Last updated: August 2024

The following definitions and interpretations apply in these terms and conditions:

1.1. The Licence Term will commence on the first Billing Date and will continue in effect for the duration of the Licence Term as detailed in the Order Form.

1.2. In consideration of the Licence Fee paid by the Care Provider in accordance with Clause 2.1, Nourish grants the Care Provider, together with every member of the Care Provider Group, a non-exclusive, non-transferable (except for transfers made within the Care Provider Group) Licence for the duration of the Licence Term and, if applicable, the Extended Licence Term, to use the Care Solution Services on the Terms set out in this Contract.

1.3. If neither Party serves notice on the other Party, at least thirty (30) calendar days’ prior to the expiry of the Licence Term, or any Extended Licence Term, the Licence Term shall be renewed for a period of 12 months and the Licence Fee shall be payable on these Terms.

1.4. The Licence Fee is calculated based on the Care Provider’s total Capacity as verified by the relevant regulatory body where applicable or as detailed in the Order Form. Should the Care Provider increase the registered Capacity of beds or Number of Licences used, they must notify Nourish in writing within thirty (30) calendar days of this increase. Nourish reserves the right to adjust the billing accordingly. If the Care Provider fails to notify Nourish within thirty (30) calendar days, Nourish reserves the right to back date payment from the increase for the additional fees.

2.1. Care Provider agrees to pay the Fees in accordance with the Terms specified in each Order Form and without deduction or set off. The Fees are non-refundable.

2.2. All Fees and other charges are exclusive of VAT which will be added at the appropriate rate.

2.3. Nourish have the right to increase all Fees annually. For the avoidance of doubt, the annual Licence Fees will not be reduced for the Licence Term. The annual Licence Fees will be increased annually on the anniversary date of the commencement of the Licence Term and will be subject to an increase of 5% or the CPI (Consumer Prices Index), whichever is the highest.

2.4. We reserve the right to suspend the supply of and / or access to the Platform to the Care Provider where any undisputed amounts owed by the Care Provider to Nourish are overdue and remain overdue thirty (30) calendar days after Nourish having provided the Care Provider written notification (which may be by email) of such default, until all such amounts have been paid in full (together with any accrued interest). Interest on late payments shall be charged by Nourish at the rate of 4% per month above the base lending rate as recommended from time to time of the Bank of England, accruing on a monthly basis and compounded monthly until payment is made, whether before or after any judgment.

2.5. All Fees must be paid via the Direct Debit payment system and the Care Provider agrees to complete the Direct Debit mandate. The Care Provider recognises and agrees that by completing a Direct Debit Instruction, Nourish are authorised to debit the Fees from the Care Provider’s nominated account.

2.6. Where the Implementation Fee has not been paid by the Care Provider to Nourish prior to the Implementation Date for a specified Service in accordance with Clause 2.4, Nourish shall have no obligation to deliver the Hardware to the Delivery Location and Nourish shall be entitled to recover payment for any costs incurred in the provision of Implementation Services supplied for that Service.

2.7. Hardware and Services will not be refundable after the order has been placed with the exception of Training which may be refunded if cancelled more than five (5) Business Days prior to the booked Training date.

2.8 Where the Care Provider uses SMS as part of their Services with Nourish, Nourish reserve the right to charge for this usage. If the Care Provider is on the SMS starter bundle and is found to have excessive use, Nourish reserve the right to review these SMS volumes periodically and move the Care Provider onto the SMS full bundle.

2.9 Where the Care Provider uses a usage based product as part of their Services with Nourish, Nourish reserve the right to charge for this usage. Any usage not covered by an active bundle subscription, will be charged at the applicable rate and invoiced monthly in arrears. 

3.1. The Care Provider shall ensure the security and confidentiality of all log-on identifiers, including usernames, passwords or any other credentials, assigned to, or created by, the Care Provider or any User in order to access or use any Nourish Services (an ID). The Care Provider acknowledges and agrees that the Care Provider will be solely responsible for all activities that occur under such ID. The Care Provider shall promptly notify Nourish upon becoming aware of any unauthorised access to or use of any of the Services and provide all reasonable assistance to Nourish to bring an end to such unauthorised access or use. The Care Provider’s ID is for internal use only and the Care Provider may not sell, transfer or sublicense any ID to any other entity or person, except that the Care Provider may disclose ID to Users in accordance with this Contract.

3.2. The Care Provider shall ensure that each User shall, as a condition of being granted access to Nourish Services, be required by the Care Provider to acknowledge the obligations under this Contract and agree to comply with the same.

3.3. The Care Provider warrants that it shall not:

• 3.3.1. sell, resell, rent, lease or sub-license the Hardware and / or Services or attempt to do so without Nourish’s prior written authority, save where any such sale, rental or sub-license is made to another member of the Care Provider Group.

3.4. The Care Provider warrants that it shall not and shall ensure that all Users do not:

• 3.4.1. use the Hardware or the Services for any improper or unlawful purpose or in a manner which is offensive or knowingly allow others to do so;
• 3.4.2. use or permit the use of the Hardware or the Services to store or transmit infringing, libellous, or otherwise unlawful or tortious material or to store or transmit material in violation of third party privacy rights;
• 3.4.3. use the Hardware or the Services to intentionally store or transmit Malicious Code;
• 3.4.4. interfere with or disrupt the integrity or performance of the Hardware or the Services or third party data contained therein; or
• 3.4.5. attempt to gain unauthorised access to the Hardware or the Services or their related systems or networks.

