Last updated: April 2024

0.1. The Reseller owns, or is the licensee of, the Software or Services, which Nourish wishes to Resell.

0.2. Reseller Services MediaBase Direct Ltd is a marketing services Reseller specialising in data, database marketing, apps and providing various services to its Care Providers.

0.3. This agreement sets out the terms agreed between the parties for the Reseller Services.

0.4. Nourish wishes to resell the MediaBase product eReception Book to their clients as a Visitor Management System that integrates with their platform.

1.1. As part of this Terms of Service the Reseller offers:

• (a) access to the Reseller application or Services
• (b) applicable training as per Order Form.
• (c) applicable support

1.2. The scope and features of the Services are set out in Schedule 1.

2.1. You Subscription Period to these Services will commence on the first Billing Date detailed in the Order Form.

3.1. The Care Provider shall co-operate with the Reseller in all matters relating to the performance of the Services in a timely manner and ensure that any data or other information provided to the Reseller is accurate, not misleading and has all necessary consents or other related licences or permissions required in order for the Reseller to perform the Services in connection with such data or information.

3.2. If the Reseller’s performance of its obligations under the Agreement is prevented or delayed by any act or omission of the Care Provider or the Care Provider’s agents or employees, the Care Provider shall be liable to pay to the Reseller on demand all reasonable costs, charges or losses sustained or incurred by it (including, without limitation) any direct or indirect consequential losses to deploy resources elsewhere, subject to the Reseller confirming such costs, charges and losses to the Care Provider in writing.

3.3. If the Care Provider partakes in any data upload or provides any information (or data) digital or otherwise which are intended to be uploaded onto any Reseller servers, websites, apps or other devices, whether or not the information is intended to be displayed on any Care Provider website, app or other device, the Care Provider is obliged to ensure any data upload or information/data adheres to the obligations set out in clause 2 of the Software as a Service Agreement.

3.4. You shall not download, publish, modify, duplicate, distribute, retain or transfer any Asset, software program, source code, screen displaying asset for any purpose unless otherwise specifically authorised by the Reseller to do so.

3.5. You shall not publish, transfer or disclose, broadcast, copy any asset, software program, source code, screen displaying asset to any other Care Provider, or third party unless otherwise specifically authorised by the Reseller to do so.

4.1. Subscription Period is detailed in the Reseller Order Form.

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

5.2. 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:

• 5.2.1. 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.
• 5.2.2. the Care Provider fails to pay any undisputed sum due under the Contract in excess of 25% of the annual Fees within fourteen (14) calendar days of receipt of a notice of non-payment from Nourish.
• 5.2.3. 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.
• 5.2.4. 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);
• 5.2.5. 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.
• 5.2.6. 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
• 5.2.7. the Care Provider ceases, or threatens to cease, to trade.

5.3. 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.

5.4. Either Party may terminate the Contract without liability to the other at the end of the current Subscription Term provided they are given written notice of not less than thirty (30) calendar days due to expire on the expiry of the current Subscription Term confirming that the Party does not want the Subscription Term to be extended for a further period of 12 months.

5.5. On termination of the Contract:

• 5.5.1. 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.
• 5.5.2. Nourish shall terminate all or any security features, access or User accounts that the Care Provider and / or User have with Nourish.
• 5.5.3. 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 Terms 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 these Terms.
• 5.5.4. the accrued rights of Nourish and the Care Provider shall, notwithstanding any specific

5.6. 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 5.5.3, that Party shall not be in breach of Clause 5.5.3, with respect to the retained documents or materials.

5.7. 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.

6.1. 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.

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

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

6.4. We reserve the right to suspend the supply of and / or access to the Services 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.

6.5. 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.

6.6. 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 6.4, 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.

6.7. 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.

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

8.1. If either party receives any Confidential Information from the other, the receiving party must only use the other’s Confidential Information in a limited way to perform its respective obligations or exercise its respective rights under these Terms.

8.2. Each party must keep the other’s Confidential Information secret and safe, treat it as its own confidential information.

8.3. The obligations in clauses 8.1 and 8.2 do not:

• 8.3.1. apply to Confidential Information that is:
• 8.3.2. in the public domain otherwise than as a result of a breach of these Service Terms or another obligation of confidence.
• 8.3.3. independently developed by the recipient; or
• 8.3.4. already known by the recipient independently of its interaction with the other party and free of any obligation of confidence.

