SmartPlans additional product terms
Key SmartPlans terms – please read first
This summary highlights the key things to know about SmartPlans. It is for convenience only and is not a substitute for the full terms below – the full terms govern. SmartPlans is an add-on product offered by Birdie. These SmartPlans Terms supplement the existing Birdie Terms and Conditions (which we refer to as the “main Terms”) in respect of your use of SmartPlans, and override the main Terms to the extent of any conflict in respect of SmartPlans.
1. Recording consent is your responsibility. SmartPlans captures audio of interactions between your Authorised Users and Care Recipients (and any other persons present), or of dictation by your Authorised Users. You must ensure that all conditions for processing personal data under Applicable Data Protection Laws are satisfied before any recording is made (including a lawful basis and, where required, consent). Our in-app prompt is informational only and does not block recording.
2. Human review is mandatory. AI suggestions only populate a care plan if a human expressly accepts them. We do not auto-populate any care plan content. If a suggestion is not accepted, the care plan will be saved without that content. We may change this default position on 30 days’ written notice – see clause 4.2.
3. Per-hour billing. SmartPlans is billed by reference to the total time of audio recorded in each billing cycle, rounded up to the nearest 0.1 of an hour, with the resulting fee rounded to the nearest penny. We offer two charging models: a Subscription Plan, under which you commit each month to a set number of Unit Hours and pay the Unit Price for that month (you pay the Unit Price even if you record fewer hours; any overage is charged at the Subscription Variable Rate; and unused hours roll forward within the current term – see clause 9.2); and a Pay-for-use Plan with no minimum commitment (you pay only for hours actually recorded). Your charging model, Unit Hours, Unit Price, Subscription Variable Rate and any other applicable rates are set out in your SmartPlans Order Form.
4. Termination depends on your charging model. Under the Subscription Plan, SmartPlans renews and terminates on the same basis as the main Birdie subscription and requires 90 days’ written notice (this overrides the 10-day notice in clause 15.4 of the main Terms in respect of SmartPlans). Under the Pay-for-use Plan, SmartPlans has no fixed term and can be terminated by either party on the calendar-month notice mechanic set out in clause 10.2(b), independently of the main Birdie subscription; we may also cancel your access to SmartPlans under the Pay-for-use Plan if you do not use it for any consecutive 3-month period.
5. Audio and transcript lifecycle; local downloads. Audio Recordings are auto-deleted from our systems after 60 days. Transcripts are retained until you either (i) delete them in the SmartPlans UI or (ii) you are no longer a Birdie customer. Authorised Users may download Audio Recordings and Transcripts via the SmartPlans UI; once downloaded, you are responsible for storing, managing and securing any local copies (we have no further obligations in respect of downloaded copies). On termination, you can view your existing Transcripts, but will not be able to create new Transcripts. Care Plans (the structured content saved into your main Birdie product) remain governed by the main Terms.
6. Product improvement. By accepting your Order Form, you grant us the right to use SmartPlans data (including Audio Recordings, Transcripts, Care Plans and SmartPlans suggestions) on a non-anonymised basis to improve our products and services. You acknowledge and accept that Birdie will act as a separate, independent controller of this data for this purpose. You agree to assist us in gaining consent from individuals for this purpose and to provide our privacy notice explaining this. See clause 12.3.
7. Annual fee adjustment. We may, on or around 1 January each year, increase the SmartPlans Subscription Fee and any other recurring SmartPlans fees by up to the higher of (i) the RPI inflation rate over the preceding 12 months or (ii) 10%, on at least 30 days’ written notice. You expressly consent in advance to any such uplift and may not terminate on account of an uplift within this limit. We may also pass on cost-driven increases above this limit, in which case you have an objection-and-termination right. See clause 9.9.
1. Introduction and incorporation
1.1 These SmartPlans Additional Product Terms (the “SmartPlans Terms”) apply to your subscription for SmartPlans and form part of your Agreement with Birdie Care Services Limited (“Birdie”, “we”, “us”, “our”).
1.2 In these SmartPlans Terms, the “main Terms” means the Birdie Terms and Conditions available at https://www.birdie.care/terms/terms-and-conditions, as in force from time to time. Capitalised terms used but not defined in these SmartPlans Terms have the meanings given in the main Terms or as introduced where they appear in these SmartPlans Terms.
1.3 Status as an additional product. SmartPlans is an additional product or service we offer alongside our main Birdie product. These SmartPlans Terms supplement the main Terms in respect of your use of SmartPlans. The main Terms continue to apply to SmartPlans except to the extent these SmartPlans Terms expressly override or supplement them. In the event of any conflict between these SmartPlans Terms (or any SmartPlans Order Form or the SmartPlans DPA) and the main Terms in respect of SmartPlans, these SmartPlans Terms (and any SmartPlans Order Form or the SmartPlans DPA) take precedence in respect of SmartPlans only. Nothing in these SmartPlans Terms varies the main Terms in respect of any product or service other than SmartPlans.
1.4 Acceptance. By accepting an Order Form or quotation (both referred to as an “Order Form”) for SmartPlans (whether by signature, checkbox or other written confirmation), you agree to be bound, in respect of your use of SmartPlans, by: (a) these SmartPlans Terms; (b) the main Terms (including, by reference, the Acceptable Use Policy and the Privacy Notice referred to in clause 1.3 of the main Terms, but excluding the DPA referred to in the main Terms); (c) the Acceptable Customer Behaviour Policy (available at https://www.birdie.care/acceptable-customer-behaviour-policy); and (d) the SmartPlans DPA. Any reference to a DPA in the main Terms, when applied to SmartPlans, shall be deemed a reference to the SmartPlans DPA.
1.5 Migration of beta, alpha and trial customers. With effect from the SmartPlans Effective Date, the parties mutually agree that any prior beta, alpha, trial, pilot or other early-access terms or arrangements that previously governed your use of SmartPlans terminate, and these SmartPlans Terms apply in their place. No rights or obligations under those prior terms survive the SmartPlans Effective Date, other than: (a) accrued payment obligations; and (b) any obligation that is explicitly described in those terms to survive termination, or any other term that by its nature is intended to survive the termination of those prior terms.
1.6 Forward compatibility. If and when the main Terms are amended, updated or replaced after the date of these SmartPlans Terms, references in these SmartPlans Terms to specific clauses of the main Terms will continue to apply as drafted, save that where any specific cross-referenced clause is renumbered or its substance moved into a different clause of the updated main Terms, references in these SmartPlans Terms to the original clause will be read as references to the substantively equivalent provision of the updated main Terms.
