SmartTools Module

A1. Application

A1.1 This Module (the "SmartTools Module") applies to every SmartTool, present and future. It applies to each SmartTool in full unless, and only to the extent that, the Service Schedule for that SmartTool expressly disapplies or modifies a paragraph of this Module. It forms part of the Core Terms and Conditions and applies in addition to the Core Terms. Where this Module and the Core Terms conflict, this Module prevails in respect of SmartTools. Where a Service Schedule and this Module conflict, the Service Schedule prevails in respect of that SmartTool, subject to clause 2.5(d) of the Core Terms.

A1.2 Capitalised terms not defined in this Module have the meanings given in the Core Terms. References to clauses are to clauses of the Core Terms and references to paragraphs are to paragraphs of this Module.

A1.3 A SmartTool becomes available to you, and its Service Schedule binds you, in the circumstances described in clause 2.5(b) of the Core Terms. We may make a SmartTool visible in the Platform before you have enabled it; visibility alone does not bind you.

A1.4 Survival. Paragraphs A4.5, A5 and A9 survive termination of your subscription for SmartTools and of the Agreement.

A2. Definitions

"Credit-Based SmartTool" means a SmartTool whose Service Schedule states that its Charging Basis is Credit-Based, so that use of it consumes SmartCredits;

"Credit Commitment" means the minimum number of SmartCredits per month that you have committed to under your Order Form (the SmartCredits equivalent of the minimum quantity in your Minimum Subscription Fee);

"Credit Price" means the price per SmartCredit within your Credit Commitment, as set out in your Order Form;

"Output" means any content generated by a SmartTool from a Recording or other Customer Data, including transcripts, speaker attribution, summaries, suggested care-plan content, action points and similar material;

"Pay-for-use Plan" means a charging model under which you have no Credit Commitment and pay for SmartCredits consumed each month at the Variable Credit Rate;

"Recording" means any audio (or, where a Service Schedule so provides, video or other media) captured and saved using a SmartTool, including any recording that is later deleted;

"Separately Charged SmartTool" means a SmartTool whose Service Schedule states a Charging Basis other than Credit-Based (for example per User, per Care Recipient, per item processed or a fixed fee), in which case the pricing in the Service Schedule and your Order Form applies and it does not consume SmartCredits;

"SmartCredit" means the unit of consumption for Credit-Based SmartTools. One SmartCredit equals one hour of Recording time (measured in accordance with paragraph A7.5), unless the Service Schedule for a SmartTool states a different conversion rate for that SmartTool;

"SmartTool" means any product, feature or service that we designate as a SmartTool in a Service Schedule and include in the list of current SmartTools published at www.birdie.care/terms/smarttools from time to time, and "SmartTools" means all of them together;

"SmartTools Guidance" means the guidance, instructions, training materials and other communications we make available to you or your Authorised Users from time to time about the safe and effective use of a SmartTool;

"Subscription Plan" means a charging model under which you have a Credit Commitment;

"Transcript" means a text transcription of a Recording generated by a SmartTool;

"Unused Credits" means, for any month under a Subscription Plan, the amount (if any) by which your Credit Commitment exceeds the SmartCredits you consumed across all Credit-Based SmartTools in that month, as adjusted under paragraph A7.3; and

"Variable Credit Rate" means the price per SmartCredit consumed above your Credit Commitment in a month (or, under a Pay-for-use Plan, for every SmartCredit consumed), as set out in your Order Form.

A3. Nature of SmartTools

A3.1 AI-assisted tools. Each SmartTool uses artificial intelligence, including third-party speech-to-text and language-model providers, to produce Outputs from Recordings and other Customer Data. The Service Schedule describes what each SmartTool does. Clause 4.9 of the Core Terms applies to every Output.

A3.2 Human review. Outputs are provided for review by your Authorised Users. You are responsible for reviewing each Output, exercising professional judgement, and deciding whether and how to use it. Where a Service Schedule states that a human-review gate applies, the SmartTool will not write an Output into a care record or other record on the Platform unless an Authorised User expressly accepts it, and we will give you at least 30 days' written notice before changing that behaviour.

A3.3 No automated decision-making with legal or similarly significant effect. Because Outputs require review and acceptance by your Authorised Users before they are relied on, no SmartTool on its own makes a decision about any individual that has a legal or similarly significant effect on them within the meaning of UK GDPR Article 22. You must not configure your processes so that an Output is acted on without human review.

A3.4 Not a medical device. SmartTools are administrative aids. They are not intended by us to be medical devices under the Medical Devices Regulations 2002 or any analogous framework, and are not designed for, or to be relied on for, any diagnostic, therapeutic or other clinical decision-making purpose. You remain responsible for the content of every care record and every decision taken.