8.4. The Care Provider hereby acknowledges that the Reseller’s IPRs in the data, Reseller software and software programmes and assets owned or acquired by the Reseller and supplied or made available by the Reseller under this Agreement, and any and all IPRs in connection with the Services and performance of the Services, belong to and vest in the Reseller. In the event that the Order Form makes reference to third party data, then the Care Provider also hereby acknowledges that the third party data owner’s IPR in such data belongs to and vests in that third party and that the data supplied under this Agreement is produced in whole, or in part, under licence from and based in whole, or in part, from the protected material of a third party data owner. Furthermore, nothing contained herein will be construed as an assignment or licence (subject to this Agreement) of any such IPRs to the Care Provider which, at all times, shall vest in the Reseller or its licensor.

8.5. The Care Provider shall use all reasonable endeavours to prevent any infringement of the intellectual property rights.

8.6. The Care Provider undertakes not to use the Reseller software information, data, software programme or assets otherwise than in the exercise and performance of its rights and obligations under this Agreement.

8.7. The Care Provider may not make adaptions or variations of the Reseller software information data, software programme or assets without the prior consent of the Reseller.

8.8. The Care Provider may not disassemble, decompile, reverse, translate or in any other manner decode the Reseller software, software programme, data, and assets.

8.9. If the Care Provider makes any copies of the data, asset, Reseller software information or software programme, the Reseller shall at all times own such copies.

8.10. Where the Care Provider requires the Data for its own internal purposes the Care Provider will keep the data or the Services confidential and will require its employees to do likewise. The Care Provider will at all times take all reasonable steps in relation to its employees, authorised and duly appointed agents to ensure that no third party reproduces or publishes the data for his, her or its own financial gain (whether in hard copy or machine-readable form and whether directly or in condensed or tabulated form) save and except in accordance with the terms of this Agreement. Where the Care Provider is a list broker agency or similar and requires the data for use on behalf of or for the benefit of any third party, the data may only be disclosed to a third party which has contracted with such broker agency or similar for the acquisition of the data for a stated and particular use only and provided the Care Provider: –

• 8.10.1. has given the Reseller full details of the third party and of the proposed use of the data and;
• 8.10.2. that such third party has previously signed an agreement in respect of the use of the data in such form as may be required by the Reseller.

8.11. The Care Provider will not either during the Term of this Agreement or thereafter, disclose the software programme Reseller, software motion source code, so to the Care Provider’s clients or any third party, save in accordance with the terms of this Agreement.

8.12. The Care Provider acknowledges that the software programme Reseller, software motion source code constitutes an extremely valuable and important asset of the Reseller. Accordingly, without prejudice to the Reseller’s other rights whether arising under this Agreement or otherwise, in respect of the software programme Reseller, software motion source code and assets which in the opinion of the Reseller on the basis of such evidence as is reasonably available to the Reseller, is used by or on behalf of the Care Provider in the compilation of software programme Reseller, software motion source code (“the Care Provider’s database” which expression, where appropriate, shall include any part thereof) which is disclosed by or on behalf of the Care Provider to any third party, the Care Provider shall forthwith upon each such disclosure pay to the Reseller such sum as the Reseller determines that it would have charged for the supply of such part of the Care Provider’s database as was disclosed by or on behalf of the Care Provider which was similar to the names and the addresses in the software programme Reseller, software motion source code (taking into account in determining such sum the types of data elements within the software programme Reseller, software motion source code). Without prejudice to the generality of the foregoing, the Care Provider agrees that it shall be irrefutably assumed that the software programme Reseller, software motion source code, has been used by the Care Provider in the compilation of the Care Provider’s database if the entirety of the Care Provider’s database contains names and addresses which are similar to more than half the names and addresses in the software programme Reseller, software motion source code. In respect of any such compilation the Care Provider undertakes that it will maintain sufficient records including in respect of each such supply copies of those parts of the Care Provider’s database which are supplied to a third party and forthwith upon request provide such records and copies in such machine readable form as will enable the Reseller to assess on the Reseller’s own computer system the amounts due to the Reseller under this clause.