2. What SmartPlans is
2.1 Description. SmartPlans is an AI-assisted feature of the Platform that allows your Authorised Users to record care assessment meetings with Care Recipients (and any other persons present), or to record dictation in addition to the care assessment recording, using a mobile device. SmartPlans transcribes those Audio Recordings, identifies each speaker, and generates suggestions to populate assessment care-plan templates. The suggestions are surfaced in the Platform for human review and acceptance.
2.2 Hard-gate human review. Each suggestion generated by SmartPlans must be reviewed by an authorised human and expressly accepted before any content populates a Care Plan. We do not automatically populate any Care Plan content. If a suggestion is not accepted, the Care Plan will be saved without that content.
2.3 Not a medical device. SmartPlans is software intended by us to be used as a clinical administration aid only. SmartPlans is not intended by us to be a medical device under the Medical Devices Regulations 2002 or any analogous regulatory framework. SmartPlans is not designed for, or to be relied on in respect of, any diagnostic, therapeutic or other clinical decision-making purpose. You remain responsible for the content of every Care Plan, including but not limited to any content that may involve clinical decision-making (see clauses 2.2 and 4.4).
2.4 Mobile and web. SmartPlans is delivered through both the Birdie mobile application and the Birdie web application. You are responsible for the security of any device used to access SmartPlans and for the access rights you grant to your Authorised Users (clause 4.2 of the main Terms applies to SmartPlans).
3. Definitions
In these SmartPlans Terms, the following capitalised terms have the meanings set out below. Other defined terms have the meanings given in the main Terms or as introduced where they appear in these SmartPlans Terms.
“Acceptable Customer Behaviour Policy” means our policy available at https://www.birdie.care/acceptable-customer-behaviour-policy, as updated from time to time, which sets out the standards of behaviour we expect from you and your Authorised Users when interacting with us.
“Additional Product” means any additional product or service offered by Birdie alongside the main Birdie product, including SmartPlans.
“Applicable Data Protection Laws” means has the meaning given in clause 2.1 of the main Terms.
“Audio Recording” means any audio recording that has been saved within the SmartPlans application, including any such recording that is subsequently deleted (whether by an Authorised User, automatically or by us). Audio captured but discarded before being saved within the SmartPlans application is not an Audio Recording.
“Care Plan” means the structured care record stored in the main Birdie product where any of its content has been generated or populated through SmartPlans (in whole or in part).
“Care Recipient” for the purposes of these SmartPlans Terms (and notwithstanding the definition of “Care Recipient” in clause 2.1 of the main Terms), means any end-client to whom you provide care services and whose voice or personal data may be captured by an Audio Recording. The narrower definition in clause 2.1 of the main Terms continues to apply for the purposes of the main Terms (including billing under the main Terms).
“Customer Data” means for the purposes of these SmartPlans Terms includes (in respect of SmartPlans) personal data of the data subjects identified in clause 5.1, notwithstanding any exclusion of personal data in clause 2.1 of the main Terms.
“Pay-for-use Plan” means the SmartPlans charging model described in clause 9.1(b).
“SmartPlans” means the SmartPlans additional product offered by Birdie, as further described in clause 2.
“SmartPlans DPA” means our SmartPlans Data Processing Agreement set out in Annexure 1 to these SmartPlans Terms, as updated from time to time, which governs the processing of personal data by us in connection with SmartPlans and which (in respect of SmartPlans) replaces the Data Processing Agreement referred to in clause 1.3 of the main Terms.
“SmartPlans Effective Date” means the first day of the first billing cycle as shown in your SmartPlans Order Form, or such other date specified in your Order Form as being the SmartPlans Effective Date.
“SmartPlans Guidance” has the meaning given in clause 5.9.
“SmartPlans Order Form” means the Order Form or quotation (or a section of them, as appropriate) under which you subscribe for SmartPlans.
“SmartPlans Services” means the SmartPlans services and any related services we provide as part of SmartPlans, including audio capture and storage, AI-generated transcription, AI-generated suggestions, and the SmartPlans-specific features of the Platform and any mobile applications.
“SmartPlans Subscription Fee” means the fees payable for SmartPlans, as set out in your SmartPlans Order Form and clause 9.
“SmartPlans Subscription Term” means (a) under the Subscription Plan, the initial term of your subscription for SmartPlans as set out in your SmartPlans Order Form, together with any Renewal Period; or (b) under the Pay-for-use Plan, the period from the SmartPlans Effective Date until termination of SmartPlans in accordance with clause 10.2(b).
“Subscription Plan” means the SmartPlans charging model described in clause 9.1(a).
“Subscription Variable Rate” means the per-hour rate shown as “Subscription Variable Rate” on your SmartPlans Order Form, which applies under the Subscription Plan to hours of audio recorded in any month in excess of the Unit Hours (after applying any Unused Hours under clause 9.2).
“Transcript” means a transcription of an Audio Recording (whether produced by us automatically through SmartPlans, or otherwise stored within SmartPlans).
“Unit Hours” means the number of hours of audio per month shown as “Unit Hours per month” on your SmartPlans Order Form, being the minimum number of hours of audio that you commit to, and pay for, each month under the Subscription Plan (regardless of whether you record fewer hours in any given month).
“Unit Price” means the monthly fee shown as “Unit Price” on your SmartPlans Order Form, payable under the Subscription Plan in respect of the Unit Hours each month.
“Unused Hours” means has the meaning given in clause 9.2(c).
4. The SmartPlans Services and your right to use them
4.1 Right to access and use. Subject to your compliance with the Agreement, we grant you and your Authorised Users a non-transferable, non-sublicensable, non-exclusive and revocable right to access and use the SmartPlans Services during the SmartPlans Subscription Term, solely for the purpose of running your business operations and providing care to your Care Recipients. Clauses 4, 5, 6 and 7 of the main Terms (which deal with User account, Services, Accessing the Services and Using the Services) apply to your use of SmartPlans, in addition to this clause 4 and except as overridden by these SmartPlans Terms.
4.2 Hard-gate review. We have designed the SmartPlans interface so that no suggestion generated by SmartPlans populates any Care Plan unless an authorised human reviews the suggestion and expressly accepts it. We will not change this default position without giving you at least 30 days’ written notice of the change.
4.3 Availability. Clause 6.2 of the main Terms (uptime and availability) does not apply to SmartPlans. SmartPlans is provided on an ‘as available’ basis. SmartPlans relies on a number of third-party services (including the AI providers used in providing SmartPlans), and SmartPlans availability may be affected by the availability of those third-party services. We make no commitment as to the availability, uptime or accessibility of SmartPlans, and we may make SmartPlans unavailable (in whole or in part) at any time, including for maintenance, change, upgrade, third-party service outage or for any other reason.
