KAIRA TECHNOLOGIES INC.
TERMS OF USE – KAIRA MOBILE APPLICATION
Policy Update : December 20, 2024
These Terms of Use (the « Agreement ») are entered into between KAIRA TECHNOLOGIES INC. (“we”, “us”, “our” or the “Corporation”) and the individual or entity accepting this Agreement (“you”, “your”, “yours” or the “User”, and collectively with the Corporation, the “Parties”).
By downloading our Application or otherwise using our Services (as defined below), you acknowledge that you have read and agree to be bound by the terms of this Agreement, which prevails over all prior agreements, understandings, negotiations, and written or oral discussions between you and the Corporation, except for any Order Form (as defined below) entered into which shall form part of this Agreement and our privacy policy posted on the Application and our website.
You must agree to be bound by the terms and conditions of this Agreement to access and use our Services. Please do not subscribe to the Services or use our website if you disagree.
By entering into this Agreement on behalf of a company or other legal entity, you represent that you have the authority to bind such company or other legal entity.
If you have any questions in connection with this Agreement, we invite you to contact us at:
KAIRA TECHNOLOGIES INC.
A/S Chief Financial Officer
4, Place Ville Marie
Montréal (Québec) H3B 3Y1
Email: mario.vachon@kaira.ai
GENERAL TERMS
1 DEFINITION
For purposes of this Agreement and any document related thereto, the following terms will have the following meanings, unless expressly stated otherwise:
1.1 “Ancillary Services”: means (i) technical and maintenance support, as further outlined in this Agreement, and (ii) the administration, management, hosting, and system monitoring activities related to the Application;
1.2 “Application”: means the Corporation’s financial wellness mobile application made available for download and known as “Kaira”, as well as any version of the application that may be made available from time to time online by the Corporation as Software as a Service (SaaS);
1.3 “Documentation”: means our user guides, user policies, support materials, release notes, training materials, and other technical documentation relating to the Services, as updated from time to time by the Corporation and made available on the Application, the Corporation’s web site or otherwise;
1.4 “Equipment”: means all equipment and ancillary services not provided by the Corporation that are necessary to connect to, access or use the Application, including, but not limited to, portable devices, modems, electronic equipment, servers, operating systems, networks, web servers and the like;
1.5 “Feedback”: means suggestions, improvements, requests, recommendations, or other forms of feedback made by the User concerning the Services;
1.6 “Fees”: means all fees about the use of the Services as specified in an Order Form accepted by the User;
1.7 “Intellectual Property Rights”: means all present and future worldwide intellectual property rights, including, but not limited to, all rights under patent, copyright, trade secret or trademark laws, and all other similar rights, whether protectable or not;
1.8 “Order Form”: means an ordering document that is entered into between the Parties at the time of the subscription or modification of the Services, on the Application or elsewhere specifying in each case the Services to be provided by the Corporation according to this Agreement and including (i) the billing terms for the Services, (ii) the applicable Fees, (iii) the scope of the various features available in connection with the Services, (iv) the applicable payment method, (v) the initial term of your subscription, and (vi) any other terms and conditions relating to the Services. This Agreement shall be deemed to incorporate the terms and conditions of any Order Form executed between you and us;
1.9 “Services”: refers collectively to the Subscription Services and the Ancillary Services;
1.10 “Software”: means the source code, object code, and underlying structure, ideas, data, know-how, and algorithms relating to the Application or the Services, including any updates, improvements, or modifications thereto;
1.11 “Subscription Services”: means the Application made available to the User in the form of a subscription and per the terms and conditions of this Agreement, as well as any updates, improvements, or modifications thereto generally made available by us to the public;
1.12 “Term”: means the period beginning upon the execution of this Agreement by the User and ending on the date the User or the Corporation terminates the Services under the terms of this Agreement;
1.13 “User Account”: means any account created on the Application by or for the benefit of a User; and
1.14 “User Data”: means all non-public data (information, financial data, images, videos, comments, observations, etc.) that a User provides generates, stores, transmits or displays on the Application as part of the User’s use of the Services, or to which the User grants the Corporation access (including but not limited to information obtained by the Corporation from the User’s financial institutions, with the User’s authorization).
