right to change this Agreement from time to time. Any updates to this Agreement shall be communicated to the User. The User acknowledges their responsibility to review this Agreement periodically and to be aware of any changes made to it. By continuing to participate in MMM after any such changes, the User accepts this Agreement as modified.

18. Formal Complaints Procedure

18.1. Kayana is dedicated to delivering high-quality service to our customers, with a commitment to transparency, accountability, and respect. If you find any aspect of our service unsatisfactory, please contact us immediately by phone or email. We will strive to address and resolve any concerns promptly. For issues that do not pertain to hardware malfunctions, the Company will follow the specified Complaints Procedure to ensure a timely and fair resolution.

18.1.1. Stage 1: Should an informal resolution to your issue prove elusive, we encourage you to reach out to us directly in writing, either through email or postal service, to allow us to rectify the situation. Within your communication, please include a detailed account of your grievance, the impact it has had on you, and the resolution you are seeking. Rest assured, we will acknowledge receipt of your complaint within five business days.

18.1.2. Stage 2: If the initial resolution does not meet your expectations, you are encouraged to escalate your complaint by contacting the Chief Executive Officer (CEO) either through email or post, requesting a review of both your complaint and the initial response. Upon receipt, the CEO will acknowledge your request within five business days and aim to provide a comprehensive response within twenty business days. Kayana is committed to resolving issues promptly and efficiently; however, it's essential to note that some more complex matters may require additional time for a thorough investigation. In such cases, you will be informed about the steps being taken to address your complaint, the expected timeline for a resolution, and the contact details of the person handling your case.

18.1.3. Final Step: Should you remain dissatisfied with the response and measures undertaken by the CEO, you are entitled to escalate your complaint by writing to one of the following bodies, depending on your issue's specific nature:

- Office of the Privacy Commissioner of Canada (OPC): https://www.priv.gc.ca/

- Competition Bureau Canada: https://competitionbureau.gc.ca/

- Ontario Ministry of Public and Business Service Delivery (Consumer Protection Ontario) — Telephone: 1-800-889-9768 — Website: https://www.ontario.ca/page/consumer-protection

19. Cancellation of Licence Subscription — SLA and Procedure

19.1. Users wishing to cancel their licence subscription must provide Kayana with thirty (30) days' written notice within the contractual period (36 months, or as otherwise agreed between the User and the Company). Notice must be given using the procedure set out in Section 19.2.

19.2. Cancellation procedure and Service Level Agreement (SLA): to cancel, the User must submit a written cancellation request to info@kayanaforbusiness.com or via the in-app support channel, quoting the User's account/subscription reference. Kayana commits to the following service levels for every cancellation request:

19.2.1. Acknowledgement: Kayana will acknowledge receipt of the cancellation request within two (2) Business Days, confirming the date the request was received and the calculated effective termination date.

19.2.2. Confirmation of effective date: Kayana will confirm, in writing, the effective date of termination (being no earlier than 30 days from the date of a valid request, subject to Section 19.1) within five (5) Business Days of acknowledgement.

19.2.3. Data export window: the User will have until the effective termination date to export all data held in the Cloud Software, in accordance with Section 19.4.

19.2.4. Final invoice and refund: Kayana will issue a final invoice and, where a pro-rata refund is due under Section 19.5, process that refund within fourteen (14) days of the effective termination date.

19.2.5. Hardware return (where applicable): where the User's subscription included leased or financed hardware, Kayana will provide return instructions and a shipping label (where applicable) within five (5) Business Days of the effective termination date, and the User must return the hardware within fourteen (14) days of receiving those instructions.

19.3. If the User's billing cycle occurs within the thirty-day f period, a full subscription fee will be charged. Upon cancellation of the subscription, a pro-rata refund will be provided for any time remaining after the termination date, calculated in accordance with Section 19.2.4.

19.4. During the 30-day notice period for subscription cancellation, Users are advised to download all data stored in the Cloud Software associated with their account. Once the licence subscription is terminated, all account data will be irrevocably deleted, with no possibility of retrieval, save for any data Kayana is required to retain by law.

