Updated:   August 2019

These Terms (together with the documents referred to in it) describe how you may make use of the services which are made available to you via our web app and mobile app (together, the “Platform”) (the “Services”), as well as all information, reports and data made available to you (“Service Data”) about your care agency clients (“Clients”) and care workers acting on your behalf (“Care Workers”).

Please read these Terms carefully before you start to use the Services.

These Terms refer to the following additional documents, which also apply to your use of the Services:

• Our Privacy Policy, which sets out the terms on which we process any personal data we collect from you, or that you provide to us and information about the cookies on the Platform.
• Our Acceptable Use Policy, which sets out the permitted uses and prohibited uses of our Services, including any material and data transmitted using the Services.

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1. Introduction

Birdie Care Services Limited (“Birdie”, “us”, “our” or “we”) is the provider of the Services and operator of the Platform. We are registered in England and Wales under company number 10863579 and have our registered office at St James House, 13 Kensington Square, London, W8 5HD. You are the care agency (“Care Agency”) whose details are set out on the Birdie online order form by which you agree to subscribe to the Services (“Order Form”). By submitting the Order Form, you agree to these Terms.

2. Your Order

The Order Form sets out the type of Services which you wish to access and purchase for your Care Agency, the number of users or Clients, optional features, usage based limits, as well as the price for all Services you have chosen (“Subscription Fees”). The Order Form also sets out the period of your subscription for the Services (“Subscription Term”) and any renewal periods. 

3. User account

Any user in your Care Agency (whether an employee or not), any Care Worker appointed by you or any other person to whom you grant access to our Services will be an “Authorised User” and will be issued with login credentials to access the Services. You are responsible for any use of our Services with your account details, which includes all user passwords generated for each Authorised User, and for protecting your account details from unauthorised use. You are also responsible for the security of any computer or mobile device from which you sign in to your account or from which Authorised Users sign in to their accounts. You will be responsible for setting the access rights for each of your Authorised Users. You shall ensure that each Authorised User shall keep his or her account credentials confidential. Detailed instructions on how to onboard your staff, your care workers and any other Authorised Users can be viewed here and Birdie will provide training as well as a dedicated account manager to support your use of the Services. 

4. Services

A full description of the Services you have chosen to purchase from Birdie is set out on the Birdie website at www.birdie.care

We undertake that the Services will be performed in a professional manner in accordance with industry standards using reasonable skill and care, and in conformance with the description of the Services on our website. This undertaking shall not apply to the extent of any non-conformance which is caused by your use of the Services contrary to our instructions or these Terms, or any alteration or modification made to the Services or the software used in the provision of the Services by a third party who is not authorised by us. You understand and agree that we have no obligation to modify software to support your use of the Services.

From time to time, we may introduce new services, features or functionality to the Services. These Terms will apply to such new services, features or functionality, unless they come with separate or additional terms, in which case you will be required to agree to such separate or additional terms before being permitted to use the new services, features or functionality.

5. Accessing the Services

Whilst we will make reasonable efforts to ensure the Services are operational 24 hours a day, 7 days a week, with the Platform available at least 99.5% of the time (measured over each month), we do not guarantee that the Services will always be available or be uninterrupted. In particular, but without limitation:

• Maintenance Services: The Services will not be available to you when we carry out maintenance services. We will endeavour to carry out these services outside of normal business hours (being 9:00am to 5:00pm UK time) and to give you at least three hours’ notice in writing (via email where possible); however you acknowledge that this may not be possible in cases of urgency.
• Communication networks: The Services may be subject to limitations, delays and other problems inherent in the use of communication networks and facilities. We will not be liable to you if the Services are unavailable at any time, or for any period due to an event or cause outside of our control.

We reserve the right to suspend your access to or use of the Services without notice in the event you breach these Terms or if we reasonably suspect that you have breached these Terms.