2 SOFTWARE SERVICES AND SUPPORT
2.1 The Corporation undertakes to provide the Services to the User during the Term, subject to the terms and conditions of this Agreement.
2.2 The Corporation hereby grants the User a non-exclusive, fully paid, royalty-free, worldwide, non-transferable, revocable, and non-sublicensable license to download the Application to the User’s devices during the Term only in connection with and to enable the User to use the Services.
2.3 The scope of the Services available to the User is specified in the Order Form. The User may at any time modify the scope of the Services. The User undertakes to pay any additional Fees resulting from this modification, if applicable, under the terms of this Agreement. The Corporation also reserves the right to modify the terms of the Agreement, or any Order Form related thereto upon prior notice of sixty (60) days to the User. If the User refuses to comply with the modified terms of the Agreement or Order Form, then the Customer may terminate this Agreement by giving written notice to this effect to the Corporation before expiry of the aforementioned period.
2.4 The Corporation may make changes to the Services and the Application, and the User may benefit from such changes during the Term. The Corporation undertakes not to modify the Services in such a way as to reduce its performance, functionality, availability, and security, without first notifying the User by sending an e-mail to the User or by otherwise notifying the User through the Application, in which case the User may elect to terminate User’s use of the Services immediately, and the provisions of Section 7.5 shall apply.
2.5 Updates to the Services including tools, utilities, enhancements, third-party applications, or general updates to improve the Services may be made available to the User or carried out periodically by the Corporation in its sole discretion. The User agrees to make or receive such updates, as the case may be. From time to time, the Corporation may also offer new applications, features, or functionalities through the Services, the use of which may be subject to the User’s acceptance of additional terms and conditions.
2.6 As part of its Ancillary Services, the Corporation undertakes to provide the User with reasonable technical support services, under its usual practices.
3 USER ACCOUNT
3.1 The User must create a User Account to benefit from certain functionalities of the Services. The User shall at all times remain responsible for its User Account. The User is responsible for (a) maintaining the confidentiality of the password to its User Account and (b) ensuring that all activities about its User Account comply with this Agreement.
3.2 Without prejudice to any other remedy of the Corporation under this Agreement and although the Corporation is under no obligation to monitor the User’s use of the Services, the User agrees that the Corporation reserves the right to suspend (i) any User Account or access to the Services to a User whose use of the Services contravenes with the terms and conditions of this Agreement, as well as (ii) any User Account that is subject to an urgent security issue, such suspension remaining in effect until such breach or security issue having been remedied to the complete satisfaction of the Corporation.
4 RESTRICTIONS AND RESPONSIBILITIES
4.1 The User shall refrain from, directly or indirectly:
4.1.1 reverse engineering, decompiling, disassembling, or otherwise attempting to discover any component of the Software;
4.1.2 modifying, translating, or creating derivative works based on the Software or the Application (except to the extent strictly permitted by the Corporation or authorized as part of the Services), or from any other element, modul,e or intellectual property of the Corporation made available to you as part of the Services;
4.1.3 using the Services or the Application for the benefit of a third party;
4.1.4 using or allowing the Services to be used in a manner that is abusive or contrary to the Documentation;
4.1.5 using or allowing the Services to be used improperly or in a manner that is inconsistent with the applicable laws;
4.1.6 removing any proprietary notices from the Application or the Software;
4.1.7 using the Services or any Software for service bureau purposes or to support the activities of any third party;
4.1.8 granting another person simultaneous access to their User Account; 4.1.9 reselling the Services, in whole or in part.
4.2 The User warrants (i) to use the Services only per the Documentation (to the extent such Documentation has been communicated to the User or was made reasonably accessible to the User on the Application or the Corporation’s website), this Agreement and all applicable laws and regulations then in effect, and (ii) not to publish, download or permit the transmission of any User Data on the Application for which the User does not hold sufficient rights.
4.3 The User shall be solely responsible for (i) obtaining and maintaining any Equipment needed to connect to, access, or otherwise use the Services, and for (ii) maintaining the security of such Equipment.