4.4 AI-generated transcriptions and suggestions. The SmartPlans Services include outputs generated by artificial intelligence (including transcripts and suggestions). You acknowledge that AI-generated outputs may be incomplete, inaccurate, biased, or otherwise unsuitable for any specific purpose. You are responsible for reviewing each transcription and suggestion and exercising professional judgment before acceptance, and AI-generated suggestions are not a substitute for clinical or professional judgment. AI-generated outputs are not warranted by us as accurate or fit for any specific purpose. This clause 4.4 supplements the main Terms in respect of SmartPlans.
4.5 Mobile application. SmartPlans requires access to the microphone, local storage and network connectivity on each device used to record audio. You are responsible for ensuring those permissions are granted and managed in accordance with your information-security policies. The Acceptable Use Policy applies to all use of the SmartPlans mobile application.
5. Recording, consent and your responsibilities
5.1 Customer responsibility for processing conditions. You are responsible for ensuring that, before any Audio Recording is made and for the duration of any subsequent processing, all conditions for processing the personal data of each data subject under Applicable Data Protection Laws are satisfied. Data subjects include each Care Recipient, each Authorised User, and any other person whose voice or personal data may be captured (including family members, visitors and other staff).
5.2 In-app prompt is informational only. Our app prompts the user to confirm that the conditions for processing are satisfied before recording. The prompt is provided as an aid only. It does not block the recording, does not constitute lawful consent of any data subject, and does not transfer responsibility for processing conditions to us. You remain responsible for ensuring those conditions are in fact satisfied, regardless of how the prompt is answered.
5.3 Customer warranty and indemnity. You warrant to us that, for each Audio Recording made using SmartPlans, all conditions for the processing of personal data of each data subject under Applicable Data Protection Laws are satisfied, including (a) the existence of a lawful basis under UK GDPR Article 6 and (where applicable) a condition for processing special category data under UK GDPR Article 9 (including, where required, any additional conditions and safeguards in the Data Protection Act 2018); and (b) where required, the obtaining or giving of any consents, notices or authorisations (having regard, where the data subject lacks capacity to consent, to the Mental Capacity Act 2005 and any other applicable legislation, and to whether a basis other than consent applies under Applicable Data Protection Laws). You will defend, indemnify and hold us harmless against all claims, actions, proceedings, losses, damages, expenses and costs (including court costs and reasonable legal fees, and any regulatory fines imposed on us by a competent authority) arising out of or in connection with any breach of this warranty.
5.4 Care Recipients lacking capacity. Where a Care Recipient, Authorised User or other person whose voice or personal data may be captured by an Audio Recording lacks capacity to consent to recording, you must (a) ensure that a lawful basis applies under Applicable Data Protection Laws; (b) ensure that any best-interests assessment, attorney decision under a Health and Welfare Lasting Power of Attorney, or other legal authorisation required to authorise the recording is in place; and (c) document and retain evidence of (a) and (b). We make our consent guidance available to you to assist; the assessment of capacity and the obtaining of consent or other authorisation are your responsibility.
5.5 Authorised User consents. You must ensure that each of your Authorised Users has given any consents required under Applicable Data Protection Laws (or under their employment contract or any other arrangement) for their voice and personal data to be recorded, transcribed and processed using SmartPlans, including the processing of voice biometric data for speaker-role identification. Further details of the processing operations and the conditions relied on are set out in the SmartPlans DPA.
5.6 Withdrawal of consent. If any data subject withdraws their consent to recording or processing under SmartPlans (or their right to be subject to that processing is otherwise revoked, including where best-interests authority changes), you must: (a) promptly stop further recording of that data subject; (b) notify us within three working days of receipt of the data subject’s notice; and (c) where any Audio Recording or Transcript still exists on our systems in respect of the data subject, promptly delete it through the SmartPlans UI (the Audio Recording is in any event subject to auto-deletion under clause 6.1).
5.7 Data minimisation. You must ensure that recordings made using SmartPlans are limited to those that are necessary for, and relevant to, care planning. You must not record meetings or interactions that fall outside this purpose.
5.8 Customer responsibilities under the main Terms and the Acceptable Customer Behaviour Policy. Without limiting this clause 5, the customer responsibilities in clauses 4 (User account) and 7 (Using the Services) of the main Terms apply to your use of SmartPlans (including (without limitation) the compliance-with-laws obligation in clause 7.1, the one-user-per-account undertaking in clause 7.4, the use restrictions in clauses 7.3 and 7.5, and your compliance with the Acceptable Use Policy under clause 7.6). You must also comply with the Acceptable Customer Behaviour Policy.
5.9 Use of SmartPlans in accordance with our guidance and training. You must use SmartPlans, and procure that each of your Authorised Users uses SmartPlans, only in accordance with the guidance, instructions, training materials and any other communications we make available to you or your Authorised Users from time to time about the safe and effective use of SmartPlans (together, the “SmartPlans Guidance”). You must ensure that each of your Authorised Users has received and understood the SmartPlans Guidance applicable to their role before using SmartPlans, and complies with it on an ongoing basis. We may update the SmartPlans Guidance from time to time, and will notify you of any material update; you must update your practices and your Authorised Users’ training within 30 days of receiving any such notice (or such longer period as we may agree). We accept no liability of any kind for any loss, damage, claim or liability arising from any use of SmartPlans contrary to the SmartPlans Guidance, in accordance with clause 11.3(o).
6. Lifecycle of Audio Recordings and Transcripts
6.1 Audio Recording retention. Audio Recordings are retained on our systems for 60 days from the date the recording is saved, after which they are automatically and irreversibly deleted. Your authorised administrators may delete an Audio Recording and any associated Transcript earlier through the SmartPlans UI. Notwithstanding the above, we may retain copies of Audio Recordings, Transcripts and any derivative data (including extracted datasets) for the Product Improvement Purposes set out in clause 12.3, beyond the 60-day period.
6.2 Transcript retention. Transcripts are retained on our systems for as long as your subscription under the main Terms is in force, unless you delete them earlier using the SmartPlans UI. They are not deleted on termination of the SmartPlans Services.
6.3 Downloads of Audio Recordings and Transcripts. Your Authorised Users may, through the SmartPlans UI, download an Audio Recording or a PDF of a Transcript to a local device. Once downloaded, the downloaded copy of the Audio Recording and/or the Transcript is no longer hosted on our systems and is no longer subject to the retention, access or deletion provisions of these SmartPlans Terms. You are solely responsible for the security, storage, retention, use, deletion and any further processing of any downloaded Audio Recording or Transcript (and any copies you or your Authorised Users make of it), including ensuring that any local processing continues to comply with Applicable Data Protection Laws and your obligations under this Agreement. We have no liability of any kind in respect of any downloaded Audio Recording or Transcript (or any copies of it) once the download is complete.