8.13. The Care Provider shall keep in strict confidence all technical or commercial know-how, specifications, the quotation, inventions, processes or initiatives which are of a confidential nature and have been disclosed to the Care Provider by the Reseller or its agents, and any other confidential information concerning the Reseller’s business or its products which the Care Provider may obtain. The Care Provider shall restrict disclosure of such confidential information to such of its employees, agents or sub-contractors as need to know it for the purposes of discharging the Care Provider’s obligations to the Reseller under this Agreement and shall ensure that such employees, agents or sub-contractors are subject to obligations of confidentiality corresponding to those which bind the Care Provider. The Care Provider’s obligations under this Clause shall be subject to any disclosure of such information as may be required by law, or any body of competent jurisdiction.

8.14. The provisions of this Clause 8 shall survive the termination of this Agreement and the rights of the Reseller hereunder are in addition to and not in substitution for any rights possessed at law.

9.1. All personal data captured will be processed and held in accordance with the requirements of the General Data Protection Regulation (“GDPR”). The Data Controller and Data Protection Officer is Anil Jain who can be contacted at info@mediabasedirect.com.

9.2. The Care Provider agrees to indemnify and keep indemnified and defend at its own expense the Reseller against all costs, claims, damages or expenses incurred by the Reseller or for which the Reseller may become liable due to any failure by the Care Provider or its employees, agents or sub-contractors (as permitted) to comply with any of its obligations under this Agreement.

9.3. Where the Care Provider provides data to the Reseller in accordance with this Agreement, if the data contains any personal data then the Care Provider warrants to the Reseller that any required consents, licences and/or permissions required in order for the Reseller to process that personal data as anticipated by the provision of the Services are automatically included at the time the Care Provider delivers the data to the Reseller and the Care Provider shall indemnify and keep indemnified and hold harmless and defend the Reseller against any action taken against it, or costs, losses or expenses incurred or suffered, due to the Care Provider’s breach of this warranty and in connection with the processing of that personal data on behalf of the Care Provider. Provided the Care Provider has complied with its obligations under the GDPR as a Data Controller (when supplying data which includes Personal Data to the Reseller) and this Agreement, the Reseller agrees to only process that personal data for the purposes of providing the Services under this Agreement and in accordance with the Care Provider’s instructions and the GDPR. For further information on how the Reseller holds and processes personal information please refer to our Privacy Policy.

9.4. A cookie is a string of information that a website stores on a visitor’s computer and that the visitor’s browser provides to the website each time the visitor returns. We use what is known as a session cookie to keep track of a member whilst they are logged on to our site. This is essential to the whole operation of our service. It follows that by registering for the service you are consenting to our use of cookies in this way. For more information about cookies please refer to our Privacy Policy.

9.5. All information is held in accordance with the Reseller’s Privacy Policy

10.1. Whilst the Reseller has endeavoured in both the collation of the data and the provision of the Services to ensure the accuracy of the data or Services the nature of the data and Services (as the Care Provider accepts and acknowledges) is such that: –

• 10.1.1. In the collation of data and the provision of the Services the Reseller often has to rely on information provided by the Care Provider or a third party and such information may have been incorrectly provided by a Care Provider or third party.

10.2. The Reseller shall not be liable whether in tort (including for negligence or breach of statutory duty) contract, misrepresentation, restitution or otherwise for any loss of profits, loss of business depletion of goodwill and/or similar losses or loss or corruption of data or information, pure economic loss or for any special indirect or consequential loss, costs, damages, charges or expense however arising under this agreement but nothing in this agreement excludes the liability of the Care Provider for death or personal injury by the Reseller’s negligence or for fraud or fraudulent misrepresentation.

10.3. Subject to the provisions of 10.1 and 10.2 above the Reseller shall indemnify the Care Provider and keep indemnified the Care Provider in respect of all costs, claims, damages and expenses incurred by the Care Provider of which the Care Provider may become liable as a result of any failure on the part of the Reseller or its employees, agents or sub-contractors to comply with any of the obligations of this clause. The Reseller’s total liability in contract, tort or otherwise for any loss or damage (excluding death, personal injury or fraud, which the Reseller does not seek to limit or exclude) sustained or incurred directly by the Care Provider or others arising as a result of the Reseller’s breach of contract, negligence or otherwise, shall be limited to £500,000.00 The Reseller will not be liable as set out in this Clause 10.3 if the total price for the data or the Services has not been paid by the Care Provider by the due date.