A3.5 Availability. Clause 4.6 of the Core Terms is replaced, for SmartTools, by this paragraph. SmartTools are provided on an 'as available' basis. They depend on third-party AI and hosting services and may be unavailable from time to time. We make no commitment as to the availability or uptime of any SmartTool and may make a SmartTool unavailable, in whole or in part, at any time. Clauses 4.3 to 4.5 of the Core Terms continue to apply.

A3.6 Device permissions. SmartTools may require microphone, camera, local storage, calendar or network permissions on the devices used. You are responsible for granting and managing those permissions in line with your own security policies.

A3.7 AI regulation. We will comply with laws governing the use of artificial intelligence that apply to us. You will give us reasonable cooperation to support that compliance, including following the SmartTools Guidance, providing accurate information about the people whose data a SmartTool processes where we reasonably ask for it, and reporting to us any incident or harm you reasonably believe may be attributable to an Output.

A4. Recording lawfully: your responsibilities

A4.1 You decide to record, and you are the controller. You and your Authorised Users decide whether, when and whom to record. You are the controller of every Recording, Transcript and Output. Before any Recording is made, and for as long as it is processed, you must ensure that all conditions for processing the personal data of each person whose voice, image or information is captured are satisfied under Applicable Data Protection Laws and any other applicable law. Those people may include Care Recipients, their family and visitors, your staff, and third parties.

A4.2 In-app prompt. Before recording, the SmartTool asks the Authorised User to confirm that your own checks have been done. The prompt is a reminder to your staff. It does not obtain consent from anyone, does not transfer any responsibility to us, and your confirmation of it is not evidence that the conditions in paragraph A4.1 were met. Where a Service Schedule says the prompt blocks recording until confirmed, that is a product safeguard and does not change this paragraph.

A4.3 Lawful basis, special category data and capacity. Without limiting paragraph A4.1, you must ensure that: (a) a lawful basis under UK GDPR Article 6 and, where health or other special category data is captured, a condition under UK GDPR Article 9 and the Data Protection Act 2018 apply to each Recording; (b) where you rely on consent, it is freely given, specific, informed and recorded, and you have considered whether consent is appropriate where there is an imbalance of power (for example between an employer and employee); (c) where a person lacks capacity to consent, you have identified a lawful basis that does not depend on their consent or have obtained authority from an attorney or deputy with the relevant power, with regard to the Mental Capacity Act 2005, and you document this; and (d) where you record your staff, you comply with the Information Commissioner's guidance on monitoring workers and with your obligations as an employer.

A4.4 Transparency. You are responsible for telling the people you record what you are recording, why, that a third-party processor (Birdie) and its sub-processors will process the Recording on your behalf, and how they can exercise their rights.

A4.5 Warranty and indemnity. You warrant that paragraphs A4.1, A4.3 and A4.4 are complied with for every Recording. You will defend, indemnify and hold us harmless against all claims, actions, proceedings, losses, damages, expenses and costs (including court costs, 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, including any claim by a person who was recorded. This indemnity is in addition to clause 13.1 of the Core Terms.

A4.6 Objections and withdrawal. If a person objects to being recorded, withdraws consent or exercises any right in respect of a Recording, you must stop recording that person, decide how to respond as controller, and delete any Recording, Transcript or Output you are no longer entitled to hold using the tools we provide. We will assist you as processor in accordance with the Applicable DPA.

A4.7 Data minimisation. You must only record where recording is necessary for the purpose described in the Service Schedule, and must not use a SmartTool to record conversations outside that purpose.

A4.8 SmartTools Guidance. You must use each SmartTool, and procure that your Authorised Users use it, only in accordance with the SmartTools Guidance. You must ensure that each Authorised User has received and understood the SmartTools Guidance for their role before using a SmartTool. We may update the SmartTools Guidance and will notify you of material updates; you must update your practices and training within 30 days of notice. Clause 5.11 of the Core Terms applies to the SmartTools Guidance.

A5. Recordings, Transcripts and Outputs: lifecycle

A5.1 Recordings. Recordings are retained on our systems for the retention period stated in the Service Schedule (60 days from the date the Recording is saved unless the Service Schedule states otherwise), after which they are automatically and irreversibly deleted. Your administrators may delete a Recording earlier through the Platform. We do not retain Recordings beyond that period for any purpose of our own.

A5.2 Transcripts and Outputs. Transcripts and Outputs are retained for as long as your subscription under the Core Terms is in force, unless you delete them earlier through the Platform. They are not deleted when your subscription for a SmartTool alone ends. Content you have accepted into a care record or other Platform record becomes part of that record and is governed by the Core Terms.