6. Using the Services

You will:

• Provide us with all necessary cooperation in relation to this Agreement and all necessary access to information that we require to deliver the Services;
• Comply with all applicable laws and regulations with respect to your activities under this Agreement, in particular the regulations stipulated by the Care Quality Commission;
• Ensure that the Authorised Users’ use the Services and Service Data in accordance with the these Terms, and you shall be responsible for any Authorised User’s breach of this Agreement;
• Obtain and maintain all necessary licences, consents and permissions necessary for you, your contractors and agents to perform their obligations and exercise their rights under this Agreement, including, without limitation, to use the Services;
• Be solely responsible for the management of the health and wellbeing of your clients, including the actions taken by Care Workers and assessments and/or recommendations or the raising of alerts  made by you, Care Workers or your sub-contractors or agents; 
• Be responsible for the correct administration of medication, in the correct dosages, in accordance with the care plan of your Clients;
• Where the health of a Client is of concern, to use your judgment to raise your concerns to the appropriate parties and not rely solely on the ‘alert’ functionality in the Platform;
• Ensure that your network and systems comply with the relevant specifications provided by us from time to time;
• Be solely responsible for procuring and maintaining your network connections and telecommunications links from your systems to our data centres, and for all problems, conditions, delays, delivery failures and all other loss or damage arising from or relating to your network connections or telecommunications links or caused by the internet.

The licence granted to you to make use of the Services and Service Data, does not permit you to do, and you shall not do nor permit any third party to do, any of the following:

• Embed our Services or Service Data into any product of yours or any third party (unless we have agreed with you to do this as part of a bespoke software development project);
• Make available through automated or manual means any part of the Services or the Service Data, by way of crawling, scraping, spidering or otherwise;
• Copy or access all or any part of the Services or the Service Data other than via the interface(s) provided to you by us; or
• Circumvent or attempt to override any security features we have installed around the Services or the Service Data.

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You further agree to comply with the Acceptable Use Policy with regards to your use of the Services and Service Data, including any material and data you transmit using the Services. This Acceptable Use Policy is hereby incorporated into these Terms.

A breach of the Acceptable Use Policy will constitute a breach of these Terms, and may result in termination or suspension of your account in accordance with these Terms.

7. Payment

You agree to pay us the Subscription Fees as set out on the Order Form (which do not include VAT). You will provide us with valid, up-to-date and complete payment details to enable us to process your payment. You authorise us to bill your payment card or bank account for the Subscription Fees monthly or annually (as stated on the Order Form) in advance and for additional purchases of subscriptions during the Subscription Term. 

We may increase the Subscription Fees from time to time but we will communicate any pricing changes to you with reasonable notice of no less than one month. If you do not agree to the increases, you may terminate your agreement with one month’s notice.

8. Rights we grant you

During the Subscription Term, we will provide you access to use the Services as described in the Order Form. Your Subscription Term is stated on the Order Form and (if applicable) will renew automatically for further periods as stated on the Order Form. To prevent automatic renewal of the subscription, you must notify us as set out in clause 14 below.

You promise and agree that you will only make use of the Services and Service Data within the scope of the terms and conditions set out in these Terms, and that you will not redistribute or transfer the Services or Service Data, or any part of them except that you may share Patient Data of your Clients on medical care grounds or public health grounds as set out in Article 9 of the General Data Protection Regulation (EU) 2016/679 or such other lawful basis as may be determined by you.

You acknowledge that all intellectual property rights in the Services, the Service Data and the Platform anywhere in the world belong to us or our licensors, and that you have no rights in or to the Services, Service Data or the Platform other than as set out in clauses 9 and 10 below. 

9. Data and Rights you give us

We claim no intellectual property rights in and to any material you provide or otherwise transmit to us via the Service. All data and information that you collect and input into the Platform shall belong to you or your Clients, unless Birdie has a separate agreement with a Client giving us separate rights to the same information. 

However, to enable your use of the Services, we do need to collect data and information about your clients, including personal data and sensitive medical data (“Patient Data”). As such, we require, and you hereby grant us, a worldwide, non-exclusive, royalty free licence to store, use, reproduce, display and transmit the Patient Data any other materials transmitted via the Service to the extent necessary to enable your use of the Services, including monitoring services. This licence shall remain in effect for the duration of the Subscription Term and any renewal period.

In addition to the rights granted to us above, we also require, and you hereby grant to us, a licence to store, use, reproduce, display and transmit the Patient Data and any other materials transmitted via the Service in anonymised format for analytical purposes and to improve our Services. This licence shall remain in effect unless and until you email us at support@birdie.care and expressly ask us to delete such data from our database. For the avoidance of doubt, this licence will not end upon termination of these Terms.

10. Data Protection and Privacy

We will use Patient Data only in order to provide the Services to you and only as permitted by applicable law, these Terms, and our Privacy Policy. 

