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Nourish Standard Terms & Conditions

Last updated: April 2024

Definitions & Interpretations:

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

Affiliateincludes in relation to either Party each and any subsidiary or holding company of that Party or any business entity controlling, controlled by, or under common control with, either Party, which shall include any connected person of that Party, as defined by section 1122 of the Corporation Tax Act 2010, from time to time.
Background Setup Servicesthe background setup by Nourish in the Implementation Services.
Billing Datethe date on which billing will commence for the applicable Licence or Services outlined in the Order Form.
Billing Schedulethe schedule of billing payments for this contract as detailed in the Order Form.
Business Daysa day other than a Saturday, Sunday or public holiday when banks in London are open for business.
Business Purposethe provision of care to residents, patients or clients of the Care Provider and any member of the Care Provider Group.
Capacitythe full Capacity of persons supported in a Service at any one time, as registered by applicable regulatory authority. Where a Service is not regulated or capacity is not relevant, Capacity will be as number of Licences detailed in the Order Form.
Care Providerthe person, firm or company (whose particulars are set out in the Order Form) who directly purchases any of the Hardware, the Services and / or the Licence from Nourish.
Care Provider Groupthe Care Provider and its Affiliates from time to time.
Care Solution Servicesthe supply of the care solution further described in the Order Form. 
Contractthe agreement, constituted by the Contract Documents, entered into by and between Nourish and the Care Provider for the sale and supply of: the Hardware; the Licence; the Services; and / or anything else detailed in the Order Form
Contract Commencement Datethe date on which the Order Form is countersigned by both Parties.
Contract Documentsthe Order Form(s), a Supplemental Order Form (if applicable), a Renewal Order Form (if applicable) and these terms and conditions including any schedules.
Contract Termthe period of time during which the Care Provider and the Users shall have the right to use the Care Solution Services, being the period of time commencing on the Contract Commencement Date or Implementation Date of the first Service, whichever is sooner, and ending on the termination of this contract.
Dataany data or information, in whatever form, including images, still and moving and sound recordings, provided to Nourish by the Care Provider.
Data Controllerbody which determines the purpose and means of Personal Data processing.
Data Processorbody which processes Personal Data on behalf of the Data Controller.
Data Protection Legislation(i) unless and until the GDPR is no longer directly applicable in the UK, the General Data Protection Regulation ((EU) 2016/679) and any national implementing laws, regulations and secondary legislation, as amended or updated from time to time, in the UK, (ii) the Data Protection Act 2018 and (iii) any successor legislation to the GDPR .
Data Subjectthe identified or identifiable living individual to whom personal data relates.
Deliverythe transfer of the physical possession (after off-loading) of the Hardware to the Care Provider at the Delivery Location.
Delivery Locationthe location for Delivery of the Hardware to be agreed in writing between the Parties prior to the Contract Commencement Date in respect of each Service.
Extended Licence Terman extension of the Licence Term by twelve (12) calendar months or such period of time otherwise agreed in writing by the Parties.
Feesall applicable payments as required under the Contract or detailed in the Order Form.
Hardwarethe handheld devices required to give access to the Care Solution Services and such other Hardware supplied by Nourish (if any) as may be described in the Order Form.  
Hardware Feethe fee for the Hardware ordered by the Care Provider as set out in the Order Form. Prices are only guaranteed for thirty (30) calendar days from Contract Commencement Date.
Implementation Datethe date on which a Service has access and functionality to the Care Solution Services.
Implementation Feethe fee in respect of the Implementation Services, Background Setup Service, the Hardware and the Training Services.
Implementation Servicesthe start-up Implementation Services, configuration of the Hardware and back-office set up required to give the Care Provider access to the Care Solution Services with effect from the relevant Implementation Date for each Service.
Integrated DataPersonal Data that has been received by Nourish from a Third Party Processor.
Integrationthe receipt of data or information by Nourish from any other processor who processes data on behalf of the Care Provider and the integration of such data into the Care Solution Services.
Intellectual Property Rightsall patents, rights to inventions, copyright and related rights, trademarks, service marks, trade, business and domain names, rights in trade dress or get-up, rights in goodwill or to sue for passing off, unfair competition rights, rights in designs, rights in computer software, database rights, moral rights, rights in confidential information (including know-how and trade secrets) and any other intellectual property rights, in each case whether registered or unregistered and including all applications for and renewals or extensions of such rights, and all similar or equivalent rights or forms of protection in any part of the world.
Licencethe Licence granted by Nourish to the Care Provider for the Care Provider to use the Care Solution Services for each Service or the applicable MDM Licence.
Licence Feethe fee, including any increase calculated in accordance with Clause 2.3, to be charged by Nourish and to be paid by the Care Provider for the Licence, in accordance with the Order Form, where applicable the Implementation Services and the Support Services as set out in more detail in the Order Form and any Supplemental Order Form for each Service.
Licence Termcommences on the first Billing Date of the first Care Provider Service in the Order Form and ends upon termination of this Contract. In the absence of a first Billing Date the Licence Term will commence on the Implementation Date. 
Maintenance Releasea release of software that corrects faults, adds functionality or otherwise amends or upgrades the Care Solution Services.
Malicious Codeany harmful or malicious code, files, scripts, agents or programs including, but not limited to, viruses, worms, time bombs and / or Trojan horses.
NourishNourish Care Systems Limited, a private limited company registered according to the laws of England and Wales with company registration number 07556262 and with registered office address at 3rd Floor, Dean Park House, 8-10 Dean Park Crescent, Bournemouth, Dorset, BH1 1HL.
Order Formthe Care Provider’s order for the Hardware, Licence and / or the Services, setting out the full details of the Hardware, Licence and / or the Services to be supplied to the Care Provider pursuant to this Contract and to which these Terms are attached.
Partiestogether the ‘Care Provider’ and ‘Nourish’ and each being a ‘Party’.
Personal Datainformation that relates to an identified or identifiable living individual.
Planned Maintenanceas detailed in the SLA in Schedule 3.
Processed DataData processed by Nourish in accordance with the Contract.
Recommended Infrastructureany computer with a modern browser and an internet connection (10mbps or faster) as further defined in Schedule 3.
Security Featureany security feature, including any key, PIN, password, token, smartcard or other details used to gain access to the Care Solutions Services.
Security Incidentany security incident relating to the Data which is reasonably determined by Nourish to be sufficiently serious or substantial to justify notification to the Information Commissioner or other relevant supervisory authority in accordance with the Data Protection Legislation.
Servicea physical location where care is provided by the Care Provider requiring Services provided by Nourish. 
Service Level Agreement (SLA)the Service Level Agreement to be entered into by Nourish and the Care Provider pursuant to Schedule 3.
Service Levelsthe service levels for the applicable Services, as set out in the SLA in Schedule 3.
Servicesmeans together the Implementation Services, the Care Solution Services, the Training Services and the Support Services, along with anything else detailed in the Order Form.
Support Servicesthe support services to be supplied by Nourish to the Care Provider.
Termsthese terms and conditions as amended from time to time in accordance with Clause 1.
Third Party Applicationsall and any online, web-based software applications and / or offline software products that are provided by third parties.
Third Party Processora processor other than Nourish who processes Personal Data on behalf of the Care Provider.
Training Servicesthose training services supplied by Nourish to the Care Provider to train the staff of each applicable Service of the Care Provider on how to use the Care Solution Services under Standard Training and / or Train the Trainers and / or any additional training services required by the Care Provider from time to time and detailed in the Order Form.  
Usera named individual who is an employee, director or agent, agency worker of or a contractor to the Care Provider or any member of the Care Provider Group, and who the Care Provider or any member of the Care Provider Group has designated as a user of the Hardware and / or the Care Solution Services.
VATvalue added tax chargeable under the Value Added Tax Act 1994 or any similar replacement or additional tax which may become payable from time to time.