A5.3 Downloads. Your Authorised Users may download Recordings, Transcripts or Outputs where the SmartTool allows. Once downloaded, the copy is outside our systems and outside this Module. You are solely responsible for its security, retention, use and deletion, and we have no liability for it.

A5.4 On termination of a SmartTool. When your subscription for a SmartTool ends: (a) you lose access to that SmartTool and to Recordings held within it, so you should download anything you need before the end date; (b) Recordings continue to be deleted on the rolling basis in paragraph A5.1 and we may delete them sooner; and (c) Transcripts, Outputs and Platform records remain available under paragraph A5.2. On termination of the Agreement as a whole, clause 7.9 of the Core Terms applies.

A6. Data protection

A6.1 Processor only. Clause 11 of the Core Terms applies to SmartTools. Quality assurance, accuracy monitoring and improvement of SmartTools are carried out as your processor under the instructions in the Applicable DPA.

A6.2 Applicable DPA. The Data Processing Agreement is the Applicable DPA for every SmartTool unless the Service Schedule for a SmartTool names a different data processing agreement for that SmartTool. The Applicable DPA includes the description of processing for each SmartTool and the list of sub-processors (including AI providers), which we may update in accordance with its terms.

A6.3 No model training. We will not use Recordings, Transcripts or Outputs to train, fine-tune or otherwise improve any artificial intelligence or machine-learning model, and we will contractually prohibit our sub-processors from doing so. Clause 14.3 of the Core Terms (anonymised data) is the only exception.

A6.4 Voice data. Some SmartTools process voice characteristics temporarily to attribute speech to speakers within a Recording. This processing is described in the Applicable DPA. We do not build or retain voice profiles of individuals beyond the processing of the relevant Recording.

A7. Fees for SmartTools

A7.1 Charging Basis. Each Service Schedule states whether a SmartTool is a Credit-Based SmartTool or a Separately Charged SmartTool. A Credit-Based SmartTool is charged by the hour and draws on your single pool of SmartCredits. A Separately Charged SmartTool has its own pricing (for example per User or a fixed fee), set out in its Service Schedule and your Order Form, and does not draw on SmartCredits. This paragraph A7 applies to Credit-Based SmartTools. A Separately Charged SmartTool is charged as set out in its Service Schedule and your Order Form, and clause 6 of the Core Terms applies to it except as that Service Schedule states otherwise.

A7.2 Two charging models. Your Order Form will specify either:

(a) a Subscription Plan, under which you commit to a Credit Commitment each month at the Credit Price (payable whether or not you use the SmartCredits), with consumption above the Credit Commitment charged at the Variable Credit Rate, and with Unused Credits rolling forward as set out in paragraph A7.3; or

(b) a Pay-for-use Plan, under which there is no Credit Commitment and no fixed term, and you pay for the SmartCredits you consume each month at the Variable Credit Rate.

For SmartTools, the Credit Commitment multiplied by the Credit Price is your Minimum Subscription Fee, and the Variable Credit Rate is your Variable Rate, for the purposes of clause 6 of the Core Terms.

A7.3 One pool of SmartCredits. Under a Subscription Plan:

(a) SmartCredits consumed by every Credit-Based SmartTool you have enabled are added together each month and counted against a single Credit Commitment. You do not need a separate commitment for each SmartTool.

(b) Where your consumption in a month exceeds your Credit Commitment, the excess is first met from any Unused Credits accrued in earlier months of the same Subscription Term or Renewal Period (oldest first), and only then charged at the Variable Credit Rate. Unused Credits used in this way carry no further charge because the Credit Price has already been paid.

(c) Unused Credits expire automatically, without refund or credit, at the end of the Subscription Term or Renewal Period in which they accrued. They have no monetary value, cannot be redeemed, and cannot be transferred to another customer, branch or account unless your Order Form says otherwise.

(d) You cannot draw on future months' Credit Commitment or unaccrued Unused Credits to avoid a Variable Credit Rate charge.

(e) Clause 6.1(b) of the Core Terms (no rollover) is modified for SmartTools to the extent set out in this paragraph A7.3.

A7.4 Conversion rates. One SmartCredit equals one hour of Recording for every Credit-Based SmartTool unless the Service Schedule for a SmartTool states a different conversion rate (for example, where a SmartTool processes documents rather than audio, or where the cost of providing it differs materially). Any conversion rate stated in a Service Schedule applies to consumption of that SmartTool from the date the Service Schedule binds you, or from the date of any change notified under clause 2.5(e).