For the purposes of providing the Services, we may collect, process and store certain data concerning Authorised Users, including personal data, for which we will be the data controller. 

To the extent that we process any Patient Data on your behalf when providing the Services, you will be the data controller and we will be a data processor. 

To the extent that your clients engage Birdie to provide services directly to them, we will enter into a separate agreement with such clients and will act as controller of any personal data we have collected or will collect (either directly from them or through you) about them. 

In any case where either you or Birdie are processing Patient Data on behalf of each other, each of us agrees:

• that we ensure that we are each entitled to transfer the Patient Data to the other party so that such other party may lawfully use, process and transfer the Patient Data in accordance with these Terms on behalf of the first party;
• that we will comply with our respective obligations imposed on us by the Data Protection Laws and will not do or fail to do anything which causes the other to breach the Data Protection Laws,
• that the Patient Data may be transferred or stored outside the EEA in order to carry out the Services provided such transfer is in compliance with the Data Protection Laws;
• that we will ensure that our clients and any other relevant third parties have been informed of, and have given their explicit consent to, such use, processing, and transfer as required by the Data Protection Laws.
• that we will implement adequate technical and organisational measures to protect against the unauthorised loss, disclosure or destruction of or damage to such personal data; and process such Patient Data solely in accordance with each other’s instructions.
• that any sub-processors we may appoint to process Patient Data on our behalf will have entered into terms for the processing of data which are substantially the same as the terms set out in this clause 10; and
• that we will notify each other if either of us receives (i) a request from a data subject to access that data subject’s personal data or (ii) a complaint or request relating to the Data Protection Laws, and provide prompt assistance to each other as requested or required.  

For the purposes of this Agreement, Data Protection Laws shall mean the Data Protection Act 1998, and from 25 May 2018, the General Data Protection Regulation (EU) 2016/679, and any applicable replacement laws or regulations as may be in force, from time to time, and “personal data”, “data subject”, “data controller”, “data processor” and “process” shall have the meaning given to them by the Data Protection Laws.

11. Security

Birdie will implement reasonable technical and physical safeguards to protect your confidential information and data, including Patient Data and personal data as defined in clause 10. You understand that the operation of the Services, including Patient Data may be unencrypted and involve (a) transmissions over various networks; (b) changes to conform and adapt to technical requirements of connecting networks or devices and (c) transmission to our third party vendors and hosting partners to provide the necessary hardware, software, networking, storage, and related technology required to operate and maintain the Services. Accordingly, you acknowledge that you bear sole responsibility for adequate security, protection and backup of your Patient Data. Birdie does not guarantee that the Service is or will remain secure or that access to the Service will be uninterrupted

12. Limitation of Liability

You agree to the following limitations on our liability to each other:

• Exclusion of certain losses: We shall not be liable to each other for any loss of profits, business, anticipated savings, goodwill or business opportunity, business interruption, loss or corruption of data or information, or for any special, indirect or consequential loss or damage, howsoever arising under these Terms; and
• Cap on liability: Our maximum aggregate liability to each other in contract, tort (including negligence or breach of statutory duty), misrepresentation, restitution or otherwise, arising in connection with the performance or contemplated performance of these Terms shall be limited to the higher of either: i) the total amount paid to us in the 12 month period preceding the date on which the claim arose; or ii) £100.

Further, due to the nature of the Services, we do not take responsibility for any damage or loss caused by errors or omissions in any content or omissions in any information (including medication schedules) or instructions provided by you to us in connection with the Services, recommendations on the health or wellbeing of your Clients (including the recording of alerts), assessments made by you or your Care Workers on the health, wellbeing or safety of your Clients or any action taken by us (or not taken by us) at your direction.

Nothing in these Terms shall exclude either party’s liability for death or personal injury caused by negligence, fraud or fraudulent misrepresentation or any other liability that cannot be excluded or limited by law.

All warranties, conditions, representations or other terms implied by statute or common law in relation to the Services, the Service Data and the Platform provided by us are excluded to the fullest extent permitted by law.

13. Indemnity

Subject to the cap on liability in clause 12 above, you will defend, indemnify and hold harmless Birdie against claims, actions, proceedings, losses, damages, expenses and costs (including without limitation court costs and reasonable legal fees) arising out of or in connection with your use of the Services, Service Data or Platform in breach of these Terms or other agreements referred to in these Terms (including, but not limited to, the Acceptable Use Policy).