5 CONFIDENTIALITY AND INTELLECTUAL PROPERTY RIGHTS
5.1 Each Party (the “Receiving Party”) understands that the other Party (the “Disclosing Party”) has disclosed or may disclose commercial, technical, or financial information relating to its person or business (hereinafter referred to as “Proprietary Information”). Proprietary Information of the Corporation includes notably non-public information regarding features, functionalities, and delivery of the Services, as well as to the Software and the Application. Proprietary Information of the User includes notably User Data. The Receiving Party agrees: (i) to take reasonable precautions to protect such Proprietary Information, and (ii) not to use (except in performance of the Services or as otherwise permitted herein) or divulge to any third person any such Proprietary Information. The Disclosing Party agrees that the foregoing shall not apply for any information that the Receiving Party can document (a) is or becomes generally available to the public, or (b) was in its possession or known by the Receiving Party before receipt from the Disclosing Party, or (c) was rightfully disclosed to the Receiving Party without restriction by a third party, or (d) was independently developed without use of any Proprietary Information of the Disclosing Party or (e) is required to be disclosed by law.
5.2 The Corporation shall own and retain all rights, titles, and interests in and to (a) the Services, the Software, and the Application, as well as all improvements, enhancements, or modifications thereto, and (b) all Intellectual Property Rights related to any of the foregoing. The User acknowledges that the Corporation has no obligation to deliver and will not deliver any copies of its Software.
5.3 Subject to section 5.4, between the User and the Corporation, the User shall own exclusively all rights, titles, and interests for the User Data. The User represents and warrants that it has obtained all rights, authorizations, and consents necessary for the use and transfer of the User Data to the Application. Subject to the confidentiality provisions provided in this Agreement, the User grants an irrevocable, worldwide, non-exclusive, fully paid, royalty-free, and perpetual license to use and perform any act required in connection to the User Data, the whole to the extent required to enable the Corporation to provide the Services under this Agreement or to design promotions and develop new products or Services. The User also acknowledges that to benefit from certain features of the Services, the User may need to consent to the Corporation obtaining access to the User’s financial information. Such User financial information shared with the Corporation shall constitute “User Data” for the purposes hereof.
5.4 Notwithstanding anything to the contrary herein, the Corporation shall have the right to retain any User Data and use any information provided by the User on an aggregated on anonymized basis to compile statistics and identify trends or to train its artificial intelligence algorithms. Without limiting the scope of its privacy policy described in Section 10, the User acknowledges that the Corporation may make such information available to its third-party service providers, provided that such information does not contain any personally identifiable User Data without your consent. The Corporation exclusively owns all Intellectual Property Rights to such statistical information.
5.5 Notwithstanding anything to the contrary herein, the Corporation shall exclusively own and retain all rights, titles and interests in and to the Feedback. The User hereby assigns to the Corporation all of its rights, titles, and interests in the Feedback, including all its Intellectual Property Rights.
5.6 If the Corporation is reasonably satisfied that the Services infringe the Intellectual Property Rights of a third party, then the Corporation may, in its sole discretion and at its costs, (i) obtain the right for the User to continue to use the Services, (ii) modify the Services to stop any infringement on such third party’s rights, but without substantially limiting the functionalities of the Services, or (iii) replace the Services with a functionally equivalent feature that does not infringe such rights. If none of these options are commercially reasonable, in the Corporation’s sole opinion, then the Corporation may suspend or terminate the User’s use of the Services, in which case a refund will be issued for paid, but unused, Fees (on a pro-rata basis).
6 FEES
6.1 The User undertakes to pay all Fees during the Term. Activation and maintenance of the Services is conditional on the payment of the Fees. The Fees must be paid according to the frequency set out in the Order Form. Notwithstanding anything to the contrary herein, (i) Fees are non-refundable, (ii) the scope of the purchased Services cannot be decreased during the relevant subscription Term, and (iii) the Fees are based on Services purchased and not actual usage (except in case of over usage, in which case you acknowledge that additional Fees might be invoiced to you following applicable pricing).