6.4 Care Plans. Care Plans (including content accepted from SmartPlans suggestions and saved into your main Birdie product) are retained as part of the main Birdie product, in accordance with the main Terms. They are not deleted on termination of SmartPlans alone.
6.5 Effect of termination on data. On termination of SmartPlans (whether on its own or as part of termination of the Agreement as a whole):
(a) Audio Recordings will cease to be available to you on termination of SmartPlans — you must ensure you have downloaded any required Audio Recording prior to termination;
(b) Audio Recordings will continue to be auto-deleted on the 60-day rolling basis under clause 6.1, and we may, at our discretion, delete any Audio Recordings still on our systems earlier;
(c) Care Plans already populated and saved into the main Birdie product remain governed by the main Terms; and
(d) the Product Improvement Purposes licence in clause 12.3 of these SmartPlans Terms survives termination (clause 12.3(g)).
7. AI use and sub-processors
7.1 AI providers. We use third-party artificial intelligence and machine-learning providers in the delivery of SmartPlans, as further described in the SmartPlans DPA. We may change AI providers from time to time and will update the sub-processor list in the SmartPlans DPA accordingly.
7.2 No automated decision-making with legal or similarly significant effect. Because each SmartPlans suggestion requires express human acceptance before it populates a Care Plan (the hard gate in clauses 2.2 and 4.2), SmartPlans does not, on its own, make any automated decision in respect of any data subject that has a legal or similarly significant effect on them within the meaning of UK GDPR Article 22.
7.3 Subcontracting and third-party providers. We may use subcontractors and third-party service providers (including cloud-hosting and AI providers) to perform any part of our obligations in respect of SmartPlans. This clause 7.3 supplements the main Terms in respect of SmartPlans.
7.4 AI regulation. We will comply with applicable laws governing the use of artificial intelligence and machine-learning, including (where applicable) the EU AI Act and any analogous UK legislation. You will provide such reasonable cooperation as we may request to support our compliance, including (a) following our reasonable instructions on the safe and effective use of SmartPlans (including any stipulated limitations communicated from time to time); (b) providing accurate information about Care Recipients, Authorised Users or other persons whose voice or personal data may be captured by an Audio Recording where this is reasonably required by us; and (c) reporting to us any incident or harm that you reasonably believe may be attributable to a SmartPlans output.
8. Data protection
8.1 Application of the main Terms. Clause 12 of the main Terms (Data protection and privacy) applies to SmartPlans, except as supplemented or modified by these SmartPlans Terms and the SmartPlans DPA.
8.2 SmartPlans DPA replaces the existing Data Processing Agreement in respect of SmartPlans. The SmartPlans DPA governs the processing of personal data by us in connection with SmartPlans. In respect of SmartPlans, the SmartPlans DPA replaces the DPA referred to in clause 1.3 of the main Terms (which continues to apply unchanged to the main Birdie product and any other Additional Product).
8.3 Roles. The respective roles of the parties under UK GDPR in respect of SmartPlans are set out in the SmartPlans DPA and clause 12.3 of these SmartPlans Terms.
9. Fees and payment for SmartPlans
9.1 Charging models. We offer SmartPlans on two charging models, as specified in your SmartPlans Order Form:
(a) Subscription Plan. A defined SmartPlans Subscription Term under which you commit each month to the Unit Hours and pay the Unit Price for that month, regardless of your actual usage that month. Hours of audio recorded in excess of the Unit Hours are charged at the Subscription Variable Rate, in addition to the Unit Price. The full Subscription Plan mechanics (including the monthly Unit Hours commitment, overage at the Subscription Variable Rate, and roll-over of Unused Hours) are set out in clause 9.2.
(b) Pay-for-use Plan. No minimum hours commitment and no fixed term. You pay only for the actual hours of audio recorded in each billing cycle at the per-hour rate set out in your SmartPlans Order Form.
Your charging model and the applicable rates – under the Subscription Plan, your Unit Hours, Unit Price and Subscription Variable Rate; under the Pay-for-use Plan, the per-hour rate – are set out in your SmartPlans Order Form.
9.2 Subscription Plan – Unit Hours, Unit Price, overage and roll-over. This clause 9.2 applies to the Subscription Plan only.
(a) Unit Hours and Unit Price. Your Unit Hours are the minimum number of hours of audio you commit to, and pay for, each month under the Subscription Plan, as shown on your SmartPlans Order Form. The Unit Price is payable each month in respect of the Unit Hours, regardless of whether you record fewer hours of audio than the Unit Hours in that month.
(b) Overage at the Subscription Variable Rate. If, in any month, the total hours of audio recorded by you and your Authorised Users (calculated and rounded in accordance with clause 9.3) exceed your Unit Hours for that month, the excess hours will be charged at the Subscription Variable Rate (subject to the application of any Unused Hours under sub-clause (d) below), in addition to the Unit Price for that month.
(c) Roll-over of unused hours. If, in any month, you record fewer hours of audio than your Unit Hours, you remain liable to pay the Unit Price in full for that month. The difference between your Unit Hours and the hours of audio actually recorded in that month (the “Unused Hours”) may be carried forward and applied against your audio usage in subsequent months, subject to sub-clauses (d) and (e) below.
(d) How Unused Hours are applied. In any month in which your audio usage exceeds your Unit Hours, the excess will first be drawn from any Unused Hours then available (on a first-in, first-out basis) before any Subscription Variable Rate is applied. Hours drawn from Unused Hours are not charged separately, because the Unit Price was already paid in the month in which those hours accrued as Unused Hours.
(e) Expiry of Unused Hours. Unused Hours expire automatically, and without any refund, credit or other compensation, at the end of the term during which they accrued. For this purpose, the initial term of your SmartPlans subscription as set out in your SmartPlans Order Form, and each subsequent Renewal Period, are each treated as a separate term: Unused Hours accrued during the initial term do not carry forward into any Renewal Period, and Unused Hours accrued during a Renewal Period do not carry forward into the next Renewal Period. Unused Hours have no monetary value, cannot be redeemed for cash, and cannot be transferred to any other person.
(f) No advance use. You may not draw against the Unit Hours of any future month, or against Unused Hours that have not yet accrued, in order to avoid Subscription Variable Rate charges in the current month.
9.3 Rounding per billing cycle. At the end of each billing cycle, we will calculate the total time of all Audio Recordings made by you and your Authorised Users during that billing cycle (in hours and minutes). The total is rounded up to the nearest 0.1 of an hour. The SmartPlans Subscription Fee for the billing cycle is then calculated by applying the fees and rates set out in clauses 9.1 and 9.2 to the rounded total. The resulting fee is rounded to the nearest whole penny.
