Last updated: October 2024

0.1. The Reseller owns, or is the licensee of, the Software or Services.

0.2. The Supplier owns, or is the licensee of, the eLearning Training Platform.

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

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

• (a) access to the Supplier application or Services;
• (b) applicable training;
• (c) applicable support

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

2.1. Your Subscription Period to these Services will be 12 months and will commence when training credits are purchased or on the first Billing Date in the Order Form if applicable.

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

3.2. 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:

• 3.2.1. 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;
• 3.2.2. 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;
• 3.2.3. 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;
• 3.2.4.     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);
• 3.2.5.     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;
• 3.2.6.     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
• 3.2.7. the Care Provider ceases, or threatens to cease, to trade.

3.3. 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.

3.4. 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.

3.5. On termination of the Contract:         

• 3.5.1. 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;
• 3.5.2. Nourish shall terminate all or any security features, access or User accounts that the Care Provider and / or User have with Nourish;
• 3.5.3. 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.
• 3.5.4. the accrued rights of Nourish and the Care Provider shall, notwithstanding any specific provision of these Terms, survive the termination of the Contract.

3.6. 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.

3.7. 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.

4.1. Care Provider agrees to pay the Fees upfront for training credits at point of purchase by Debit or Credit Card or where applicable, in accordance with the Terms specified in each Order Form and without deduction or set off.

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

4.3 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.

4.4 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 monthly and compounded monthly until payment is made, whether before or after any judgment.

4.5 Services will not be refundable after the order has been placed.

4.6 Where the Care Provider uses a usage-based product or bundle 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.

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

6.1 Refer to Nourish Standard Terms and Conditions.

7.1. 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.

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

7.3 The obligations in clauses 9.1 and 9.2 do not:

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

8.1 The Customer acknowledges and agrees that details of the Customer’s name, address and payment record may be submitted to a credit reference agency, and personal data will be processed by and on behalf of the Supplier in connection with the Services. The Supplier confirms they will comply with their duties as a GDPR processor as required under these regulations.

8.2 All other processing will be done in line with Nourish Standard Terms and Conditions.

9.1. This condition 9 sets out the entire financial liability of the Supplier (including any liability for the acts or omissions of its employees, agents and sub-contractors) to the Customer in respect of:

• 9.1.1. any breach of the contract;
• 9.1.2. any use made by the Customer of the Services, the Training Materials 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. All warranties, conditions and other terms implied by statute or common law are, to the fullest extent permitted by law, excluded from the contract.

9.3. Nothing in these Conditions limits or excludes the liability of the Supplier for death or personal injury resulting from negligence or for any damage or liability incurred by the Customer as a result of fraud or fraudulent misrepresentation by the Supplier or for any liability which may not be lawfully excluded.

9.4. Subject to condition 9.2 and condition 9.3:

• 9.4.1 the Supplier shall not be liable, whether in tort (including for negligence or breach of statutory duty), contract, misrepresentation or otherwise for:
  • 9.4.1.1 loss of profits; or
  • 9.4.1.2 loss of business; or
  • 9.4.1.3 depletion of goodwill and/or similar losses; or
  • 9.4.1.4 any special, indirect, consequential or pure economic loss, costs, damages, charges or expenses.
• 9.4.2 the Supplier’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 limited to 50% of the Price.

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

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

10.3. 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.

10.4. 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.

10.5. 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.

10.6 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.

10.7 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.

10.8 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.

10.9 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.

10.10 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.

10.11 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.

10.12 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.

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

• 12.1.1 If applicable the Order Form;
• 12.1.2 these Terms;
• 12.1.3 the applicable Schedules.

14.1. Following the Agreement coming into existence between the parties in accordance with Clause 2 the Company shall provide the Services to the Customer in accordance with the Agreement.

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