1. Licence and Licence terms

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. 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.

3. Use of Nourish products

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:

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

4. Integration

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:

4.3. 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. Delivery, risk, & retention of title

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. Intellectual property rights

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:

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

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

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. Termination

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:

7.3. 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:

7.6. 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. Confidentiality

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.

9. Limitation of liability

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:

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

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. Force Majeure

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. Notice

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. Assignment

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. Dispute resolution

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:

13.2. 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. General

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. Order of precedence

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

16. Data protection

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:

16.5. 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:

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:

16.13. 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:

16.15. 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:

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

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. Data transfer upon termination

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.

SCHEDULE 2 – PRODUCT SPECIFIC TERMS

18. Software as a service (SaaS)

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).

19. Mobile device management (MDM)

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.

SCHEDULE 3 – SLA

20. Services – general

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:

20.3. 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. Support response times – Nourish platform

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.

Request Type Response Time
Live chat support 3 hours
Operational Support – Responding to emails where live chat
is unavailable
1 Business Day
Bespoke report request* 3 Business Days

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.

22. Severity levels and correction times – Nourish Platform

Severity LevelIssue typeCorrection TimeIncluding triage
1Blocker – This defect indicates complete shut-down of the process, nothing can proceed further and there is no workaround. This also includes the unavailability of functionality that is required for the service to be compliant or care critical, e.g. entire team cannot login and retrieve notes or run a report for the regulatory body.12 hours12 hours
2Critical – The Nourish Platform allows care notes to be retrieved but does not allow new notes to be recorded by any User.24 hours24 hours
3Major – The Nourish Platform allows care notes to be retrieved and new notes to be recorded. It is a highly severe defect which can cause loss of service to one or more features. There is no workaround to these specific features.3 Business days4 Business days
4Medium – It causes some undesirable behaviour, but the system is still functional. There is a workaround.Fall into 20% maintenance work and scheduled into the next available sprint.
5Minor – When there is almost no impact to the functionality. Examples of this could include User interface issues or defects to enhance the look and feel of a feature.This will be triaged by the Nourish product team, a decision will be taken whether to rectify and if so it will be added to the next available sprint.

23. Service availability – Nourish Platform

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

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. Server response times – Nourish Platform

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:

Apdex Score> 0.850
% Satisfied> 85%
% Tolerating< 15%
% Frustrated< 1%

25. Nourish analytics requirements (where applicable)

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. Service availability – Nourish analytics (where applicable)

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

27. Dashboard generation

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. SLA Rota Rostering 

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

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. 

Request TypeResponse Time
Live chat support3 hours
Operational Support – Responding to emails where live chat
is unavailable
1 Business Day
Bespoke report request*3 Business Days

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.