Terms and Conditions

A. Terms and conditions for partners (domiciliary care agencies)

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.

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.

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.

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.

Services

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

Accessing the Service

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.

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 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 made by you, Care Workers or your sub-contractors or agents;
  • 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.

.

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.

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 card details to enable us to process your payment. You authorise us to bill your payment card 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.

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.

 

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 [ insert email ] 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.

 

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.

 

[We will keep Patient Data – Health and Social Care Act 2008 – duration of record keeping]

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

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, instructions provided by you to us in connection with the Services, recommendations on the health or wellbeing of your Clients, 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.

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.

Termination

You may terminate these Terms at any time via email to [insert email] (as applicable) and ceasing all use of the Services and Service Data. You will be charged for the current month but no further payments will be

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.

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.

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.

Contact Us

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

 

 B. Terms and conditions for families

Welcome to the Birdie App (the “App”) brought to You by Birdie Care Services Limited, with its registered office at Martlet House, E1 Yeoman Gate, Yeoman Way, Worthing, West Sussex, BN13 3QZ and Company Number 10863579 (“Birdie”) (“Us”, “We” or “Our”). In these App Terms of Use (“Terms of Use”), “You” and “Your” means You the person using the App.

These Terms of Use, together with Our Privacy Policy, http://www.birdie.care/privacy-policy set out how You may use the Birdie services (the “Services), the App and any of the third party services made accessible through the App (the “Additional Services”).

We may vary these Terms of Use from time to time. However, if We do, We will notify You of any variations that are going to be made by Us reasonably in advance of the date on which such variations take effect. We will also invite You to accept Our new Terms of Use. If You do not accept such variations then You will no longer be able to access or use the App.

 

Introduction

Birdie is a service provided to family members to monitor the health and wellbeing of an elderly relative (“Older Adult”). The Older Adult may be receiving home care services (“Home Care”) from professional care givers (“Carer”) who regularly visit the Older Adult in their home. Birdie allows a family member to sign up for Birdie’s services via the App and add other users, e.g. family members, Carers, cleaners and any other individuals who may have responsibility for monitoring the Older Adult’s health and wellbeing. This group of people is called “the Flock”. The family member who signs up first to the App is called “the Owl”.

The Owl is able to define the appropriate levels of access and rights of each member of the Flock on the App. These people will be referred to as Robins, Starlings, Eagles and any other name as may be set out in the App. Their respective user rights will be set out in the App. Only the Owl has full admin rights and only the Owl is able to add or remove users.

The App will allow the Flock to:

Monitor the health and wellbeing of the Older Adult through the use of data recorded by the Flock in the App and optional sensors and cameras placed in the Older Adult’s home.

Keep in touch with other members of the Flock through the messaging service on the App in order to coordinate support for the Older Adult.

Access and book Additional Services for the Older Adult with third party service providers, such as transportation, on call doctors and meal deliveries.

Birdie licenses use of the App to You on the basis of these Terms of Use and subject to any rules or policies applied by any app store provider or operator from whose site you downloaded the App (“App Store Rules”).

From time to time, updates to the App may be issued through your app store provider. Depending on the update, You may not be able to use the App until you have downloaded the latest version and accepted any new terms.

You warrant that You are the owner of the device to which You have downloaded the App, or that You have obtained permission from the owner of that device to download the App. You accept responsibility in accordance with these Terms of Use for the use of the App on any device, whether or not that device is owned by You.

By downloading or otherwise accessing the App, You agree to be bound by these Terms of Use together with the terms and conditions contained in Birdie’s Privacy Policy. If You do not agree with these Terms of Use, you should stop using the App immediately and contact Birdie using the contact details in Clause 13.1.

By using the App, you consent to us collecting and using technical information about the devices used to access the App and any related software, hardware and/or peripherals to improve our products and to provide any Services to You.

Birdie services

In order to register to use the Birdie services, the Owl will need to set up an account either on the Birdie website or through the App.