19.5. The User has the option to revoke their cancellation request in writing at any time during the thirty-day notice period, thereby continuing their licence subscription seamlessly with no further action required.

19.6. Kayana may cancel or suspend a User's subscription on the same 30-day notice basis for its own convenience, save that Kayana will use reasonable endeavours to give the User at least ninety (90) days' notice where the User has an active minimum-term contract, to allow the User a reasonable opportunity to migrate to an alternative provider. This Section 19.6 does not affect Kayana's right to terminate immediately for cause under Section 36.

20. Tax Calculations

20.1. Kayana calculates tax on each line sold in a transaction, a common practice in most software.

20.2. Users may notice a discrepancy in the total tax amount when comparing calculations based on individual transactions versus the total sales over a specific period; for instance, selling an item at $0.35 with a 20% tax rate results in a tax of $0.0583, which, when rounded, amounts to $0.06 per transaction. Selling this item 100 times individually would accumulate to a tax total of $6.00. However, calculating 20% tax on the collective sales of 100 items yields a tax figure of $5.83.

20.3. Discounts applied to tax on a transaction are taken equally from all items in the transaction (pro rata).

20.4. Kayana is not liable for any incorrect tax calculations. The User is responsible for taking professional tax advice before submitting returns to tax and other governing authorities.

21. Company Income from Third-Party Referrals

21.1. The User recognises and agrees that the Company will obtain financial benefits or commissions from third-party providers, including but not limited to leasing, finance, card processing, software tools, delivery partners, and hardware tools, as a result of referring the User to these services.

21.2. The Company shall not notify or disclose to the User any such financial incentives/commission figures at any time, save where required by applicable law.

21.3. The User recognises and agrees that the Company has the complete authority to receive and retain any financial incentives.

22. Intellectual Property Rights

22.1. The User recognises and consents that Kayana retains all intellectual property rights related to the software and hardware, encompassing, but not limited to, copyrights and trademarks.

22.2. Under this licence agreement, the Company provides the User with a non-exclusive, non-transferable, and time-limited licence to utilise the software, interfaces, content, documentation, and any data, regardless of whether it's stored in read-only memory, on other media, or in any other format.

22.3. The User agrees not to contest or engage in any actions that would undermine this ownership.

22.4. By using the software, the User grants the Company a royalty-free, irrevocable, and perpetual license to utilise information and/or data derived from the User's activities on the Software, with the condition that such information or data is anonymised before its use. Beyond this specified right, the Company does not assert any intellectual property rights over the information or content entered by the User into the Software.

22.5. Users are encouraged to offer feedback, suggestions, or alternative options regarding the Software to the Company. By doing so, users acknowledge that the Company has the freedom to utilise, adapt, and integrate these insights without any obligations. Furthermore, Kayana retains all intellectual property rights for any modifications made in response to this feedback.

22.6. The Company maintains ownership of the software and reserves all rights not explicitly granted to the User.

22.7. The User is not allowed to assign, sublicense, novate, or transfer these Terms or any of the rights granted to them, save as permitted under Section 33 (Assignment and Subcontracting).

23. Unauthorised, Malicious and/or Illegal Use

23.1. The Company explicitly requires that the User not undertake any modifications or integrations to the Company Software without obtaining prior approval.

23.2. The User must not:

23.2.1. use the Software in any unlawful manner, for any fraudulent or illegal purpose, or in any manner inconsistent with these Terms; or

23.2.2. upload any malicious or unlawful content and/or data onto the Software; or

23.2.3. infringe on the intellectual property rights, or those of any third party, in their use of the Software; or

23.2.4. tamper with or use the Software in a way that could damage, disable, overburden, impair or compromise the Company's systems or security, or interfere with other users' systems or security; or

23.2.5. collect any information or data from the Software and/or Hardware or systems; or

23.2.6. disclose or distribute information relating to another user of the Software to any third party; or

23.2.7. use any other User's information for any marketing purposes unless they have obtained the User's express permission to do so; or

23.2.8. access or register user logins via any automated methods.