9.4 Inclusion of deleted recordings. The total in clause 9.3 includes any Audio Recording made during the billing cycle, regardless of whether it was subsequently deleted. For the avoidance of doubt (and consistent with the definition of Audio Recording in clause 3), this clause does not capture audio that was discarded by an Authorised User before being saved within the SmartPlans application.
9.5 Billing in arrears; payment terms. The SmartPlans Subscription Fee is invoiced monthly in arrears, unless your SmartPlans Order Form specifies a different billing frequency. Clause 9 of the main Terms (Payment) applies to the SmartPlans Subscription Fee, including the late-payment provisions in clause 9.3 of the main Terms.
9.6 Other fees. Any add-on fees, professional services fees or other fees relating to SmartPlans are as set out in your SmartPlans Order Form, or otherwise agreed in writing. Unless the SmartPlans Order Form or written agreement specifies otherwise, those other fees are invoiced monthly in arrears and are payable on the same terms as the SmartPlans Subscription Fee under clause 9.5.
9.7 No set-off. All amounts payable by you in respect of SmartPlans must be paid in full, without any deduction, set-off, counterclaim, abatement or withholding (other than any deduction or withholding required by law). This clause 9.7 supplements the main Terms in respect of SmartPlans.
9.8 Fair-usage SMS limit does not apply. The fair-usage limit on SMS notifications set out in clause 8 of the main Terms relates to SMS notifications under the main Birdie product and does not apply to SmartPlans. SmartPlans usage is charged on the per-hour basis set out in this clause 9.
9.9 Annual fee adjustment during the SmartPlans Subscription Term. This clause 9.9 applies to the SmartPlans Subscription Fee in place of clause 9.2 of the main Terms in respect of SmartPlans only.
(a) Annual uplift. We may, on or around 1 January each year (or such other annual date as we notify you), increase the SmartPlans Subscription Fee and any other recurring SmartPlans fees (including any per-hour rate set out in the SmartPlans Order Form) by up to the higher of: (i) the percentage increase in the UK All Items Retail Prices Index (RPI) published by the Office for National Statistics (or any official successor index) over the 12 months preceding the date of the increase; and (ii) 10%. You expressly consent in advance to any such uplift. We will give you at least 30 days’ written notice of the uplift before it takes effect. You have no right to terminate this Agreement or SmartPlans on account of an uplift made within the limit set out in this sub-clause (a).
(b) Cost-driven additional increase. Where we reasonably consider that our costs of providing SmartPlans have materially increased (for example, due to increases in the cost of artificial intelligence, machine-learning, hosting or other processing services), we may give you written notice of an increase that exceeds the limit set out in sub-clause (a) (an “Additional Increase”). You may object to the Additional Increase in writing within 30 days of receiving the notice (the “Objection Window”). If you do not object within the Objection Window, the Additional Increase takes effect from the date specified in the notice (which will be no earlier than the end of the Objection Window). If you object within the Objection Window, the Additional Increase will not take effect and this Agreement (in respect of SmartPlans only) will terminate 30 days after the end of the Objection Window. During that 30-day period, SmartPlans will continue to be provided at the then-current rate (before the Additional Increase).
(c) Relationship with clause 15.5 of the main Terms. The uplift mechanisms in sub-clauses (a) and (b) above operate in addition to (and independently of) clause 15.5 of the main Terms (renewal at then-current list price), which continues to apply to fee changes proposed on renewal.
10. Term, renewal and termination
10.1 Effective date and SmartPlans Subscription Term.
(a) Your SmartPlans Subscription Term is set out in your SmartPlans Order Form.
(b) Under the Subscription Plan, if you subscribe to SmartPlans during the term of your main Birdie subscription, the SmartPlans Subscription Term begins on the SmartPlans Effective Date and ends on the same date as the then-current Subscription Term for your main Birdie subscription, unless your Order Form specifies otherwise. SmartPlans will renew on the same dates as the main Birdie subscription, unless your Order Form specifies otherwise.
(c) Under the Pay-for-use Plan, SmartPlans is provided on a rolling basis with no fixed term, beginning on the SmartPlans Effective Date and continuing until terminated in accordance with clause 10.2(b).
10.2 Renewal and termination. This clause 10.2 supplements and (where they conflict) overrides clause 15 of the main Terms in respect of SmartPlans.
(a) Subscription Plan. If you subscribe to SmartPlans under the Subscription Plan:
(i) SmartPlans renews automatically alongside your main Birdie subscription (and any other Additional Product on the Subscription Plan), in accordance with clauses 15.4 and 15.5 of the main Terms, unless your Order Form specifies otherwise;
(ii) you must give us a separate written notice of termination in respect of SmartPlans (notice given in respect of your main Birdie subscription does not automatically apply to SmartPlans, and vice versa);
(iii) a 90-day notice period applies to SmartPlans under the Subscription Plan, in place of the 10-day notice in clause 15.4(i) of the main Terms. Either party may terminate SmartPlans under the Subscription Plan by giving the other at least 90 days’ written notice before the end of the then-current SmartPlans Subscription Term or Renewal Period. For the avoidance of doubt, notice given less than 90 days before the end of the SmartPlans Subscription Term will not prevent automatic renewal of SmartPlans; and
(iv) clauses 15.4(ii) (Services discontinued), 15.4(iii) (provision unlawful), 15.4(iv) (other terminations under the Agreement) and 15.6 (material breach and insolvency) of the main Terms continue to apply to SmartPlans under the Subscription Plan.
(b) Pay-for-use Plan. If you subscribe to SmartPlans under the Pay-for-use Plan:
(i) SmartPlans has no fixed term and no automatic renewal mechanism;
(ii) either party may terminate SmartPlans by written notice given to the other party. A notice of termination must be received in writing by the other party at least 10 days before the end of a calendar month, in which case termination of SmartPlans takes effect on the first day of the following calendar month. A notice of termination received less than 10 days before the end of a calendar month will instead take effect on the first day of the second calendar month following the date of receipt. Termination of SmartPlans under this sub-clause (b) is independent of your main Birdie subscription: terminating SmartPlans does not, by itself, terminate your main Birdie subscription, and terminating your main Birdie subscription does not, by itself, terminate SmartPlans under the Pay-for-use Plan (subject to clause 10.3 below);
(iii) clauses 15.4(ii), 15.4(iii), 15.4(iv) and 15.6 of the main Terms continue to apply to SmartPlans under the Pay-for-use Plan;
(iv) clauses 15.4(i) and 15.5 of the main Terms (10-day notice and renewal price) do not apply to SmartPlans under the Pay-for-use Plan (the calendar-month notice mechanic in sub-clause (b)(ii) applies in their place); and
(v) Non-use cancellation by us. If you do not make any Audio Recording using SmartPlans for any consecutive 3-month period (a “Non-Use Period”), we may, at our discretion, cancel your access to SmartPlans at any time after the end of that Non-Use Period by giving you written notice. Cancellation takes effect on the date specified in our notice (which will be at least 14 days after the date of the notice). Cancellation under this sub-clause is treated as a termination of SmartPlans under this clause 10.