3.5 The Care Provider shall ensure that, whenever using financial calculations functionality, that the Care Provider ensures that the calculations are accurate and in line with the applicable laws and regulations. Nourish accept no liability for any calculations that may be incorrect or any consequence of relying on these calculations whatsoever.

4.1. The Care Provider may instruct Nourish to send Personal Data to or receive Personal Data from another Third Party Processor through the Care Solution Services by clicking on the relevant feature in the Care Solution Services, which will constitute a written instruction to carry out the Integration of Personal Data.

4.2. Nourish will display the Integrated Data received from a Third Party Processor in customer Care Solutions but does not warrant that the Integrated Data:

• 4.2.1. is accurate, complete, reliable, secure, useful, fit for purpose or timely;
• 4.2.2. has or have been tested for use by the Care Provider or any third party; or
• 4.2.3. will be suitable for or be capable of being used by the Care Provider or any third party.

4.3. The provisions of Clause 4 shall apply to any Integrated Data as if it were Personal Data supplied directly to Nourish by the Care Provider.

4.4. The Care Provider shall not use Integrated Data to make any clinical decision in relation to the Data Subject and must refer to the data held by the Third Party Processor and use clinical judgement and take appropriate advice.

5.1. The Hardware shall be received at the Delivery Location and risk in the Hardware shall pass to the Care Provider on Delivery. Any Hardware which the Care Provider returns to Nourish shall transfer in risk to Nourish upon signed delivery by Nourish.

6.1. The Care Provider acknowledges and agrees that all Intellectual Property Rights in the Hardware and the Services are vested in and are the property of Nourish or its licensor and shall remain the same (as appropriate).

6.2. To the extent that Nourish owns the Intellectual Property Rights in the Hardware and the Services and for the duration of the Licence Term and any Extended Licence Term (if applicable) only, Nourish shall grant to the Care Provider and any User a non-exclusive, non-transferable Licence to use those Intellectual Property Rights for the sole purpose of using the Care Solution Services, the Hardware and the Services.

6.3. Where the Hardware and / or the Services comprise third party Intellectual Property Rights (being Intellectual Property Rights supplied by a third party to Nourish) then Nourish shall procure the right for the Care Provider and any User to use the third party Intellectual Property Rights in the Hardware and Services for the duration of the Licence Term only on a non-exclusive, non-transferable basis and only for the purpose of ensuring that the Hardware and Services may be used in keeping with any licence restrictions. If the Care Solution Services require a Third Party Application, then the Care Provider shall be responsible for procuring the right to use the Third Party Application.

6.4. Any Intellectual Property Rights that are created as a result of, or relating to, any consultation or discussion with, or any suggestions or feedback from, the Care Provider as part of communications between the Parties regarding the Services and more specifically, but not limited to the improvement of the Services, shall exclusively belong to Nourish.

6.5. The Care Provider shall not:

• 6.5.1. permit any third party other than a User to access or use the Hardware and / or the Services;
• 6.5.2. create derivative works based on the Hardware and / or the Services;
• 6.5.3. copy, frame or mirror any part or content of the Services;
• 6.5.4. reverse engineer the Hardware and / or the Services; or
• 6.5.5. access the Hardware and / or the Services in order to:
  • 6.5.5.1. build a competitive product or service; or
  • 6.5.5.2. copy any features, functions or graphics.
• 6.5.6. Rebrand Nourish internally or externally as anything other than Nourish Care, unless otherwise agreed in writing between the Parties.

6.6. The Care Provider shall promptly give notice in writing to Nourish if it becomes aware of:

• 6.6.1. any infringement or suspected infringement by a third party of the Intellectual Property Rights relating to the Hardware and / or the Services; and / or
• 6.6.2. any claim that the Hardware and / or the Services infringes the rights of any third party.

6.7. In respect of any matter that falls within Clause 6.6 then:

• 6.7.1. Nourish shall, in its absolute discretion, decide what action to take in respect of the matter (if any);
• 6.7.2. the Care Provider shall, at Nourish’s cost, provide Nourish with such reasonable assistance that Nourish may reasonably request and which may be required by Nourish for the purpose of prosecuting the infringement (including the use of its name in, or being joined as a party to, proceedings) provided that Nourish shall hold the Care Provider fully and effectively indemnified against any losses, costs and expenses it may incur as a result of or in connection with providing such assistance.
• 6.7.3. Nourish shall conduct and have sole control over any consequent action that it deems necessary; and
• 6.7.4. Nourish shall be entitled to all damages and other sums that may be paid or awarded as a result of that action

6.8. In respect of any matter that falls within Clause 6.6.2, the Care Provider shall provide such reasonable assistance and shall take such steps or actions as Nourish may consider reasonable or appropriate in order to enable Nourish to prevent or to terminate the infringement and / or to defend the claim (including the use of the Care Provider’s name in, or being joined as a party to, proceedings) provided that Nourish shall hold the Care Provider and any User fully and effectively indemnified against any losses, costs and expenses which the Care Provider may incur as a result of or in connection with providing such assistance or taking such steps or actions.