The Owl will be responsible for providing the necessary permissions of the Older Adult and passing our consent protocols, which may include uploading a copy of a Power of Attorney for the Older Adult, uploading a copy of a valid Court of Protection order, or uploading a voice recording/signature of the Older Adult to confirm their consent for their personal information to be processed by Birdie and shared amongst the Flock.

The Owl will be able to invite other users to the Flock by providing an email address or mobile telephone number in the App and selecting the level of access of that user. That user will receive an email or text message with a unique access token, and will be able to create an account on the App, giving them access to the Older Adult’s profile.

The Owl represents and warrants to Us that the details that You provide to Us on the Older Adult are accurate and up to date and that you have the appropriate permission and consents to share information and data on the Older Adult, including medical information and details of the Older Adult’s care plan. All users in the Flock represent and warrant to Us that the details that You provide to Us on yourself are accurate and up to date.

If You, as the Owl, sign up for a Birdie subscription package that includes sensors and cameras (“Monitoring Equipment”), We will share your contact details with our third party equipment suppliers who will contact You to arrange a suitable time to install the Monitoring Equipment in the Older Adult’s home.

As the Owl, You are responsible for sharing access to the Older Adult’s profile with the Flock, the Carers or any agency that employs the Carers (“Care Agency”) by inviting them to join the Flock. The tasks and specific services that the Flock carry out are not affected by Your use of the App, and should be agreed separately. Birdie will provide remote training for Carers on how to use the Services, and will provide Care Agencies with a desktop application with which to access the Birdie system.

If any disputes or disagreements arise between You, the Older Adult, the Flock, Carers or the Care Agency relating to the care of the Older Adult or payments made or due from You, You are responsible for resolving any such disputes directly with each other. Birdie shall not be a party to any such dispute and Birdie is not obliged to take any action toward resolving the dispute.

Additional services

Depending on the level of user access granted to You by the Owl, You may request Additional Services available through the App by placing an order through the App (“Booking”).

Additional Services may be provided by a third party (“Service Provider”). In such cases, Birdie will act as an agent of the third party to facilitate the placing of the order and the collection of payment from the Owl but the Service Provider will be responsible for fulfilling the order to You and Birdie does not control such Additional Services provided (or not provided) or the quality or timing of those services and disclaims all liability for such. As the Owl, You may be asked to agree to separate terms and conditions for some Additional Services with the Service Provider but we will inform You of this and provide You with the relevant documents, if necessary.

The Owl is responsible for making payment for Additional Services booked by members of the Flock. As the Owl, You can pay for Bookings by using credit or debit cards and any other methods as indicated on the App from time to time. Depending on Your payment method, You may be directed to a payment gateway e.g. Stripe and review the total amount payable for Your Booking before clicking ‘Order with obligation to pay’ to authorise the payment and place Your Booking. You confirm to Us that the payment card You use is Yours or that You have been specifically authorised to use it to purchase Your Booking. By a member of the Flock placing a Booking, You as the Owl, authorise Us to charge Your payment card on completion of the Additional Services for the full purchase price and we are entitled to rely on placing a Booking as an instruction to Us to take Your payment.

Your Booking won’t be approved and a contract of sale won’t be formed between Us, or between You and the Service Provider, until we have reviewed Your Booking, verified your payment method and provided You with confirmation of Your Booking by phone, chat, email or in-app message.

If You wish to make a change to Your Booking please contact Us. We will let You know if the change is possible. If it is possible we will let You know about any changes to the price of Your Booking, the timing of supply or anything else which would be necessary as a result of Your requested change and ask You to confirm whether You wish to go ahead with the change. If we cannot make the change or the consequences of making the change are unacceptable to You, You may want to cancel the Booking.

We may need to change Your Booking:

if the information You have provided Us in the Booking is not correct or incomplete;

if we are no longer available to fulfil Your Booking; and

to reflect changes in relevant laws and regulatory requirements; but in any event we will notify You and obtain your approval before any changes (including the price) to Your Booking are made. If You are unhappy with these changes, You may then contact Us before the changes take effect and receive a refund for any Additional Services not provided.