24. Limitation of Liability

24.1. Nothing in these Terms excludes or limits our liability for:

24.1.1. death or personal injury caused by our negligence; and/or

24.1.2. fraud or fraudulent misrepresentation; and/or

24.1.3. any matter concerning which it would be unlawful for us to exclude or restrict our liability.

24.2. Nothing in these terms and conditions will restrict your statutory rights.

24.3. The Company shall not be liable for any direct, indirect, incidental, special, consequential or exemplary damages, including but not limited to damages for loss of profits, business, goodwill, use, data or other intangible and tangible losses resulting from:

24.3.1. the use or the inability to use the Software, hardware (in whole or in part) or any technical malfunctions; or

24.3.2. the unauthorised access to, or alteration of, your communications or data; or

24.3.3. the cost of procurement of substitute goods and services; or

24.3.4. the conduct or actions of any third party regarding the Software; or

24.3.5. any other matter relating to the Software.

24.4. The Company accepts no liability for any delays, failures, errors or omissions or loss of transmitted information, viruses or other contamination or destructive properties transmitted to you or your computer system via our Software.

24.5. Force Majeure: We will not be deemed to be in breach of contract or of these terms and conditions as a result of any delay in our performance or failure to perform our obligations if that delay or failure to perform is due to any cause or circumstance beyond our reasonable control ("Force Majeure Event"), including, but not limited to, all overwhelming and unpreventable events caused directly and exclusively by forces of nature that can be neither anticipated, nor controlled, nor prevented by the exercise of prudence, diligence, and care, including but not limited to: war, riot, civil commotion, epidemic or pandemic, failure of public utilities or telecommunications networks, cyberattack against critical infrastructure, compliance with any law or governmental order, rule, regulation or direction and acts of third parties.

24.5.1. The Party affected by a Force Majeure Event shall notify the other Party in writing as soon as reasonably practicable, and in any event within five (5) Business Days of becoming aware of the event, setting out the nature of the event and its expected impact and duration, and shall use reasonable endeavours to mitigate the effect of the Force Majeure Event on its performance.

24.5.2. If a Force Majeure Event prevents, hinders or delays a Party's performance of its obligations for a continuous period of more than sixty (60) days, either Party may terminate this Agreement by giving thirty (30) days' written notice to the other Party, without further liability to either Party, save for accrued rights and obligations (including any pro-rata refund due to the User under Section 19).

24.6. If we have contracted to provide orders to more than one customer and are prevented from fully meeting our obligations to you because of a Force Majeure Event, we may decide at our absolute discretion which orders we will fill and to what extent. Nothing in these Terms obliges us to prioritise any order the User places in the event of Force Majeure.

24.7. To avoid doubt, nothing in Clause 24.5 shall excuse the Customer from any payment obligations under this agreement, save to the extent that the Force Majeure Event directly prevents the Customer from making payment.

24.8. The products sold by Kayana are provided for commercial use only. Accordingly, we do not accept liability for any indirect loss, consequential loss, loss of data, loss of income or profit, loss or damage to property and/or loss from claims of third parties arising out of the use of the Software and/or Hardware or for any products or services purchased from the Company.

24.9. We have taken all reasonable steps to prevent Internet fraud and ensure that any data collected from you is stored as securely and safely as possible. However, we cannot be held liable in the unlikely event of a breach in our secure computer servers or those of third parties.

24.10. No delay or failure on our part to enforce our rights or remedies under the Agreement shall constitute a waiver on our part of such rights or remedies unless such waiver is confirmed in writing.

24.11. The User agrees to defend, indemnify and hold harmless Kayana, its affiliates and its licensees and licensors, and their employees, contractors, agents, officers and directors, from and against any claims, damages, obligations, losses, liabilities, costs or debt, and expenses (including but not limited to reasonable legal fees), resulting from or arising out of: (a) your use and access of the Services; (b) any unauthorised use of your account or password; or (c) any other breach of the terms of this Agreement.