6.2 The Corporation, acting reasonably, reserves the right to change or to institute new Fees on renewal of the Services, upon sixty (60) days prior written notice to the User. The Corporation also reserves the right to change its billing or payment options upon renewal, for example by limiting or removing same, upon notifying the User in writing within the same delay.
6.3 If the User believes that the Corporation has billed the Customer incorrectly, the Customer must contact the Corporation no later than sixty (60) days after the date of the first billing statement in which an error or problem appeared, to receive an adjustment or credit, as applicable. Inquiries should be directed to the Corporation’s customer support department.
6.4 Payment will be billed in the currency specified in the Order Form. Fees indicated in an Order Form do not include any taxes.
6.5 If you have chosen a pre-authorized payment method, you expressly authorize the Corporation to automatically debit the Fees according to the frequency outlined in the Order Form. An invoice will be made available to you.
6.6 If any invoiced amount is not received by the due date, in addition to any other remedy provided herein or by law, Fees may accrue late interest at the rate of 15% per year, calculable from the due date up until complete payment of the full amount due hereunder. The User shall bear all reasonable costs that the Corporation may incur to recover any unpaid amounts hereunder, except where such default is due to billing errors on the part of the Corporation.
6.7 The User shall have thirty (30) days to pay any unpaid Fees. If the User fails to pay such amounts with said delay, the Corporation may, in addition to any other remedy provided herein or by law and in its entire discretion, suspend the User’s access to the Services until such unpaid Fees are paid in full, without limiting the Corporation’s right to terminate the Agreement under section 7.
7 TERM AND TERMINATION
7.1 This Agreement shall come into force upon its acceptance by the User and shall remain in force until the expiry of the Term.
7.2 At the end of the initial term chosen in the Order Form, the Services shall be automatically renewed for additional periods of the same duration as that of the initial term, unless either Party requests termination in writing at least thirty (30) days before the end of the then-current period, meaning that this Agreement shall remain in effect until either party terminates the User’s subscription to the Services under the terms and conditions of this Agreement.
7.3 The Corporation may also terminate this Agreement at any time, for any cause, upon thirty (30) days’ written notice to the User (which may be sent by e-mail). The User shall not be entitled to terminate this Agreement during the Term, except in the event that the Corporation fails to fulfill any of its principal obligations under this Agreement.
7.4 In addition to any other remedy it might have, the Corporation may also terminate this Agreement without notice if the User materially or repeatedly breaches any of the terms and conditions of this Agreement or if the User is subject to insolvency proceedings, or for any other “serious reason” within the meaning of the law.
7.5 NOTWITHSTANDING ANYTHING TO THE CONTRARY IN THE LAW, THE CORPORATION WILL NOT REFUND ANY PORTION OF THE FEES PAID BY THE USER IF THIS AGREEMENT BE TERMINATED FOLLOWING ANY OF THE PROVISIONS OF THIS SECTION 7 (EXCEPT IN THE EVENT OF TERMINATION BY THE CORPORATION WITHOUT CAUSE OR BY THE USER FOLLOWING A DEFAULT BY THE CORPORATION, OR A CHANGE IN THE TERMS OF THIS AGREEMENT OR THE SERVICES (ACCORDING TO SECTIONS 2.2, 2.4 OR 7.3HEREOF, RESPECTIVELY), IN WHICH CASE A REFUND WILL BE ISSUED FOR PURCHASED BUT UNUSED SERVICES, ON A PRO-RATA BASIS).
7.6 Upon termination of the Services by the User, the Corporation may delete the User Data.
7.7 All dispositions of this Agreement which, by their nature, should survive termination of this Agreement, shall survive its termination, which includes, without limitation, accrued rights to payment, confidentiality obligations, warranty disclaimers, and limitations of liability provided herein.
8 WARRANTY, INTERRUPTION, AND LIMITATION OF LIABILITY
8.1 The Corporation deploys reasonable efforts consistent with prevailing industry standards to maintain the Services in a manner that minimizes errors and interruptions and executes implementation Services in a professional and workmanlike manner.