10.3 Cross-product termination right. This clause 10.3 supplements the main Terms in respect of SmartPlans.
(a) Breach of SmartPlans Terms triggers right to terminate across products. Without limiting clause 15.6 of the main Terms, any material breach by you of these SmartPlans Terms (or any SmartPlans Order Form or the SmartPlans DPA) entitles us to terminate this Agreement and any Additional Product (including SmartPlans), across all products and services we provide to you, by written notice if you fail to remedy the breach within 30 days of being notified, or with immediate effect where we determine such breach incapable of satisfactory remedy.
(b) Effect on other products if you terminate SmartPlans (or vice versa). If you terminate SmartPlans or your main Birdie subscription (or any other Additional Product), we may, at our sole discretion: (i) terminate any or all of the other products or services we provide to you, by giving you written notice; and/or (ii) revise the pricing for any other product or service we continue to provide to you to our then-current list price, with effect from the date your termination takes effect (or from the next billing cycle, if later).
10.4 Effect of termination on data. The effect of termination of SmartPlans on Audio Recordings, Transcripts and Care Plans is set out in clause 6.5. The SmartPlans DPA also applies, including in respect of any return or deletion of personal data on termination. For the avoidance of doubt, the licence granted to us in clause 12.3 of these SmartPlans Terms survives termination in accordance with clause 12.3(g).
11. Liability for SmartPlans
11.1 Limitation of liability – main Terms apply. Clause 13 of the main Terms (Limitations of liability) applies to your use of SmartPlans, except as supplemented or modified by this clause 11.
11.2 SmartPlans-specific cap. Subject to clause 13.7 of the main Terms (liabilities that cannot be excluded or limited):
(a) our total liability to you in respect of any claim arising solely in connection with SmartPlans, in each rolling 12-month period (calculated from the SmartPlans Effective Date), is limited to the total SmartPlans Subscription Fees paid to us during those 12 months; and
(b) the cap in (a) operates within (and counts towards) the overall liability cap in clause 13.5 of the main Terms. Nothing in this clause increases our overall liability to you above the cap in clause 13.5 of the main Terms.
11.3 Additional matters outside our liability for SmartPlans. Subject to clause 13.7 of the main Terms, and without limiting clause 13.2 of the main Terms, we are not liable for any loss, delay, cost, charge, fine, damage or third-party claim of any kind (whether direct or indirect, foreseen or unforeseen, and however arising — including in contract, tort (including negligence), misrepresentation, restitution, statute or otherwise) arising from or relating to:
(a) any failure by you (or any Authorised User or other person) to ensure that the conditions for processing personal data under Applicable Data Protection Laws are satisfied in respect of any Audio Recording or Transcript (including any failure to obtain or maintain any consent, notice, authorisation or lawful basis required for the Product Improvement Purposes licence in clause 12.3);
(b) the accuracy, completeness, suitability, fitness for purpose, timeliness or quality of any Audio Recording, Transcript, AI-generated suggestion, structured generation output, or speaker-role identification produced by SmartPlans;
(c) any decision you (or any Authorised User, Care Recipient or other person) make based on, or any failure to review, amend or reject, any Audio Recording, Transcript or AI-generated suggestion before populating, accepting or relying on it for the purposes of any Care Plan or care decision;
(d) any consequences of relying on a Transcript, AI-generated suggestion or any other SmartPlans output for any clinical decision, regulatory submission, audit, inspection, complaint, or evidential purpose;
(e) any deletion, loss, corruption or unavailability of any Audio Recording or Transcript pursuant to these SmartPlans Terms (whether by you, automatically or by us), except to the extent the deletion or loss constitutes a breach by us of Applicable Data Protection Laws or is otherwise non-excludable under clause 13.7 of the main Terms;
(f) any act or omission we make at your direction, or at the direction of any Authorised User or Care Recipient;
(g) any claim, action, allegation or proceeding brought against us by any data subject (or any regulator, on behalf of or in relation to a data subject) arising from or relating to your or any Authorised User’s: (i) failure to obtain or maintain any consent, notice, authorisation or lawful basis required under Applicable Data Protection Laws (including in respect of the Product Improvement Purposes licence in clause 12.3); (ii) failure to comply with clauses 5.1 to 5.7 and 5.9 of these SmartPlans Terms, the Acceptable Use Policy or the Acceptable Customer Behaviour Policy; or (iii) misuse of any Audio Recording, Transcript or AI-generated suggestion. This includes claims for misuse of private information, breach of confidence, defamation, harassment, discrimination, and any analogous claim under any applicable law;
(h) any regulatory investigation, enforcement action, fine, censure, sanction or other penalty imposed on us as a direct or indirect consequence of any breach by you (or any Authorised User) of clauses 5.1 to 5.7 and 5.9 of these SmartPlans Terms, the Acceptable Use Policy, the Acceptable Customer Behaviour Policy, the SmartPlans DPA, or any Applicable Data Protection Laws;
(i) any allegation or finding of unlawful bias, unlawful discrimination, unequal treatment, breach of the Equality Act 2010 or any analogous legislation, arising out of or relating to any AI-generated suggestion or any use of SmartPlans, except to the extent caused by our wilful misconduct in the design of SmartPlans;
(j) any claim brought by any person whose voice or personal data was captured by an Audio Recording (including a Care Recipient, a family member, a visitor, an Authorised User, or any other person) in circumstances where you did not have, or failed to maintain, the necessary consent or authorisation under Applicable Data Protection Laws or any other applicable law;
(k) any unavailability, failure, defect or malfunction of any third-party service (including any AI provider, cloud-hosting provider, mobile network or device) used in connection with SmartPlans, except to the extent caused by our wilful misconduct;
(l) any claim, loss or harm arising from the use of SmartPlans for any purpose other than care planning (including any use that breaches clause 5.7 of these SmartPlans Terms or the Acceptable Use Policy);
(m) any inability of yours to access, use or rely on any Audio Recording, Transcript or AI-generated suggestion at any time, including during any planned or unplanned maintenance, upgrade, change or suspension of SmartPlans;
(n) any downloaded Audio Recording or Transcript (or any copy of it) once the download is complete, in accordance with clause 6.3; and
(o) any use of SmartPlans (by you, any Authorised User, any Care Recipient or any other person) contrary to the SmartPlans Guidance (as defined in clause 5.9), and any consequence, output or further use that flows from any such non-compliant use.
12. Intellectual property
12.1 Our IP. All intellectual property rights in SmartPlans, the SmartPlans Services and any technology, models or content used by us in providing SmartPlans belong to us or our licensors. Clause 10.3 of the main Terms applies in respect of SmartPlans.