Without affecting Your general rights as a consumer, if the Additional Services were provided with reasonable skill and care and in accordance with the agreed terms of the Booking then we will generally be unable to provide any refund for Additional Services provided.

Fees and payment

The App has a number of different subscription packages (each a “Subscription Package”) for different levels of service with accompanying charges (“Subscription Fee”), including promotional deals, which may vary from time to time. As the Owl, You will be asked to select a Subscription Package when you register for the Services. There may be up-front charges for certain Monitoring Equipment (“Activation Charges”) depending on the type of Subscription Package you select.

As the Owl, You shall pay any Subscription Fee that applies to Your Subscription Package, the Activation Charges (if applicable) as well as fees and charges for any Additional Services.

As the Owl, You may change your Subscription Package at any time provided you give Us one month’s notice through the App, and provided that We are able to collect any Monitoring Equipment in accordance with clause 11.3 below.

We may change the Subscription Fee and any other charges for the Services at any time as long as we give you at least two months’ notice. You may cancel the Services and the use of the App without any notice or penalty if we do this.

Payment of the Subscription Fee shall be made by direct debit in the manner indicated on the App from time to time.

Equipment

If you choose to have Monitoring Equipment installed in the home of the Older Adult to monitor the Older Adult’s wellbeing through the App, we will provide the sensors, cameras or bracelets as applicable to the Subscription Package You have selected.

We may share Your contact details with our third-party device suppliers who will either contact You to arrange a suitable time to install the Monitoring Equipment or provide you with instructions on self-installation.

The Monitoring Equipment shall remain Our property and we, through our third party suppliers, shall be responsible for the maintenance of the Monitoring Equipment.

The data gathered from the sensors shall be collected by us or our third party suppliers to provide more detailed information on the Older Adult’s wellbeing and shall be accessible by You on the App for as long as you maintain the Subscription Package that includes sensors and for a period of six months after termination of the services.

If you choose to have cameras installed in the home of the Older Adult you will have the ability to view the live camera feeds in real time on the App. We will not record or monitor any camera feeds.

As the Owl, You will be responsible for ensuring that the Monitoring Equipment remains in the home of the Older Adult and in the place where it has been installed by Us, and for informing us if the Monitoring Equipment becomes damaged or you think it is faulty.

Access to the app and licence grant

By using the App you confirm to us that you are 18 years old or over.

In return for You agreeing to comply with these Terms of Use, Our Privacy Policy and any applicable App Store Rules, we grant to You a licence to use the App on each device (e.g. phone, tablet) You use to download the App. If you are using the free version of the App, you will only be granted a licence to use it on one device at any one time.

If You breach any provision of these Terms of Use, this licence will immediately terminate and You must immediately cease use of the App.

You are responsible for obtaining (at Your own cost) all necessary devices and telecommunications services required to access the App. You are also responsible for ensuring that no person uses Your Device to access the App without Your permission. We will be entitled to assume that you will not allow anyone else to access the App using Your Device.

Apart from User Content (as defined in Clause 12.2 below), all images, text, icons and other content on the App (“Content”), as well as the arrangement of the Content on the App, is protected by copyright and other intellectual property rights Except as provided in these Terms of Use, or otherwise in writing by Birdie, you are not granted any licence to use the Content or its Arrangement. Nothing in these Terms of Use grants You a licence to use any Birdie trade marks or the trade marks or any third parties on the App.

Unless You have entered into a separate written agreement with Us, You shall not copy republish, frame, link to, download, transmit, modify, adapt, rent, lease, loan, sell, assign, distribute, license or sublicense the App or any of the Content. No copyright and/or other intellectual property notices or watermarks on any Content shall be deleted or modified.

You shall not disassemble, decompile, reverse-engineer or create derivative works based on the whole or any part of the App except to the extent allowed by law.

If You breach any of these Terms of Use, Your permission to use the App automatically terminates. In addition, Birdie shall have the right to block, restrict, disable, suspend or terminate Your access to all or any part of the App or its Content at any time in its discretion without liability to You.