7.1. If this Contract is terminated all rights to use the Licence and / or the Services listed in the Order Form shall be terminated.

7.2. Without prejudice to any other rights or remedies it may have, Nourish may cancel, terminate or suspend the Contract (for the avoidance of doubt to include the provision of the Hardware and / or the Services) immediately on giving written notice to the Care Provider if:

• 7.2.1. the Care Provider commits a material breach of any of the Terms of the Contract and (if such a breach is remediable) fails to remedy that breach within thirty (30) calendar days of the Care Provider being notified in writing of the breach;
• 7.2.2. the Care Provider fails to pay any undisputed sum due under the Contract in excess of 25% of the annual Licence Fee within fourteen (14) calendar days of receipt of a notice of non-payment from Nourish;
• 7.2.3. an order is made or a resolution is passed for the winding up of the Care Provider, or circumstances arise which entitle a court of competent jurisdiction to make a winding-up order of the Care Provider;
• 7.2.4. an order is made for the appointment of an administrator to manage the affairs, business and property of the Care Provider, or documents are filed with a court of competent jurisdiction for the appointment of an administrator of the Care Provider, or notice of intention to appoint an administrator is given by the Care Provider or the directors of the Care Provider or by a qualifying floating charge holder (as defined in paragraph 14 of Schedule B1 to the Insolvency Act 1986);
• 7.2.5. a receiver is appointed of any of the Care Provider’s assets or undertaking, or circumstances arise which entitle a court of competent jurisdiction or a creditor to appoint a receiver or manager of the Care Provider, or if any other person takes possession of or sells the Care Provider’s assets;
• 7.2.6. the Care Provider makes any arrangement or composition with its creditors, or makes an application to a court of competent jurisdiction for the protection of its creditors in any way; or
• 7.2.7. the Care Provider ceases, or threatens to cease, to trade.

7.3. The Care Provider may terminate the Contract without liability to Nourish immediately on giving written notice to Nourish if Nourish commits a material breach of any of the Terms of the Contract and (if such a breach is remediable) fails to remedy that breach within thirty (30) calendar days of Nourish being notified in writing of the breach.

7.4. Either Party may terminate the Contract without liability to the other at the end of the current Licence Term provided they are given written notice of not less than thirty (30) calendar days due to expire on the expiry of the current Licence Term confirming that the Party does not want the Licence Term (or, as applicable, the Extended Licence Term) to be extended for a further period.

7.5. On termination of the Contract:

• 7.5.1. for breach by the Care Provider, the Care Provider shall immediately pay to Nourish all of Nourish’s outstanding unpaid invoices for fees and interest, in respect of Hardware and Services supplied but for which no invoice has yet been submitted, Nourish will submit an invoice covering the unpaid balance of the fees due, which shall be payable on presentation;
• 7.5.2. Nourish shall terminate all or any Security Features, access or User accounts that the Care Provider and / or User have with Nourish;
• 7.5.3. each Party shall as soon as reasonably practicable return or destroy (as directed in writing by the other Party) all Data, information, software, and other materials provided to it by the other Party in connection with the Contract including all materials containing or based on the other Party’s confidential information, except for one copy that it may use for audit purposes only, and subject to the confidentiality obligations in Clause 8.
• 7.5.4. if the Care Provider elects for destruction rather than return of the materials under Clause 7.5.3, Nourish shall as soon as reasonably practicable ensure that all Data is deleted from Nourish’s systems where possible by law;
• 7.5.5. the accrued rights of Nourish and the Care Provider shall, notwithstanding any specific provision of these Terms, survive the termination of the Contract.

7.6. If the Care Provider elects for return rather than destruction of the materials under Clause 7.5.3, and Nourish receives, no later than thirty (30) calendar days after the effective date of the termination or expiry of the Contract, a written request for the Delivery to Care Provider of the most recent back-up of the Data, Nourish shall fulfil such request, assuring that the Data is in an electronic format within thirty (30) calendar days of its receipt, provided that the Care Provider has, at that time, paid all fees which are not the subject of a bona fide dispute outstanding at, and resulting from, termination (whether or not due at the date of termination). If there are outstanding fees due to Nourish the data will be presented upon payment of all applicable fees. If the Care Provider makes no such election within that thirty (30) day period, Nourish may destroy or otherwise dispose of any of the Data in its possession.

7.7. If a Party is required or requested by any law, regulation, or government or regulatory body to retain any documents or materials that it would otherwise be required to return or destroy under Clause 7.5.3, that Party shall not be in breach of Clause 7.5.3, with respect to the retained documents or materials.

7.8. During the Term and for one (1) year thereafter, the Care Provider shall not encourage or solicit any employee or independent contractor of Nourish to leave or terminate its relationship with Nourish for any reason.