12.2 Customer Data. Audio Recordings, Transcripts and Care Plans are Customer Data and belong to you (or your Authorised Users, or your respective licensors, as applicable). The licence in clause 11.1 of the main Terms (worldwide, non-exclusive, royalty-free licence to enable our provision of the Services) extends to Audio Recordings, Transcripts and Care Plans for the duration of the SmartPlans Subscription Term and any Renewal Period. The licence in clause 11.1 of the main Terms applies to SmartPlans Customer Data as so extended.
12.3 Product improvement licence (non-anonymised data).
(a) Licence. You grant us a worldwide, non-exclusive, royalty-free, perpetual, irrevocable licence to store, use, reproduce, display, transmit, modify and process the SmartPlans Customer Data (including Audio Recordings, Transcripts, Care Plans and any other materials transmitted via SmartPlans) on a non-anonymised basis, for the purpose of validating, fine-tuning, evaluating and improving our products and services (including SmartPlans and any other similar products or services we offer from time to time) (the “Product Improvement Purposes”).
(b) Birdie’s role. Birdie acts as a separate, independent controller (and not as a joint controller with the customer within the meaning of UK GDPR Article 26) in respect of the personal data processed for the Product Improvement Purposes. Birdie has full controller obligations under Applicable Data Protection Laws in respect of those purposes. For the Product Improvement Purposes, the SmartPlans DPA does not apply.
(c) Consent. For the Product Improvement Purposes, Birdie will rely on consent (as defined by Article 6(1)(a) of the UK GDPR) and explicit consent (as defined by Article 9(2)(a) of the UK GDPR) as the respective lawful basis and condition for processing of special category data. This consent is separate to any consents that you deem necessary to use the SmartPlans Services for the purpose of direct care. You agree to gain consent for the Product Improvement Purposes from all data subjects before recording using the SmartPlans Services, and indicate to Birdie that this consent has been provided by using the checkbox provided within the SmartPlans Services user interface. You agree not to use the SmartPlans Services unless every data subject present during recording gives valid consent to Birdie’s Product Improvement Purposes. You agree to subsequently gain consent from any data subject that later enters the recording space once recording has commenced. Where a data subject lacks capacity to consent (as defined in clause 5.4), you must obtain the consent of a third party with the legal right to make decisions on their behalf (e.g. under a Power of Attorney or other legal authorisation required under applicable law) for the Product Improvement Purposes. If this is not possible, you must not use the SmartPlans Services.
(d) Transparency. Birdie will publish a privacy notice explaining the processing for the Product Improvement Purposes at a clearly identified URL on its website. You agree to provide this URL, or an accurate export of the information contained at that URL at the time of recording, to data subjects.
(e) Data subject rights. Birdie will be responsible for handling any requests from individuals to exercise their rights in relation to the use of their personal data for the Product Improvement Purposes (including their right to withdraw consent for their personal data to be used for the Product Improvement Purposes). You agree to notify Birdie of such a request within three working days of receipt. You will remain responsible for handling any requests from individuals to exercise their rights in relation to the underlying use of the SmartPlans Services, and Birdie will continue to assist you as a Processor, as per the SmartPlans DPA.
(f) Customer indemnity. The indemnity in clause 5.3 of these SmartPlans Terms applies to any breach of the requirements in sub-clauses (c), (d) and (e) above.
(g) Survival. This clause 12.3 (and the licence granted under it) survives termination of SmartPlans and termination of the Agreement.
12.4 Feedback. If you (or any of your Authorised Users) give us any feedback, suggestion, comment or idea about SmartPlans, you assign to us all intellectual property rights in that feedback and we may use it for any purpose without further attribution, compensation or restriction. You waive (and procure that your Authorised Users waive) all moral rights in respect of that feedback to the extent permitted by law. This clause 12.4 supplements the main Terms in respect of SmartPlans.
12.5 Use of trade name and trade marks. Clause 11.3 of the main Terms (right to use customer trade name and trade marks; reference partner listings; marketing documentation) applies to your use of SmartPlans.
13. Order of precedence
13.1 In the event of conflict between the documents that govern your use of SmartPlans, the documents take precedence in the following order: (a) the SmartPlans DPA; (b) the SmartPlans Order Form (and any add-on Order Form for SmartPlans); (c) these SmartPlans Terms; (d) the main Terms; (e) the Acceptable Use Policy; and (f) the Acceptable Customer Behaviour Policy.
14. Acceptance and contact
14.1 By accepting your SmartPlans Order Form (whether by checkbox, signature, or other written confirmation), you agree to be bound by these SmartPlans Terms, the main Terms, the Acceptable Use Policy, the Privacy Notice, the Acceptable Customer Behaviour Policy (available at https://www.birdie.care/acceptable-customer-behaviour-policy) and the SmartPlans DPA.
14.2 To contact us about SmartPlans, please email support@birdie.care (in accordance with clause 18.11 of the main Terms).
Annexure 1 — SmartPlans DPA
VARIABLES
Parties
You, as defined in the Main Agreement, will act as the Controller.
Birdie Care Services Limited, registered in England and Wales (Company No. 10863579) (“Birdie”), will act as the Processor.
Main Agreement
The document entered into by the parties entitled “SmartPlans Additional Product Terms”, to which this document is appended.
Term
This DPA will commence on the Effective Date of the Main Agreement and will continue for the term of the Main Agreement.
Breach Notification Period
Without undue delay after becoming aware of a personal data breach.
Sub-Processor Notification Period
Three days before the new sub-processor is granted access to Personal Data.
Liability Cap
For the avoidance of doubt, this DPA will be subject to the liability limitations and exclusions of liability in the body of the Main Agreement.
Governing Law and Jurisdiction
England and Wales.
Data Protection Laws
All laws and regulations which apply to the processing of Personal Data in the United Kingdom (UK).
This includes the:
• UK General Data Protection Regulation (UK GDPR)
• Data Protection Act 2018
• Privacy and Electronic Communications (EC Directive) Regulations 2003
each as amended from time to time.
Services related to processing
SmartPlans Services
Duration of processing
For the Term of this DPA
Nature and purpose of processing
Processing of audio recordings to generate transcripts and structured suggestions for care plans, and to present suggestions to authorised humans for review and acceptance.
SmartPlans will utilise voice biometrics for ‘speaker diarisation’ (the process of partitioning audio into segments based on speaker identity, answering "who spoke when").
Personal Data
• Audio recordings of care planning meetings.
• Voice biometrics for the purpose of speaker recognition may be considered Special Category Data.
• Transcripts of care planning meetings.
• Care plans created by the Controller as a result of the recorded meetings.