Your access to our services

While Birdie endeavours to ensure that the App is normally available 24 hours a day, Birdie shall not be liable if for any reason the App is unavailable at any time or for any period.

Access to the App may be suspended temporarily and without notice in the case of system failure, maintenance or repair or for reasons beyond Birdie’s control.

When you register with Us and choose a password to protect your secure account, You are responsible for maintaining the confidentiality of Your password. If You become aware of any unauthorised use of Your account, You must notify Us and You should change Your password immediately. You are solely responsible for all activities that occur under Your password and/or account. You shall not permit anyone else to use Your account

You must:

not provide false personal information when creating and maintaining Your account profile on the App.

not use the App in any improper or unlawful manner or in breach of any legislation or licence that applies to You;

not transmit any material that is defamatory, offensive or otherwise objectionable in relation to Your use of the App; and

not use the App in a way that could damage, disable, overburden, impair or compromise Our systems or security or interfere with other users.

You agree to comply with all reasonable instructions that We may give You regarding Your use of the App.

Disclaimer and limitation of liability

Nothing in these Terms of Use limits or excludes our liability for anything that cannot be excluded by applicable law.

Birdie is not responsible for the selection of Carers or for the selection or performance of any tasks assigned to Carers.

Birdie is not a provider of personal care or any other regulated activities listed in Schedule 1 of the Health and Social Care Act 2008 (Regulated Activities) Regulations 2014

Birdie is not responsible for any failures due to errors made by You, the Carer or other members of the Flock in the input of data or the failure to complete a care report, the blocking or moving of sensors or cameras, failure to follow instructions on use or self-installation of any Monitoring Equipment, sensors damaged by anyone other than Birdie or Our agents, dead batteries in Your device used to access the App, internet unreliability, or power outages. It is Your responsibility to maintain a separate channel of care and communication with the Older Adult to guarantee safety, security, health, happiness, and well-being. Birdie is just one component in a comprehensive caring network among the Older Adult, their families and professional caregivers.

Birdie may use the data gathered from the sensors and the reports of users to detect abnormal patterns in the health and wellbeing of the Older Adult and may notify the Owl as We deem appropriate but Birdie is not responsible for missing signs, the giving of false alarms or false positives. In no way is any notification from Birdie to be interpreted as a medical diagnosis.

You acknowledge that the App has not been developed to meet Your individual requirements, and that it is therefore Your responsibility to ensure that the facilities and functions of the App as described meet Your requirements.

We only supply the App for domestic and private use. You agree not to use the App for any commercial, business or resale purposes (save for the use of the App by professional Carers who are engaged by the Owl or Older Adult), and We have no liability to You for any loss of profit, loss of business, business interruption, or loss of business opportunity.

We reserve the right to suspend or cease providing any services relating to the App with or without notice, and shall have no liability or responsibility to You in any manner whatsoever if we choose to do so.

Use of the App is at your own risk. The App is provided on an “as is” basis. To the maximum extent permitted by law:

Birdie disclaims all liability whatsoever, whether arising in contract, tort (including negligence) or otherwise in relation to the App or for the Additional Services; and

all implied warranties, terms and conditions relating to the App and Additional Services (whether implied by statue, common law or otherwise), including (without limitation) any warranty, term or condition as to accuracy, completeness, satisfactory quality, performance, fitness for purpose or any special purpose, availability, non-infringement, information accuracy, interoperability, quiet enjoyment and title are, as between future and you, hereby excluded. In particular, but without prejudice to the foregoing, we accept no responsibility for any technical failure of the internet and/or the App; or any damage or injury to Older Adults or their property as a result of or relating to their or Your use of the App. Your statutory rights are not affected.

Our maximum aggregate liability under or in connection with these Terms of Use (including your use of the Services or Additional Services) whether in contract, tort (including negligence) or otherwise, shall in all circumstances be limited to an aggregate of an annual Subscription Fee.