Subject to the cap on liability in clause 12 above, Birdie will defend, indemnify and hold you harmless against claims, actions, proceedings, losses, damages and costs arising out of any claim made against you by a third party alleging infringement of their intellectual property rights through or in connection with your use of the Services, Documentation, Service Data or Platform as long as:

• You give us prompt notice of any claim;
• You provide us reasonable co-operation in the defence and settlement of such claim, at our expense; and
• You give us sole authority to defend or settle the claim.

In the defence or settlement of any such claim, we may procure the right for you to continue using the Services, Service Data and/or the Documentation, replace or modify the Services and/or Documents so that they become non-infringing or terminate this agreement on two days’ notice to you without any additional liability or obligation to pay you damages or other additional costs.

This clause 13 sets out your sole and exclusive rights and remedies, and our entire obligations and liability, for infringement of any third party intellectual property rights.

14. Termination

You may terminate these Terms at any time via email to support@birdie.care (as applicable) and ceasing all use of the Services and Service Data. You will be charged immediately for the remaining length of your contract but no further payments will be required.

We may terminate these Terms with you immediately, without notice, in the event you commit a material or persistent breach of these Terms (including the Acceptable Use Policy), the Services are discontinued, we lose the right to provide you with the Services, or where the provision of the Services becomes unlawful.

Upon termination:

• all rights granted to you under these Terms, including the right of access in clause 8, shall cease;
• you must cease all activities authorised by these Terms, including use of the Services Service Data;
• all fees payable to us under these Terms shall become due and shall be billed immediately, despite any other provision; and
• you must immediately uninstall, delete or remove from all computer equipment in your possession or control, and destroy or return to us all copies of, any software used in the provision of the Services.

If you request access to copies of Patient Data supplied by you to the Platform, we will provide this to you in electronic form within 5 working days of your request. 

15. Confidentiality

You and Birdie agree that each shall maintain the confidentiality of and shall not disclose to any third party all confidential documents and information of the other party, its respective vendors, licensors and other third parties, that such party may furnish (the “Disclosing Party”) to the other party or which the Disclosing Party makes available to the other party (the “Receiving Party”) and that the Disclosing Party treats as confidential, including without limitation, business information, client lists, pricing of products or services, technology, agreements, business plans, software, technical documentation, and other information which is not publicly available.

The Receiving Party agrees to use all such information solely for the performance of its obligations under this Agreement. The parties’ obligations under this provision shall survive termination of this Agreement, but such obligations shall not include information that is or becomes part of the public domain through no act or omission of the Receiving Party or breach by the Receiving Party of this Agreement. Any records of Patient Data held by either you or Birdie will be held in accordance with the Records Management Code of Practice for Health and Social Care 2016 published by the Information Governance Alliance. 

16. Other important terms

Assignment and other dealings: You may not assign, transfer, sub-licence or deal in any other manner with any or all of your rights under these Terms, without our prior written consent.

Waiver: A waiver of any right or remedy under these Terms or by law is only effective if given in writing and shall not be deemed a waiver of any subsequent breach or default. A failure or delay by a party to exercise any right or remedy provided under these Terms or by law shall not constitute a waiver of that or any other right or remedy, nor shall it prevent or restrict any further exercise of that or any other right or remedy.

Severance: If any provision or part-provision of these Terms is or becomes invalid, illegal or unenforceable, it shall be deemed modified to the minimum extent necessary to make it valid, legal and enforceable. If such modification is not possible, the relevant provision or part-provision shall be deemed deleted. Any such modification to or deletion of a provision or part-provision shall not affect the validity and enforceability of the rest of these Terms.

Relationship: Nothing in these Terms is intended to, or shall be deemed to, establish any partnership or joint venture between any of the parties or constitute any party the agent of another party.

Third Party Rights: No one other than a party to these Terms, their successors and permitted assignees, shall have any right to enforce any of its terms.

Entire Agreement: these Terms and all documents referred to in them, constitute the entire agreement between the parties and supersedes and extinguishes all previous agreements, promises, assurances, warranties, representations and understandings between them, whether written or oral, relating to its subject matter.

Jurisdiction/Governing Law: These Terms, their subject matter and its formation (and any non-contractual disputes or claims) are governed by English law. We both agree to the exclusive jurisdiction of the courts of England and Wales.

17. Contact us

To contact us, or if you are experiencing problems with the Services, please email support@birdie.care