8.1. Each Party and its Affiliates shall keep in strict confidence all technical or commercial know-how, specifications, inventions, processes or initiatives which are of a confidential nature and which have been disclosed by one Party or any of its Affiliates (the “Disclosing Party”) to the other or any of the other’s Affiliates (the “Receiving Party”), its employees, agents or sub-contractors and any other confidential information concerning the Disclosing Party’s business, or affairs, the Hardware and / or the Services which the Receiving Party may obtain as a result of such disclosure. Each Party shall restrict disclosure of such confidential material to the User and to such of the Receiving Party’s Affiliates, employees, agents or sub-contractors as may need to know the same for the purpose of discharging the Receiving Party’s obligations to the Disclosing Party under the Contract, and shall ensure that its Affiliates, employees, agents or sub-contractors are subject to obligations of confidentiality corresponding to those which bind the Parties to these Terms.

8.2. All materials, Hardware, drawings, specifications and data supplied by the Disclosing Party under or in accordance with the Contract shall, at all times, be and remain as between the Disclosing Party and the Receiving Party the exclusive property of the Disclosing Party and shall be held by the Receiving Party in safe custody at its own risk and maintained and kept in good condition until returned to the Disclosing Party, and shall not be disposed of or used other than in accordance with the Disclosing Party’s written instructions or authorisation.

8.3. Nourish reserves the right to disclose information about the Care Provider, a User and or the Contract if and to the extent required by law.

8.4. The rights and obligations under this Clause 8 shall survive termination of the Contract.

The Care Provider’s attention is specifically drawn to the provisions of this Clause 9:

9.1. This Clause 9 sets out the entire financial liability of Nourish (including any liability for the acts or omissions of Nourish’s employees, agents and / or sub-contractors) to the Care Provider and / or a User in respect of:

• 9.1.1. any breach by Nourish of the Contract;
• 9.1.2. any use made by the Care Provider or any User of the Hardware, the Services and / or any other services referred to in a Supplemental Order Form and / or any part of them; and
• 9.1.3. any representation, statement or tortious act or omission (including negligence) arising under or in connection with the Contract.

9.2. Nothing in these Terms shall be construed as limiting or excluding the liability of Nourish for:

• 9.2.1. death or personal injury resulting from negligence;
• 9.2.2. any damage or liability incurred by the Care Provider as a result of fraud (including a fraudulent misrepresentation by Nourish); or
• 9.2.3. any other liability which may not be excluded by law.

9.3. Subject to Clause 9.2, Neither Party shall be liable to the other for any indirect loss including, without limitation, indirect loss in the following categories: loss of profits, loss or corruption of data, depletion of goodwill, loss of anticipated savings, loss of contract or business opportunity or any special, indirect, consequential or pure economic loss, costs, damages, charges or expenses which may be suffered in consequence of the Contract. 

9.4. Subject to Clause 9.2, Nourish’s total liability in contract, tort (including negligence or breach of statutory duty), misrepresentation, restitution or otherwise arising in connection with the performance or contemplated performance of the Contract shall be for direct losses and damages only (whether in the form of the additional cost of remedial services or otherwise) and shall be limited to a sum equivalent to the current annual Licence Fee payable to Nourish by the Care Provider in respect of the current Licence Term or, if applicable, the current Extended Licence Term.

9.5. Nourish shall not be liable for any loss or damage suffered by the Care Provider where such loss or damage is suffered in consequence of any unavailability or failure or interruption of the Care Solution Services arising from any of the Care Provider’s Hardware or any third party Hardware.

9.6. This Clause 9 shall survive termination of the Contract.

10.1. Neither Party shall have any liability to the other under a Contract if it is prevented from or delayed in performing its obligations under a Contract or from carrying on its business by any act, event, omission or accident beyond its reasonable control, including strikes, lock-outs or other industrial disputes (excluding the workforce of the relevant Party), failure of a utility service or transport network, act of God, pandemic, war, riot, terrorist event, malicious damage by a third party, compliance with any law or governmental order, rule, regulation or direction, fire, flood or storm (a “Force Majeure Event”).

10.2. If a Force Majeure Event prevents, hinders or delays a Party performing its obligations under the Contract or from carrying on its business for a continuous period of more than ninety (90) calendar days, the Party not affected by the Force Majeure Event may terminate the Contract by giving thirty (30) calendar days’ written notice to the other Party.

10.3. Nourish encourages the Care Provider to implement a business continuity plan for events where use of Nourish is unavailable for any reason. Templates can be provided by Nourish if requested. Nourish does not take any responsibility for Care Providers’ own business continuity in the case of Nourish being unavailable.

11.1. Any notice or communications about a Contract must be sent by email to contracts@nourishcare.com or email as provided by the Care Provider, to the recipient Party. Any notice shall be deemed served at the time of email transmission.

12.1. The Care Provider may not assign any benefit under a Contract or any part of it to any person, firm or company without the prior written consent of Nourish, such consent will not be unreasonably withheld.