24.12. In addition, you will indemnify us and our affiliates against any losses, damages, or claims (and all related costs, including legal fees), penalties, fines, interest, expenses and other liabilities resulting from a third-party claim against us or our affiliate arising from this Agreement and relating to a violation or claimed violation of the third party's intellectual property rights, where the loss, damages or claim arises from us or an affiliate, using or permitting the use of, or being or having been the registered proprietor of a domain name, a brand name, trademark, logo or other intellectual property which the third-party claims violate its rights, or where it is claimed we or an affiliate have assisted or permitted you to use or to be a registered proprietor of such rights in violation of the third party's rights.

24.13. Other than as set out above, the Company's maximum aggregate liability arising from any losses for paid licence subscription users under or in connection with these Terms is limited to the total amount of subscription fees paid by the User in the previous twelve (12) months.

25. Confidentiality

25.1. Each Party shall keep the other Party's Confidential Information confidential and shall not disclose it to any third party except as permitted under this Section 25, and shall use the other Party's Confidential Information only for the purposes of performing its obligations under this Agreement.

25.2. A Party may disclose the other Party's Confidential Information: (a) to its employees, officers, contractors, and professional advisers who need to know such information for the purposes of exercising the Party's rights or performing its obligations under this Agreement, provided that the disclosing Party takes reasonable steps to ensure that such persons comply with confidentiality obligations equivalent to those in this Section; (b) as may be required by law, a court of competent jurisdiction, or any governmental or regulatory authority; or (c) as required to establish a Party's rights under this Agreement.

25.3. The obligations in this Section 25 do not apply to information that: (a) is or becomes publicly available other than through breach of this Agreement; (b) was lawfully in the receiving Party's possession before disclosure; (c) is lawfully obtained from a third party without restriction; or (d) is independently developed without use of or reference to the disclosing Party's Confidential Information.

25.4. The obligations in this Section 25 shall survive termination or expiry of this Agreement for a period of five (5) years, save in respect of trade secrets, which shall remain confidential for as long as they retain the character of a trade secret.

26. Data Breach Notification

26.1. Kayana will implement appropriate technical and organisational measures designed to detect a Security Incident (being any confirmed unauthorised access to, or acquisition, disclosure, alteration, loss, or destruction of, Personal Data processed by Kayana on the User's behalf) without undue delay.

26.2. Upon becoming aware of a Security Incident affecting the User's Personal Data, Kayana will notify the User without undue delay, and in any event within seventy-two (72) hours of becoming aware of the Security Incident, or such shorter period as may be required by the Personal Information Protection and Electronic Documents Act (PIPEDA) and applicable provincial privacy legislation.

26.3. Kayana's notification under Section 26.2 will, to the extent then known, describe: (a) the nature of the Security Incident; (b) the categories and approximate number of Data Subjects and personal data records concerned; (c) the likely consequences of the Security Incident; and (d) the measures taken or proposed to address the Security Incident and mitigate its possible adverse effects.

26.4. Kayana will cooperate with the User and take such reasonable steps as are directed by the User to assist the User in meeting the User's own obligations to notify the Office of the Privacy Commissioner of Canada (OPC) and affected Data Subjects, where the User is the Data Controller.

26.5. Nothing in this Section 26 shall be construed as an admission of fault or liability by Kayana in respect of any Security Incident.

27. Service Levels and Availability

27.1. Kayana will use commercially reasonable efforts to make the Cloud Software available with an uptime of at least 99% in each calendar month, excluding scheduled maintenance (notified in accordance with Section 6.16) and any unavailability caused by a Force Majeure Event, the User's own equipment or internet connectivity, or third-party integrations not controlled by Kayana.

27.2. If Kayana fails to meet the uptime target in Section 27.1 in any two (2) consecutive calendar months, the User may request a service credit equal to 5% of that month's Licence Software Fee for each full percentage point of downtime below the 99% target, up to a maximum of 50% of that month's Licence Software Fee.

27.3. If Kayana fails to meet the uptime target in Section 27.1 in any three (3) consecutive calendar months, or in any four (4) months within a rolling twelve-month period, the User may terminate this Agreement for cause under Section 36, notwithstanding any minimum term, by giving thirty (30) days' written notice, and shall be entitled to a pro-rata refund in accordance with Section 19.

27.4. Service credits under this Section 27 are the User's sole and exclusive remedy for failure to meet the uptime target, save for the User's termination right under Section 27.3 and any rights that cannot lawfully be excluded.