Subject to Clause 8.1, You agree that neither We nor the applicable app store provider shall be liable for:

Any direct loss, claim or damage (save for as set out in these Terms of Use);

Any indirect loss, claim or damage, or any punitive, special, incidental or consequential damages of any kind (including corruption of data); or

Any loss of profit (whether direct or indirect), in each case whether based in contract, tort (including negligence), strict liability, or otherwise, which arises out of or is in any way connected with:

Any use of this App or its contents;

Any failure or delay in the use of any component of the App or any service including any unavailability of the App or the Services irrespective of duration of any period of unavailability; or

Any use of or reliance upon any feature, content, material, information, software, products, services and related graphics obtained through the App in all cases even if We have been forewarned of the possibility of such loss or damage.

Without limiting the effect of Clause 8.1, due to the inherent risks of using the internet, We cannot be liable for any damage to, or viruses that may infect, Your device or any other property when You are using the App. The downloading or other acquisition of any features, content, materials or information made available via the App is done at Your own discretion and risk and with Your agreement that You will be solely responsible for any damage to Your device or loss of data that results from the downloading or acquisition of any such materials.

You acknowledge and agree the applicable app store provider has no obligation whatsoever to provide any maintenance and/or support services with respect to the App. Any maintenance and/or support queries should be addressed to Us using the contact details set out in Clause 13.1. We will respond to customer support enquiries within three (3) working days, and within 24 hours to any concerns identified as critical by an app store provider.

We, and not the app store provider, shall be responsible to You for any failure of the App to comply with any product warranties relating to the App, whether expressed or implied by law, and which We are not permitted to exclude or disclaim because of applicable law.

We, and not the applicable app store provider, will be solely responsible for addressing any claims that You or any third party may have with respect to the App or Your possession or use of the App including, but not limited to any:

product liability claim;

intellectual property rights claim brought against You by a third party;

claim that the App fails to conform to any applicable legal or regulatory requirements; and

claim arising under consumer protection or similar legislation.

Any claim brought against Birdie in relation to the use of the App shall be brought by the Owl and You agree that, subject to clause 8.1, We shall not be liable to the Older Adult or any other members of a Flock except through a claim brought by the Owl.

Indemnity

You shall indemnify Birdie against any loss, damages, costs or expenses which are awarded against or incurred by Birdie as a result of any claim or threatened claim (including any claim or threatened claim by a third party) arising out of or related to:

Any breach by You of any of these Terms of Use or applicable law;

Your misuse of the App and/or the Services;

Any messages or other content you post on or transmit via the App;

Your infringement of intellectual property rights;

Your failure to provide accurate, up to date information; and

Your interactions with other users of the App.

Third party websites

The App may contain content from and links to various websites. These Terms of Use will not apply to Your use of any website that You access via the App. Your use of any such website may be subject to additional terms and conditions, which We suggest You read carefully before proceeding.

Third party websites are in no way approved, vetted, checked or endorsed by Us or by the applicable app store provider and You agree that neither We nor any app store provider shall be responsible or in any way liable for the content, accuracy, compliance with relevant laws or accessibility of any information, data, advice or statements or for the quality of any products or services available on such websites. Links do not necessarily imply that We are or that the App is affiliated to or associated with such third party websites. If You decide to visit any other website, You do so at Your own risk.

You will need to make your own independent judgement regarding your interaction with any third-party Sites, including the purchase and use of any products or services accessible through them.

Termination

We may remove the App or cease providing any of the services, features, content, materials, information or services provided via the App at any time in Our absolute discretion for any reason whatsoever.

You may terminate the Services and uninstall the App from Your Device at any time.

If you terminate a Subscription Package which includes Monitoring Equipment, you may continue to use the App but will only have access to the free version and Services, which will entitle you to continue to access some of the data and features. Our third party supplier will arrange to uninstall and collect any Monitoring Equipment from the Older Adult’s home and You will cooperate with them to give them access. We will continue to charge for the Subscription Package until such time that you have given access for the Monitoring Equipment to be retrieved.