13.1. If a dispute arises out of or in connection with the Contract or the performance, validity or enforceability of it (“Dispute”), then the Parties shall follow the procedure set out in this Clause:

• 13.1.1. either Party shall give to the other written notice of the Dispute, setting out its nature and full particulars (“Dispute Notice”), together with relevant supporting documents. On service of the Dispute Notice the Dispute shall be referred to the Operations Director of Nourish and the Operations Director of the Care Provider who shall attempt in good faith to resolve it; and
• 13.1.2. if the persons in Clause 13.1.1 above are for any reason unable to resolve the Dispute within twenty one (21) Business Days of it being referred to them, the Parties agree to enter into mediation in good faith to settle the Dispute in accordance with the CEDR Model Mediation Procedure. To initiate the mediation, a Party must serve notice in writing (“ADR Notice”) to the other Party of the Dispute, referring the Dispute to mediation. A copy of the ADR Notice should be sent to CEDR. Unless otherwise agreed between the Parties within seven (7) Business Days of service of the ADR Notice, the mediator shall be nominated by CEDR. Unless otherwise agreed between the Parties, the mediation will start no later than fourteen (14) Business Days after the date of appointment of the mediator by CEDR.

13.2. If the Dispute is not resolved within twenty one (21) Business Days after appointment of the mediator by CEDR, or either Party fails to participate or ceases to participate in the mediation before the expiry of that twenty one (21) Business Day period, or the mediation terminates before the expiry of that twenty one (21) Business Day period, the Dispute shall be finally resolved by the courts of England and Wales in accordance with Clause 14.11.

14.1. Nourish reserves the right to vary these Terms and Conditions, any material changes will be communicated to the Care Provider.

14.2. We may refer to the Care Provider as a customer and as a User of Nourish in marketing and public relations materials unless otherwise agreed in writing.

14.3. In performing its obligations under the Contract, both Parties shall comply with all applicable laws, statutes and regulations.

14.4. If any provision of the Contract is found by any court, tribunal or administrative body of competent jurisdiction to be wholly or partly illegal, invalid, void, voidable, unenforceable or unreasonable, it shall to the extent of such illegality, invalidity, voidness, voidability, unenforceability or unreasonableness be deemed severable and the remaining provisions of the Contract and the remainder of such provision shall continue in full force and effect.

14.5. Failure or delay by either Party in enforcing or partially enforcing any provision of the Contract shall not be construed as a waiver of any of its rights under the Contract.

14.6. The Contract shall not be enforceable by any third party (as defined in the Contracts (Rights of Third Parties) Act 1999) including, for the avoidance of doubt, any User.

14.7. Nourish may transfer or assign this Agreement to any current subsidiary or parent company, or successor in interest in the event of a sale or merger, such transfer or assignment to be effective upon notice to the Care Provider.

14.8. Nothing in the Contract is intended to, or shall be deemed to, constitute a partnership or joint venture of any kind between any of the Parties, nor constitute any Party the agent of another Party for any purpose. No Party shall have authority to act as agent for, or to bind, the other Party in any way.

14.9. The Contract constitutes 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.

14.10. Each Party agrees that it shall have no remedies in respect of any statement, representation, assurance or warranty (whether made innocently or negligently) that is not set out in the Contract. Each Party agrees that it shall have no claim for innocent or negligent misrepresentation or negligent misstatement based on any statement in the Contract.

14.11. The formation, existence, construction, performance, validity and all aspects of the Contract shall be governed by English law and the Parties submit to the exclusive jurisdiction of the English courts.

14.12. Nourish may from time to time make practice guidelines and assessments (the “Guidance”) accessible via the Care Solution Services. Nourish shall use reasonable endeavours to ensure that the Guidance is accurate and reflects best practice, and as such the Guidance is provided on an ‘as is’ basis. Nourish shall not be liable for any loss or damage arising out of any use of or reliance on the Guidance. For the avoidance of doubt, any Users who use the Care Solution Services and rely on the Guidance do so at their own risk. In the event that any Users become aware of any errors in the Guidance then such Users shall promptly notify Nourish in writing providing details of such errors. All Users should use their own clinical judgement and expertise when making any decisions.

14.13. Except for Billing Dates or dates otherwise set out in the Order Form, all dates and timescales are estimates only. Furthermore, due to projects often requiring a collaborative nature, the Parties agree that failure to meet a specified date will not be treated as a breach of contract by Nourish.

15.1. If there is any inconsistency between any of the provisions of the Contract, the following descending order of priority shall apply:

• 15.1.1. Order Form;
• 15.1.2. these Terms;
• 15.1.3. the applicable Schedules.

16.1. Both Parties will comply with all applicable requirements of the Data Protection Legislation. This Clause 16 is in addition to, and does not relieve, remove or replace, a Party’s obligations under the Data Protection Legislation.

16.2. The Parties acknowledge that for the purposes of the Data Protection Legislation, the Care Provider is the Data Controller and Nourish is the Data Processor. Schedule 1 sets out the scope, nature and purpose of processing by Nourish, the duration of the processing and the types of Personal Data and categories of Data Subject.

16.3. Without prejudice to the generality of Clause 16.1, the Care Provider will ensure that it has all necessary appropriate consents and notices and / or lawful basis in place to enable lawful transfer of the Personal Data to and lawful processing by Nourish and if necessary the lawful transfer of Personal Data outside the European Economic Area for the duration and purposes of the Contract.