28. Anti-Bribery, Anti-Corruption and Sanctions Compliance

28.1. Each Party shall comply with all applicable anti-bribery and anti-corruption laws, including the Corruption of Foreign Public Officials Act (CFPOA), and shall not offer, give, request, or accept any bribe or improper advantage in connection with this Agreement.

28.2. Each Party warrants that it is not, and will not become, subject to any economic or trade sanctions administered by any relevant governmental authority, and shall not use the Services in violation of any applicable export control or sanctions law.

28.3. A breach of this Section 28 shall be treated as a material breach entitling the non-breaching Party to terminate this Agreement immediately under Section 36.

29. Representation

29.1. The User has the right and power to enter into this Agreement, and entering into it will not breach any agreement the User has with a third party.

29.2. By assenting to this Agreement, the User represents and warrants that they have the full right, power and authority to access and use the Software and, to the extent necessary, that they have obtained all necessary corporate or other authorisations or consents to access and use the Services. Thus, if you are an individual (e.g., employee or consultant) acting on behalf of an organisation, you represent and warrant that you have obtained all necessary authorisations or consents (i.e., you must be an authorised representative) to accept these Terms on behalf of such organisation so that, in addition to yourself, such organisation is bound by these terms.

30. Severance

30.1. If any part of these Terms and Conditions is invalid by a court of Law, tribunal or another forum of competent jurisdiction or otherwise rendered unenforceable, that decision shall not invalidate or void the other parts of this Agreement. An amendment of these Terms and Conditions shall be deemed to have been undertaken by any modification or severing parts of the Terms and Conditions as necessary to render them valid, legal and enforceable while preserving their sole purpose. Or, if this is not possible, substituting another valid, legal and enforceable provision that gives equivalent effect to the Parties' intent.

31. Notices

31.1. Any notice given under this Agreement must be in writing and sent by email or pre-paid post to the other Party's address set out below (or such other address as a Party notifies to the other from time to time).

31.2. Notices to Kayana should be sent to info@kayanaforbusiness.com or to Kayana WorldLimited

Arch 57, Ingate Place

Battersea London SW83AG

Contact - info@kayanaforbusiness.com. Notices to the User should be sent to the email address or postal address held on the User's account.

31.3. A notice is deemed received: (a) if sent by email, at the time of transmission, provided no delivery failure notification is received; or (b) if sent by pre-paid post, two (2) Business Days after posting.

32. Assignment and Subcontracting

32.1. The User may not assign, transfer, novate, or subcontract any of its rights or obligations under this Agreement without Kayana's prior written consent, save as expressly permitted elsewhere in this Agreement.

32.2. Kayana may assign, transfer, novate, or subcontract any or all of its rights and obligations under this Agreement, including to any affiliate or in connection with a merger, acquisition, corporate reorganisation, or sale of all or substantially all of its assets, without the User's consent, provided that Kayana gives the User reasonable notice of any such assignment.

33. Non-Solicitation

33.1. Neither Party shall, during the term of this Agreement and for twelve (12) months thereafter, directly solicit for employment any employee of the other Party who has been materially involved in the performance of this Agreement, without the other Party's prior written consent. This Section 33.1 does not apply to responses to general recruitment advertising not specifically targeted at the other Party's employees.

34. Third-Party Rights

34.1. A person who is not a Party to this Agreement shall have no right to enforce any of its terms, save that Kayana's affiliates, officers, employees, and agents may enforce Section 24 (Limitation of Liability) as if they were a Party.

35. Survival

35.1. Termination or expiry of this Agreement, howsoever arising, shall not affect any accrued rights or liabilities of either Party, nor shall it affect the continuation in force of Sections 2 (Definitions), 19.4 (data deletion), 22 (Intellectual Property Rights), 24 (Limitation of Liability), 25 (Confidentiality), 26 (Data Breach Notification), 29 (Representation), 34 (Third-Party Rights), this Section 35, 37 (Law and Jurisdiction), and any other provision expressly or by implication intended to survive termination.