Neither Clause 11.1 nor Clause 11.3 will affect any accrued rights and liabilities of either You or Us as at the time of such removal or uninstallation.

Privacy and confidentiality

Birdie is committed to respecting Your privacy and the privacy of the Older Adult who is the subject of the Services. More information regarding how Birdie may use personal data can be found in Our Privacy Policy.

Other than personally identifiable information (which is covered under our Privacy Policy), any material such as reviews or ratings which you transmit or post to the App (“User Content”) shall be considered non-confidential and non-proprietary. Birdie shall have no obligation with respect to such material. You are solely responsible for such material. Birdie shall be free to copy, disclose, distribute, incorporate and otherwise use such material and all data, images, sounds, text and other things embodied therein for any and all commercial or non-commercial purposes.

General

If You would like to contact Us or make a complaint about anything contained in the App, please contact Us by email at: support@birdie.care

We will not be liable or responsible for any failure to perform, or delay in performance of, any of our obligations under these Terms of Use that is caused by any act or event beyond our reasonable control, including failure of performance by Carers, any Care Agency or failure of public or private telecommunications networks (“Event Outside Our Control”). If an Event Outside Our Control takes place that affects the performance of our obligations under these Terms of Use:

Our obligations under these Terms of Use shall be suspended for the duration of the Event Outside Our Control; and

We will use our reasonable endeavours to find a solution by which Our obligations under these Terms of Use may be performed despite the Event Outside Our Control.

We may transfer Our rights and obligations under these Terms of Use to another organisation but this will not affect your rights or Our obligations under these Terms of Use.

You may only transfer Your rights or obligations under these Terms of Use to another person if we agree in writing.

Any failure or delay by Us to enforce any of Our rights under these Terms of Use will not be taken as or deemed to be a waiver of that or any other right unless We acknowledge and agree to such a waiver in writing.

Other than as set out in Clause 3, these Terms of Use are not intended to be for the benefit of, and will not be exercisable by, any person who is not a party to these Terms of Use. Notwithstanding the foregoing, You acknowledge and agree that the applicable app store provider (and each of its respective subsidiaries) is a third party beneficiary of these Terms of Use and therefore may enforce its respective rights under these Terms of Use against You.

If any Clause or part of a Clause of these Terms of Use is or becomes invalid, illegal or unenforceable, the remainder of these Terms of Use shall remain valid and enforceable.

These terms are governed by English law and You can bring legal proceedings in the English courts.

Alternative dispute resolution is a process where an independent body considers the facts of a dispute and seeks to resolve it, without You having to go to court. If You are not happy with how we have handled any complaint, You may want to submit the dispute to an online resolution to the European Commission Online Dispute Resolution platform (click here). If You are not satisfied with the outcome You can still bring legal proceedings.

Trial Offer

Offer valid between 1st January 2018 – 31st December 2018. This offer (the “Trial Offer”), which is made to you by Birdie Care Services Limited (“Birdie” or “Birdie Care”) (as defined in the Birdie Care Terms and Conditions of Use), entitles you to access the Birdie Plus and Premium Service (as defined in the Birdie Care Terms and Conditions of Use) for a period of two (2) months from the moment that you activate such trial period by submitting your details (the “Trial Period”). By submitting your details, (i) you accept the Trial Offer, (ii) consent to us using your details in accordance with our Privacy Policy, (iii) acknowledge and agree to the Birdie Care Terms and Conditions of Use and these Trial Offer Terms and Conditions. If you decide that you do not want to remain a user of the Birdie Plus & Premium Service, you have to cancel your subscription to Service by logging into your account. You may only use this Trial Offer once. You may also be ineligible for this Trial Offer if you have taken other previous trial offers offered by Birdie Care. The Birdie Care service may not be available on certain personal devices.

This Trial Offer expires and must be redeemed before the date advertised. Birdie Care reserves the right to earlier terminate this Trial Offer at any time and for any reason. After such time of termination, Birdie Care shall not be obligated to redeem any further Trial Offers. Birdie Care Services LTD.