16.4. Without prejudice to the generality of Clause 16.1, Nourish shall, in relation to any Personal Data processed in connection with the performance by Nourish of its obligations under the Contract:

• 16.4.1. process that Personal Data only on the written instructions of the Care Provider unless Nourish is required to process the Personal Data by the law of England and Wales;
• 16.4.2. ensure that it has in place appropriate technical and organisational measures to protect against unauthorised or unlawful processing of Personal Data and against accidental loss or destruction of, or damage to, Personal Data, appropriate to the harm that might result from the unauthorised or unlawful processing or accidental loss, destruction or damage and the nature of the data to be protected, having regard to the state of technological development and the cost of implementing any measures (those measures may include, where appropriate, pseudonymising and encrypting Personal Data, ensuring confidentiality, integrity, availability and resilience of its systems and services, ensuring that availability of and access to Personal Data can be restored in a timely manner after an incident, and regularly assessing and evaluating the effectiveness of the technical and organisational measures adopted by it);
• 16.4.3. subject to Clause 16.7, inform the Care Provider on becoming aware of any instruction from the Care Provider in relation to the processing of Personal Data which, in reasonable opinion of Nourish, infringes the Data Protection Legislation;
• 16.4.4. ensure that all personnel who have access to and / or process Personal Data are made aware of their data protection and security obligations, and are legally obliged to keep the Personal Data confidential;
• 16.4.5. not transfer any Personal Data outside of the European Economic Area unless the prior written consent of the Care Provider has been obtained or appropriate data protection agreements are in place and the following conditions are fulfilled:
  • 16.4.5.1. the Care Provider or Nourish has provided appropriate safeguards in relation to the transfer;
  • 16.4.5.2. the Data Subject has enforceable rights and effective legal remedies;
  • 16.4.5.3. Nourish complies with its obligations under the Data Protection Legislation by providing an adequate level of protection to any Personal Data that is transferred; and
  • 16.4.5.4. Nourish complies with reasonable instructions notified to it in advance by the Care Provider with respect to the processing of the Personal Data;
• 16.4.6. assist the Care Provider in a timely manner, at the Care Provider’s cost (such costs to be reasonable and determined in good faith), in responding to any request from a Data Subject and in ensuring compliance with its obligations under the Data Protection Legislation with respect to the exercise of the Data Subject’s rights under such legislation, security, breach notifications, impact assessments and consultations with supervisory authorities or regulators;
• 16.4.7. notify the Care Provider as soon as possible on becoming aware of a Personal Data Incident, including the categories and approximate number of Data Subjects concerned;
• 16.4.8. at the written direction of the Care Provider, delete or return Personal Data and copies thereof to the Care Provider in a commonly-readable electronic format on termination of the Contract unless required by applicable law to store the Personal Data; and
• 16.4.9. maintain complete and accurate records and information to demonstrate its compliance with this Clause 16.

16.5. The Care Provider consents to Nourish appointing Third Party Processors of Personal Data under the Contract providing that an appropriate data protection agreement is in place. Nourish confirms that it has entered or (as the case may be) will enter with each Third Party Processor into a written agreement substantially on that third party’s standard terms of business. As between the Care Provider and Nourish, Nourish shall remain fully liable for all acts or omissions of any Third Party Processor appointed by it pursuant to this Clause 16. The Care Provider authorises Nourish to appoint sub-processors in addition to or in substitution for the sub-processors.

16.6. Either Party may, at any time on not less than thirty (30) calendar days’ notice, revise this Clause 16 by replacing it with any applicable controller to processor standard Clauses or similar terms forming part of an applicable certification scheme (which shall apply when replaced by attachment to the Contract).

16.7. The Care Provider acknowledges that Nourish is under no duty to investigate the completeness, accuracy or sufficiency of any instructions of the Care Provider or any of the Data.

16.8. Where Nourish uses Security Features in relation to the Care Solution Services (wholly or in part), the Security Features must, unless Nourish notifies the Care Provider otherwise, be kept confidential and must not be lent, shared, transferred or otherwise misused by the Care Provider or any User.

16.9. If the Care Provider:

• 16.9.1. becomes aware of any unauthorised or unlawful processing of any Data or that any Data is lost or destroyed or has become damaged, corrupted or unusable;
• 16.9.2. becomes aware of any Security Incident; or
• 16.9.3. learns or suspects that any Security Feature has been revealed to or obtained by any unauthorised person,

the Care Provider shall promptly notify Nourish and fully co-operate with Nourish, who will seek to remedy the issue as soon as reasonably practicable.

16.10. Nourish’s obligations under Clause 16.9 shall be performed at the Care Provider’s reasonable expense, except to the extent that the Security Incident or other event described in Clause 16.9 arose out of any negligence or wilful default of Nourish.

16.11. Nourish may change the Security Features on notice to the Care Provider for security reasons, provided that any such change does not constitute a material diminution in quality or responsiveness of the Services.

16.12. The Care Provider warrants that:

• 16.12.1. it has the right to license the processing of the Data for the business purpose insofar as the Data incorporates the Intellectual Property Rights of any third party;
• 16.12.2. the processing of the Data under the Contract will not infringe the Intellectual Property Rights of any third party;
• 16.12.3. the Data contains nothing that is defamatory or indecent;
• 16.12.4. it is not aware of any circumstances likely to give rise to a breach of any of the Data Protection Legislation in the future (including any Security Incident);
• 16.12.5. all Data is necessary, accurate and up-to-date; and
• 16.12.6. it is registered with all relevant data protection authorities to process all Data for the Business Purpose.