A7.5 Measuring consumption. Consumption is measured by the total Recording time saved in each billing month across all Credit-Based SmartTools, rounded up to the nearest 0.1 of an hour, converted to SmartCredits at the applicable conversion rate. All Recordings saved during the month count, including Recordings that are later deleted. Audio discarded before it is saved does not count. The resulting fee is rounded to the nearest penny.

A7.6 Billing. SmartTools fees are invoiced monthly in arrears unless your Order Form specifies otherwise. Clause 6.2 of the Core Terms (payment terms and late payment) and clauses 6.4 and 6.5 (disputed invoices and no set-off) apply.

A7.7 Fee changes. Clauses 6.3 (changes on renewal) and 6.6 (annual fee adjustment) of the Core Terms apply to SmartTools fees.

A7.8 Changing your Credit Commitment. You may increase your Credit Commitment at any time by Written Confirmation, with effect from the next billing month. You may reduce your Credit Commitment only with effect from the start of a Renewal Period, by giving notice in accordance with paragraph A8.3, unless your Order Form says otherwise.

A8. Term and termination of SmartTools

A8.1 Start. Your subscription for SmartTools starts on the date stated in your Order Form or, if none, the date you first enable or use a SmartTool.

A8.2 Subscription Plan term. Unless your Order Form says otherwise, a Subscription Plan runs until the end of your then-current Subscription Term or Renewal Period for the main Birdie product, and then renews alongside it under clause 7.2 of the Core Terms. Enabling an additional Credit-Based SmartTool during the term does not start a new term; it simply draws on the same pool for the remainder of the term.

A8.3 Notice for a Subscription Plan. Clause 7.3 of the Core Terms applies to a Subscription Plan, so either party may end it by giving at least 30 days' written notice before the end of the then-current Subscription Term or Renewal Period. A notice to terminate the main Birdie product does not terminate SmartTools, and a notice to terminate SmartTools does not terminate the main Birdie product, unless it expressly says so. If the main Birdie product terminates, your SmartTools subscription ends on the same date.

A8.4 Pay-for-use Plan. A Pay-for-use Plan has no fixed term and does not renew. Either party may end it by written notice received at least 10 days before the end of a calendar month, with effect from the first day of the following month. If notice is received later, it takes effect from the first day of the month after that. If no Recording is made under a Pay-for-use Plan for three consecutive months, we may end it on 14 days' written notice. Clauses 7.2 and 7.3 of the Core Terms do not apply to a Pay-for-use Plan.

A8.5 Enabling and disabling individual SmartTools. You may enable an additional SmartTool as described in clause 2.5 of the Core Terms. You may ask us to disable a particular SmartTool at any time on written notice; this does not reduce your Credit Commitment or end your Subscription Plan, and your remaining SmartTools continue to draw on the pool.

A8.6 Other termination rights. Clauses 7.4 to 7.8 of the Core Terms apply to SmartTools. For the purposes of clause 7.8(a), the fees payable on early termination of a Subscription Plan are the Credit Commitment multiplied by the Credit Price for each remaining month of the then-current term.

A9. Liability for SmartTools

A9.1 SmartTools cap. Subject to clause 12.5 of the Core Terms, our total aggregate liability arising from or in connection with SmartTools in any 12-month period is limited to the total fees paid by you for SmartTools in the 12 months preceding the first event giving rise to the liability. This limit operates within, and does not increase, the overall cap in clause 12.3 of the Core Terms.

A9.2 Additional matters outside our liability. Subject to clause 12.5 of the Core Terms, and in addition to clause 12.2 of the Core Terms, we are not liable for any loss, cost, claim, fine or damage arising from or relating to:

(a) any failure by you to satisfy the conditions in paragraph A4 before or during any Recording, or any claim by a person who was recorded;

(b) the accuracy, completeness, speaker attribution, suitability or quality of any Recording, Transcript or Output, or any decision taken, or action omitted, in reliance on one;

(c) the use of any Transcript or Output for a clinical, regulatory, employment, disciplinary, audit, inspection, complaint or evidential purpose;

(d) the deletion or unavailability of any Recording, Transcript or Output in accordance with this Module;

(e) any Recording, Transcript or Output once downloaded;

(f) the unavailability, failure or malfunction of any third-party AI, speech-to-text, hosting, telecommunications or device service, except where caused by our wilful misconduct;

(g) any allegation of bias, discrimination or breach of the Equality Act 2010 arising from an Output, except where caused by our wilful misconduct;

(h) any regulatory investigation, enforcement, fine or penalty imposed on us as a result of your breach of paragraph A4, the SmartTools Guidance, the Acceptable Use Policy or Applicable Data Protection Laws; or

(i) any use of a SmartTool contrary to the SmartTools Guidance or outside the purpose stated in its Service Schedule.