• AI-generated care plans (including summaries, tasks, suggestions, etc.), created from the transcripts.
Data subjects
• Customer employees (care manager or assessor)
• Care recipients
• Associates (e.g. family, friends) of care recipients (if present during the care planning meetings).
Special provisions
None
Transfer Mechanism
N/A
ANNEXURE 1A
Security measures. Technical and organisational measures to ensure the security of Personal Data
https://www.birdie.care/security-by-design
ANNEXURE 1B
Sub-processors. Current sub-processors
https://www.birdie.care/terms/sub-processors
SmartPlans-specific Sub-processors will be marked in the above list as such.
TERMS
1. What is this agreement about?
1.1 Purpose. The parties are entering into this Data Processing Agreement (DPA) for the purpose of processing Personal Data (as defined above).
1.2 Definitions. Under this DPA:
(a) Adequate country means a country or territory that is recognised under Data Protection Laws as providing adequate protection for processing Personal Data.
(b) Controller, data subject, personal data, personal data breach, process/processing, Processor and supervisory authority have the same meanings as in the Data Protection Laws.
(c) Sub-processor means another processor engaged by the Processor to carry out specific processing activities with Personal Data.
1.3 Scope of Agreement. This DPA is limited solely to the processing of Personal Data in the SmartPlans Services as described in the Variables table. For all other processing of Personal Data by Birdie, the standard DPA shall continue to apply.
1.4 Neither this DPA, nor the standard DPA, shall apply to Birdie’s processing of personal data for the Product Improvement Purposes defined in clause 12.3 of the SmartPlans Additional Product Terms. Birdie remains a separate and independent controller for the Product Improvement Purposes.
2. Each Party’s Obligations
2.1 Your Obligations. You instruct Birdie to process Personal Data in accordance with this DPA, and are responsible for:
(a) informing Birdie whether you are a Controller of the Personal Data, or a Processor to another Party.
(b) Where you are a Controller, you warrant that all notices have been provided and all consents, licences and legal bases required to allow Birdie to process Personal Data have been obtained. You are solely responsible for ensuring that the collection and processing of the Personal Data complies with the Data Protection Laws.
(c) Where you are a Processor to another Party, you warrant:
(i) that you are authorised by the Controller to appoint Birdie as a sub-processor,
(ii) that you will communicate any applicable instructions and obligations from the Controller to Birdie in a timely manner,
(iii) that any instructions you give to Birdie in relation to the Personal Data have been authorised by the Controller.
2.2 Birdie’s Obligations. Birdie will:
(a) only process Personal Data in accordance with this DPA, the Main Agreement, and your instructions (unless legally required to do otherwise),
(b) not sell, retain or use any Personal Data for any purpose other than as permitted by this DPA and the Main Agreement,
(c) inform you immediately if (in its opinion) any instructions infringe Data Protection Laws,
(d) use the technical and organisational measures described in Annexure 1A when processing Personal Data to ensure a level of security appropriate to the risk involved,
(e) notify you of a personal data breach within the Breach Notification Period and provide assistance as required under Data Protection Laws in responding to it,
(f) ensure that anyone authorised to process Personal Data is committed to confidentiality obligations,
(g) without undue delay, provide you with reasonable assistance with data protection impact assessments, responses to data subjects’ requests to exercise their rights under Data Protection Laws, and engagement with supervisory authorities,
(h) if requested, provide you with information necessary to demonstrate its compliance with obligations under Data Protection Laws and this DPA,
(i) allow for audits at your reasonable request, provided that audits are limited to once a year and during business hours except in the event of a personal data breach, and
(j) comply with the requirements of clause 6 of the Main Agreement with respect to the retention, return and deletion of the personal data.
2.3 Warranties. The Parties warrant that they and any staff and/or subcontractors will comply with their respective obligations under Data Protection Laws for the Term.
3. Use of Sub-processors
You authorise Birdie to engage other processors (referred to in this section as sub-processors) when processing Personal Data. Birdie’s sub-processors are listed in Annexure 1B.
3.1 Sub-processor requirements. Birdie will:
(a) require its sub-processors to comply with equivalent terms as Birdie’s obligations in this DPA,
(b) ensure appropriate safeguards are in place before internationally transferring Personal Data to its sub-processor,
(c) be liable for any acts, errors or omissions of its sub-processors as if they were a party to this DPA, and
(d) ensure that Sub-processors shall not use the Personal Data for any purpose other than those stated in this DPA. For the avoidance of doubt, this includes a prohibition on using the Personal Data for model training purposes.
3.2 Notifications. Birdie may appoint new sub-processors provided that they notify you in writing, in accordance with the Sub-Processor Notification Period.
3.3 Objections. You may reasonably object in writing to any future sub-processor. If the parties cannot agree on a solution within a reasonable time, either party may terminate this DPA.
4. International Personal Data Transfers
4.1 Instructions. Birdie may transfer data outside the UK where:
(a) a UK data adequacy decision exists for the relevant destination country, or
(b) it has implemented a Transfer Mechanism compliant with Data Protection Laws, which for example may include a derogation pursuant to Article 49 of the GDPR or an appropriate Transfer Mechanism under UK GDPR such as an International Data Transfer Agreement, or
(c) transfer is made to a sub-processor acting as an employer-of-record for Birdie personnel, and individuals with access are operating directly and exclusively under Birdie’s governance and controls.
4.2 Transfer mechanism. Where a party to this DPA is located outside the UK, the EEA or an adequate country and receives Personal Data:
(a) that party will act as the data importer,
(b) the other party is the data exporter, and
(c) the relevant Transfer Mechanism will apply.
4.3 Additional measures. If the Transfer Mechanism is insufficient to safeguard the transferred Personal Data, the data importer will promptly implement supplementary measures to ensure Personal Data is protected to the same standard as required under Data Protection Laws.
4.4 Disclosures. Subject to the terms of the relevant Transfer Mechanism, if the data importer receives a request from a public authority to access Personal Data, it will (if legally allowed):
(a) challenge the request and promptly notify the data exporter about it, and
(b) only disclose to the public authority the minimum amount of Personal Data required and keep a record of the disclosure.
5. Other Important Information
5.1 Survival. Any provision of this DPA which is intended to survive the Term will remain in full force.
5.2 Order of precedence. In case of a conflict between this DPA and other relevant agreements, they will take priority in this order:
(a) Transfer Mechanism
(b) DPA
(c) Main Agreement (including without limitation the Order and Acceptable Use Policy).
5.3 Notices. Formal notices under this DPA must be in writing. The Parties agree that notices by email are deemed sufficient.
5.4 Governing law and jurisdiction. The Governing Law applies to this DPA and all disputes will only be litigated in the courts of the Jurisdiction.