16.13. Except as expressly stated in the Contract, all warranties, conditions and terms, whether express or implied by statute, common law or otherwise are hereby excluded to the extent permitted by law.

16.14. Without limiting the effect of Clause 16.13, Nourish does not warrant that the Processed Data provided by the Care Provider:

• 16.14.1. is or are accurate, complete, reliable, secure, useful, fit for purpose or timely;
• 16.14.2. has or have been tested for use by the Care Provider or any third party; or
• 16.14.3. will be suitable for or be capable of being used by the Care Provider or any third party.

16.15. The Care Provider shall indemnify Nourish against all claims, liabilities, costs, expenses, damages and losses (including but not limited to any direct, indirect or consequential losses, loss of profit, loss of reputation and all interest, penalties and legal costs (calculated on a full indemnity basis) and all other reasonable professional costs and expenses) suffered or incurred by Nourish arising out of or in connection with the processing of the Data under the Contract (“Claims against Nourish”), except to the extent that the Claims against Nourish have arisen out of or in connection with any breach of contract by Nourish, negligence or wilful default of Nourish. For clarity, Claims against Nourish shall include any claim or action claiming that the provision, receipt or use of Data (wholly or in part) infringes any Intellectual Property Right excluding any US Intellectual Property Right of a third party.

16.16. The Care Provider acknowledges that:

• 16.16.1. Nourish is reliant on the Care Provider for direction as to the extent to which Nourish is entitled to use and process the Data: and
• 16.16.2. Claims against Nourish include any claim or action brought by a Data Subject arising from any action or omission by Nourish, to the extent that such action or omission resulted directly or indirectly from the Care Provider’s instructions.

16.17. If any third party makes a Claim against Nourish, or notifies an intention to make a Claim against Nourish, Nourish shall:

• 16.17.1. give written notice of the Claim against Nourish to the Care Provider as soon as reasonably practicable;
• 16.17.2. not make any admission of liability in relation to the Claim against Nourish without the prior written consent of the Care Provider (not to be unreasonably withheld or delayed);
• 16.17.3. at the Care Provider’s request and expense and upon the provision by the Care Provider of adequate security for costs, allow the Care Provider to conduct the defence of the Claim against Nourish including settlement; and
• 16.17.4. at the Care Provider’s expense, co-operate and assist to a reasonable extent with the Care Provider’s defence of the Claim against Nourish.

16.18. The Care Provider acknowledges and agrees that details of the Care Provider’s name, address and payment record may be submitted to a credit reference agency and that the Care Provider shall remain responsible as the Data Controller in relation to any Personal Data it uses in connection with the Hardware or the Services.

16.19. The Care Provider acknowledges and agrees that Nourish may anonymise the Data and use the anonymised Data to improve the Services, Nourish’s platform and for research, development and analysis purposes with a view to improving the lives of individuals in care. Nourish may also share anonymised Data with the NHS or other professional or governmental bodies at its discretion and as Nourish sees fit.

17.1. Nourish shall provide the Care Provider with full access to Data following termination of the Contract. Nourish will provide a data drop in a mixture of the following formats, CSV, PDF or XLS.

18.1. Nourish reserves the right to add, delete, and amend features of the Platform without notice. In relation to any Application Programming Interfaces (“APIs”) relating to the Platform that have changed or discontinued, Nourish will use commercially reasonable efforts to continue supporting the previous version of any API so changed or discontinued, or for 12 months after the change or discontinuation (except if doing so (a) would pose a security or intellectual property issue, (b) is economically or technically burdensome, or (c) is needed to comply with the law or requests of governmental entities).

9.1. MDM allows Nourish to remotely push updates, locate internet enabled devices, and keep the devices secure. It also allows us to offer the Care Provider remote support and make sure devices are locked down to only use Nourish and Apps approved by the Care Provider.

19.2. The Care Provider will purchase the required number of Licences for the number of devices to be managed by the Nourish MDM as detailed in the Order Form. MDM Licences can be transferred across devices as required. The Care Provider must notify Nourish of any transferred MDM Licence and relevant identification number of the devices.

19.3. If the Care Provider wishes to use any additional apps on the devices through the MDM, Nourish takes no responsibility and has no liability for the functionality or content of these apps.

19.4. Accessing the Nourish Platform using a device that has not been supplied by Nourish or secured by the MDM is undertaken at the Care Provider’s own risk.

20.1. We accept no responsibility or liability whatsoever for or resulting from any Data prepared and/or supplied by the Care Provider or a third party on your behalf.

20.2. the Care Provider shall:

• 20.2.1. appoint a representative with responsibility for all matters relating to this Contract and each Order Form;
• 20.2.2. remain responsible for all actions and inactions of any third-party provider directly in the Care Provider’s control or with whom the Care Provider have a contractual relationship and with whom Nourish will be or are reliant upon to fulfil their obligations under this Contract or a relevant Order Form;
• 20.2.3. make sure that there is an active superuser within the Platform at all times and ensure they understand the responsibility of this role;
• 20.2.4. in the event there is no active superuser within the Platform, Nourish will not provide anyone with this role without written permission from an authorised representative of the Care Provider.