8.2 The Services may be temporarily unavailable for scheduled maintenance or for unscheduled emergency maintenance, either by the Corporation or by third-party providers, or as a result of other reasons beyond the Corporation’s reasonable control, but the Corporation will deploy reasonable efforts to provide advance notice in writing or by e-mail of any scheduled service disruption, the whole in a manner consistent with prevailing industry standards.
8.3 The Corporation warrants only that the Services will materially conform to what is described in this Agreement and the Documentation.
8.4 The User expressly acknowledges that:
8.4.1 the Corporation is not a financial planner or advisor within the meaning of applicable laws and does not provide financial planning advice through the Services. AS SUCH, THE USER IS SOLELY RESPONSIBLE FOR DECIDING WHETHER OR NOT TO IMPLEMENT ANY FINANCIAL WELLNESS SUGGESTIONS RECEIVED THROUGH THE SERVICES;
8.4.2 the User is responsible for (i) ensuring that the User Data it shares and uploads to the Application is true and up to date, and (ii) reviewing the User Data that is made available by its financial institution on the Application, it is understood that the Application’s artificial intelligence algorithms rely on such User Data to make accurate suggestions; and
8.4.3 suggestions and information that are made available through the Services are provided for informational purposes only and should not be relied upon as your sole source of information for decision-making purposes; IF YOU DECIDE TO RELY ON SUGGESTIONS AND INFORMATION PROVIDED ON THE PLATEFORM, YOU DO SO AT YOUR OWN RISK.
8.5 SUBJECT TO THE PROVISIONS OF THIS AGREEMENT AND WITHIN THE LIMITS PERMITTED BY LAW (INCLUDING CONCERNING APPLICABLE CONSUMER PROTECTION LEGISLATION), THE CORPORATION DOES NOT WARRANT THAT THE SERVICES WILL BE UNINTERRUPTED OR ERROR-FREE; NOR DOES IT MAKE ANY WARRANTY AS TO THE RESULTS THAT MAY BE OBTAINED FROM USE OF THE SERVICES OR THE INFORMATION ACCESSIBLE THROUGH THE SERVICES. THE USER ACKNOWLEDGES HAVING HAD THE CHANCE TO OBSERVE THE APPLICATION’S FEATURES AND DECLARES ITSELF SATISFIED THEREOF. EXCEPT AS EXPRESSLY OUTLINED IN THIS SECTION 8, THE CORPORATION DISCLAIMS ALL WARRANTIES, EXPRESS OR IMPLIED, INCLUDING, BUT NOT LIMITED TO, IMPLIED WARRANTIES OF MERCHANTABILITY AND FITNESS FOR A PARTICULAR PURPOSE AND NON-INFRINGEMENT.
8.6 The Services may require that the User access necessary or peripheral products or services offered by a third party. The User understands and agrees that the availability of the Services or of certain features and functions of the Services may depend on the corresponding availability of these third-party components. THE CORPORATION MAKES NO REPRESENTATIONS OR WARRANTIES CONCERNING SUCH THIRD-PARTY COMPONENTS. IN ADDITION, THE CORPORATION ASSUMES NO RESPONSIBILITY CONCERNING SUCH THIRD-PARTY COMPONENTS, THEIR ACCESSIBILITY, THEIR SECURITY, TO INFORMATION OR MATERIAL CONTAINED THEREIN AND TO THE PRODUCTS OR SERVICES OFFERED THEREIN.
9 INDEMNITY AND LIMITATION OF LIABILITY
9.1 The User agrees to indemnify the Corporation against any damages, losses, liabilities, settlements, and legal fees and costs (including legal and attorney’s fees) incurred as a result of any claim or proceeding brought against the Corporation arising out of (i) an alleged breach by the User of this Agreement, (ii) any other faulty use of the Services by the User, or (iii) any User Data uploaded or published on the Application by the User infringing any third party’s Intellectual Property Rights.
9.2 The Corporation agrees to indemnify the User against any damages, losses, liabilities, settlements, and legal fees and costs (including legal and attorney’s fees) incurred as a result of any claim or proceeding brought against the User alleging that the User’s use of the Services infringes any third-party Intellectual Property Rights, for a reason not attributable to the User.