36. Termination of Agreement

36.1. The Company may cease providing all parts of the Software at any time for any foreseen or unforeseen reasons, including, but not limited to, cessation of trading or bankruptcy. Nothing in these Terms is to be taken as a guarantee that the Software will always be available, either in its current form or an updated version.

36.2. This Agreement may be terminated by either Party in accordance with the cancellation procedure and notice periods set out in Section 19.

36.2.1. Should the User's billing cycle fall during the notice period, a full subscription shall be charged. Once the subscription is terminated, a refund will be issued on a pro-rata basis for any period the subscription covers past the termination date, in accordance with Section 19.2.4.

36.2.2. During the notice period, the User shall download all data stored on the Cloud Software for their account, in accordance with Section 19.4. All account data will be permanently deleted after the licence subscription is cancelled and this Agreement is terminated. There is no possible way to retrieve deleted data.

36.2.3. The User reserves the right to withdraw their termination request at any time during the notice period and continue the licence subscription without obstructions, in accordance with Section 19.5.

36.3. Kayana may decide to terminate this agreement with immediate effect should the User or any of their employees and/or associates display any form of bullying, inappropriate, violent, aggressive, threatening, intimidating, discriminatory and/or otherwise unlawfully disrespectful behaviour; and/or use any form of offensive, aggressive, threatening, discriminatory and/or otherwise unlawfully disrespectful language towards any employee or associate of Kayana.

36.3.1. In the event of a termination under this Section 36.3, Kayana shall provide the User with immediate verbal or written notice and written confirmation via email within twenty-four (24) hours.

36.3.2. Once the subscription is terminated, a refund will be issued on a pro-rata basis for any period the subscription covers past the termination date.

36.4. Either Party (the "Terminating Party") may terminate this Agreement immediately if:

36.4.1. the other Party files for bankruptcy, receivership, insolvency, reorganisation, dissolution, liquidation, or similar proceedings; or

36.4.2. the other Party had a bankruptcy, receivership, insolvency, reorganisation, dissolution, liquidation, or similar proceedings instituted against it, and such proceeding is not dismissed within sixty (60) days; or

36.4.3. the other Party makes an assignment for the benefit of its creditors or an offer of settlement, extension or composition to its creditors generally; or

36.4.4. a trustee, conservator, receiver, or similar fiduciary is appointed for that party or substantially all of the other Party's assets; or

36.4.5. the other Party commits any fraud or misrepresentation or engages in any act or omission that may damage the reputation, business, or goodwill of the Terminating Party; or

36.4.6. the other Party is found to be involved in any form of child labour, modern slavery, human trafficking, forced and bonded labour, human rights violations, money laundering or terrorist activity; or

36.4.7. the other Party breaches Section 28 (Anti-Bribery, Anti-Corruption and Sanctions Compliance); or

36.4.8. the other Party breaches any of the provisions of this Agreement and (if capable of remedy) fails to remedy that breach within fourteen (14) days of being notified of it in writing.

37. Law and Jurisdiction

37.1. Except as outlined in Section 28, any dispute arising from or related to this Agreement should, wherever possible, be resolved amicably through negotiations between the Parties within thirty (30) days following the receipt of a written notification by either party regarding the existence of a dispute. If a resolution is not achieved within these thirty days, the Parties shall then seek to settle the dispute through mutual mediation before considering litigation. Upon the initiation of this mediation process, the Parties will endeavour to mutually agree on the selection of a mediator, following receipt of a written request from either party to make such an appointment. If mediation is unsuccessful, either wholly or partially, either Party is then at liberty to bring the dispute or claim before a court for a final judgement.

37.2. These terms of use and any dispute or claim arising out of or in connection with them or their subject matter or formation (including non-contractual disputes or claims) shall be governed by and construed in accordance with the laws of the Province of Ontario and the federal laws of Canada applicable therein, and the courts of Ontario, Canada shall have exclusive jurisdiction to settle any such dispute, should the need so arise.

38. Entire Agreement

38.1. This Agreement, together with any supporting documents added in the Appendix, constitutes the entire Agreement between the Company and the User and supersedes any prior written or oral agreement concerning the subject matter hereof.

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