20.3. Nourish’s ability to deliver the Services depends on the Care Provider’s full and timely cooperation and collaboration, as well as the accuracy and completeness of any information that the Care Provider provides.

20.4. Nourish will remain responsible for all actions and inactions of any third-party provider directly in Nourish’s control or with whom Nourish have a contractual relationship.

20.5. Nourish shall use reasonable endeavours in accordance with good industry practice to prevent the introduction of known computer viruses or other program code which is likely to damage the software or the customer system and will check each release of the software with the same diligence as would be expected from an organisation similar to Nourish using up-to-date virus scanning software from time to time.

21.1. Nourish aims to respond to the Care Provider’s initial query in the times specified in the table below. Nourish Support Services are available 24/7 via live chat.

21.2. Bespoke reports will be estimated and any report taking over 4 hours will be prioritised and scheduled in the next available sprint. *Requests may be chargeable.

21.3. When faults are identified, Nourish will aim to assess their severity and issue corrections to faults according to those severity levels as specified below.

21.4. For the Nourish Analytics product, Nourish offers second level technical support for the Care Provider’s technical team to resolve issues with Data feeds, such as a loss of Data connectivity, disruption to Data source or Data loss. Nourish does not support the Care Provider’s technical team with queries or disruption within its Business Intelligence (BI) environment, with dashboards developed by the Care Provider or with Users accessing dashboards.

23.1. Nourish Platform shall be maintained at a level of 99.72% or better excluding:

• 23.1.1. periods of Planned Maintenance;
• 23.1.2. unavailability caused by the Care Provider’s own infrastructure;
• 23.1.3. misuse or the failure of the Care Provider’s internet service provider; or
• 23.1.4. SQL queries from the Care Provider’s BI platform overloading the server, where the Care Provider subscribes to Nourish Analytics.

23.2. The Nourish Platform has the ability to work offline enabling Users to carry on working in the event of interruptions of service (the device must be logged in prior to going offline and there are some limitations to capabilities when offline).

24.1. Nourish continually monitors server response time using Apdex with New Relic. Apdex is an industry standard to measure Users’ satisfaction with the response time of web applications and services. It is an SLA solution that helps the Care Provider see how satisfied Users are with an application through metrics such as Apdex score and dissatisfaction percentage, instead of easily skewed traditional metrics such as average response time.

24.2. Nourish strives to keep the weekly average Apdex score in each category above the following:

25.1. The Care Provider will need its own BI environment. Nourish recommends Microsoft’s Power BI due to its intuitive interface and flexibility (Nourish data can however be brought into any suitable environment). Applicable Training will take place within Power BI.

25.2. If using Power BI, the Care Provider will need to be confident using both Import and Direct Query modes. The datasets from Nourish can be large and the ability to select only the data required is needed for performative live reporting.

25.3. Familiarity with using basic SQL to structure queries on this data.

25.4. Whilst Nourish provide a comprehensive onboarding package, they do not provide training on using Power BI itself.

26.1. The Care Provider database is in Microsoft Azure and Nourish will maintain a level of 99.72% or better excluding:

• 26.1.1. Periods of Planned Maintenance.
• 26.1.2. Unavailability caused by the Care Provider’s own infrastructure.
• 26.1.3. Misuse or the failure of the Care Provider’s internet service provider.
• 26.1.4. SQL queries from the Care Provider’s BI platform overloading the server.

27.1. Using the Nourish Platform for recording, reporting and managing an individual’s care generates a large set of Data and Data points. That Data can be analysed and reported on in many ways and the resulting reports and dashboards may be used by the Care Provider as it sees fit to improve the care given and the operation of the Care Provider’s business.

27.2. An increasing number of Care Providers (through the Analytics product) and Nourish itself, are generating and developing reports and dashboards all the time. As such, while each User of the Nourish Platform may generate their own insights, it is highly likely that they will develop very similar, if not identical, insights, reports and dashboards to those generated by the Care Provider at some point in time.

27.3. The Care Provider recognises and accepts that this may happen and that it has no unique rights to or ownership in anything it may develop using the Nourish Platform. Nourish cannot access the Care Provider’s Analytics Platform or access any of the coding. The only way Nourish may see what the Care Provider is producing is if such information is shared with Nourish or if Nourish is given access to the Care Provider’s systems.

28.1. Nourish Rota Rostering shall be maintained at a level of 99.72% or better excluding:

• 28.1.1. periods of Planned Maintenance;
• 28.1.2. unavailability caused by the Care Provider’s own infrastructure;
• 28.1.3. misuse or the failure of the Care Provider’s internet service provider; or
• 28.1.4. SQL queries from the Care Provider’s BI platform overloading the server, where the Care Provider subscribes to Nourish Analytics

28.2. Support response times – Nourish Rota Rostering 

28.2.1 Nourish aims to respond to the Care Provider’s initial query in the times specified in the table below. Nourish Support Services are available 9am-5pm Monday to Friday via live chat. 

28.3. Bespoke reports will be estimated and any report taking over 4 hours will be prioritised and scheduled in the next available sprint. *Requests may be chargeable.