9.3 The indemnification obligations outlined in sections 9.1 and 9.2 are subject to the following conditions : (i) the indemnified Party has given prompt notice to the indemnifying Party of the third party’s allegations in connection with the claim or proceeding and provided reasonable assistance to the indemnifying Party in the settlement of such a claim; and (ii) the indemnified Party has given the indemnifying Party sole control of the indemnification portion of such claim or proceeding, provided that (a) the indemnified Party may appoint an independent legal counsel of its choosing at its own expense, and (b) any judgment requiring the indemnified Party to admit liability, pay money or institute (or waive its right to institute) an action shall require the prior written consent of the indemnified Party, which shall not be unreasonably withheld, delayed or made conditional.
9.4 SUBJECT TO SECTION 9.5 AND APPLICABLE CONSUMER LAW, IN NO EVENT WILL EITHER PARTY BE LIABLE FOR, DIRECTLY OR INDIRECTLY: (i) LOSS OF INCOME, ECONOMIC LOSS OR LOSS OF BUSINESS OPPORTUNITIES SUFFERED BY THE OTHER PARTY; OR (ii) INDIRECT, SPECIAL OR CONSEQENTIAL DAMAGES, OR FOR PUNITIVE OR EXEMPLARY DAMAGES AND INTERESTS. THE AGGREGATE LIABILITY OF EACH
PARTY FOR ALL DAMAGES ARISING OUT OF OR RELATED TO THIS AGREEMENT, DIRECTLY OR INDIRECTLY, IS LIMITED TO THE FEES PAID BY THE USER ACCORDING TO THIS AGREEMENT IN THE TWELVE (12) MONTH PERIOD PRECEDING THE EVENT GIVING RISE TO THIS LIABILITY.
9.5 Nothing in this Agreement shall exclude or limit the liability of either party in the following cases : (i) willful misconduct or gross negligence; (ii) bodily or moral injury; (iii) fraud or wilfully false representations; (iv) any obligation arising out of sections 9.1 or 9.2; (v) any infringement or violation of the Intellectual Property Rights of the other Party; (vi) any obligation to pay the Fees hereunder; (vii) any violation of sections 4.1 or 4.2; or (vii) any dispute for which liability cannot be excluded or limited under applicable law.
10 PERSONAL INFORMATION
10.1 The Corporation agrees to use, communicate, and protect the personal information collected as part of the Services under the Privacy Policy published on the Application and its Web site. The Corporation reserves the right to update the Privacy Policy from time to time to comply with best practices and privacy legal and regulatory requirements.
11 MISCELLANEOUS
11.1 If any provision of this Agreement is found to be unenforceable or invalid, that provision will be limited or eliminated to the minimum extent necessary so that this Agreement otherwise remains in full force and effect and enforceable.
11.2 In the event of any conflict or inconsistency among the following documents, the order of precedence will be: (i) the Agreement, and (ii) the Order Form.
11.3 This Agreement is not assignable, transferable, or sublicensable by the User except with the Corporation’s prior written consent.
11.4 All waivers and modifications to this Agreement must be made in writing duly signed by both parties, except as otherwise provided herein.
11.5 No agency, partnership, joint venture, or employment is created as a result of this Agreement and the User does not have any authority of any kind to bind the Corporation in any respect whatsoever.
11.6 All notices under this Agreement will be in writing and will be deemed to have been duly given (i) when received if personally delivered; (ii) when receipt is electronically confirmed, if transmitted or e-mail (or failing that, the day after which the e-mail is sent); (iii) the day after it is sent if sent for next day delivery by recognized overnight delivery service; and (iv) upon receipt, if sent by certified or registered mail, return receipt requested. All notices given on the Application under this Agreement will be deemed to have been duly given when sent.
11.7 This Agreement shall be governed by the laws of the province of Quebec without regard to its conflict of law’s provisions. The courts in the province of Quebec, judicial district of Longueuil, will have exclusive jurisdiction to adjudicate any dispute arising out of this Agreement.