10.4. Subject as expressly provided in this Agreement, all warranties, conditions or other terms implied by statute or common law are excluded to the fullest extent permitted by law.

10.5. The Care Provider is liable and responsible for any data upload, or any other information or data of any kind supplied (in any way whatsoever) to the Reseller.

10.6. The Care Provider is responsible for any loss or damage caused by any third party or other Care Provider’s reliance on the information/data or data upload provided by the Care Provider

10.7. Access to any app or website, Reseller server or device provided by the Reseller is dependent upon availability of the worldwide web and the Reseller accepts no responsibility for the inability of the Care Provider or the public generally to access the app, server or website arising out of circumstances beyond the Reseller’s reasonable control.

10.8. The Reseller cannot and does not accept any responsibility for any inconvenience, loss or distress which may arise as a result of the Care Provider’s inability to use the app, website or any other device and/or software programme, Reseller server or the interruption, suspension, modification alteration or termination of the app, website or any other device.

10.9. The Care Provider is solely responsible for any loss or damage caused by cancellation or any termination.

10.10. If the Reseller’s performance of its obligations under the Agreement are delayed by any act or omission of the Care Provider, or the Care Provider’s agents or employees, the Care Provider shall be liable to pay to the Reseller on demand all reasonable costs, charges or losses sustained or incurred by it (including without limitation) any direct or indirect consequential loss to deploy resources elsewhere, subject to the Reseller confirming such costs, charges and losses to the Care Provider in writing.

10.11. The Reseller does not warrant that any app, website or device provided by the Reseller is free from viruses, harmful components or that defects will be corrected but the Reseller will use its reasonable endeavours to ensure that the devises are free from such viruses and harmful components.

10.12. The app, website or assets provided by the Reseller may contain links to third party websites. If you decide to visit any third-party site, you do so at your own risk. The Reseller is not responsible for the content, accuracy or opinions expressed on such websites. Links do not imply that the Reseller is affiliated or associated with such sites. Third party content may appear on the website or may be accessible via links from the website. The Reseller are not responsible for and assume no liability for such content.

10.13. To the fullest extent permissible by law, the Reseller excludes and disclaim all warranties, terms, conditions and representations that might otherwise be implied by law in relation to this app, website and the assets and any other devices.

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

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

11.3. 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.

11.4. 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.

11.5. 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.

11.6. Nourish may transfer or assign this agreement to any current subsidiary or parent Reseller, 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.

11.7. 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.

11.8. 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.

11.9. 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.

11.10. 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.

11.11. 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.

11.12. 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.

12.1. The Reseller reserves the right to after having given reasonable notice (which need not be in writing) to the Care Provider except for in the case of an emergency in accordance with clause 12.1(d) when no notice shall be required and such revocation and/or withdrawal that is not in consequence of any act or omissions of the Care Provider or the Care Provider’s breach of these terms:

• a) Revoke any permitted use previously authorised.
• b) Withdraw website or app linking permission without notice.
• c) Withdraw or amend any or all of any apps, websites or other devices provided by the Reseller without notice.
• d) Suspend access to any app, website, Reseller server or other devices provided by the Reseller periodically to carry out emergency or scheduled maintenance or for any other reason at any time.
• e) The right to disable the Care Providers access to the app, website or other device provided by the Reseller for any failure, in the opinion of the Reseller, of any provisions in the Agreement.

In the event that the suspension is not a result of any act or omission on behalf of the Care Provider the Reseller will provide a prorated refund for any sums pre-paid for the use of the website, app or device.

12.2. The Reseller may, although they are not obliged to, monitor, edit, or remove any data upload or any information or data provided to the Reseller by the Care Provider for violation of the Agreement.

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

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

• 14.1.1. Order Form.
• 14.1.2. these Terms.
• 14.1.3. the applicable Schedules.

16.1. Following the Agreement coming into existence between the parties in accordance with Clause 2 the Company shall provide the Services set out in the Order Form to the Customer in accordance with the Agreement.

16.2. The Company shall use reasonable endeavours to provide the Services using reasonable skill and care.