1 PROVIDING SERVICES
1.1These terms and conditions set out the basis on which MMSP monitoring services (the “Services”) will be provided to You by PassivSystems Limited (“We”, “Our” or “Us”). The provision of the Services will commence on the Service Commencement Date as defined in Schedule 1 to these Terms. The Services include but are not limited to:
- The provision of data as required by the MMSP model contract published by the Renewable Energy Association as set out in schedule 3 of these Terms and Conditions through the PassivPro MMSP portal for a period of seven years from the Service Commencement Date (the “Initial Service Period”)
- A PassivLiving consumer MMSP portal account in order to enable your customer to access their data online
- Automatic software updates
- Support from Our customer service team
1.2We will make every effort to commence the Services on time. However, there may be delays due to an Event Outside Our Control. See clause 10 for Our responsibilities when an Event Outside Our Control happens.
1.3The service fee in respect of the initial seven year period was included in the price when you purchased the Equipment from Us or our approved reseller.
1.4After the Initial Service Period has expired you will be able to continue receiving the Services. We will contact you in advance of the expiry of the Initial Service Period to agree the terms and the charges for the ongoing provision of the Services after the Initial Service Period.
2.1When the following words are used in these Terms (with a capital letter), this is what they will mean:
- Contract for Services: a binding contract between You and Us for the ongoing provision of the Services;
- Event Outside Our Control: is defined in clause 10;
- Equipment: the goods that you purchased from Us or our approved reseller;
- Services: the services that We are providing to You as set out in these terms and conditions;
- We/Our/Us: PassivSystems Limited, Benyon House, Newbury Business Park, London Road, Newbury, Berkshire RG14 2PZ.
2.2When We use the words “writing” or “written” in these Terms, this will include e-mail unless We say otherwise.
3 OUR CONTRACT WITH YOU
These are the terms and conditions on which We supply the Services to You. We may revise these Terms from time to time. If we do revise these terms we will notify you in writing.
4 YOUR CONTRACT WITH YOUR CUSTOMER
4.1Under this agreement We will be providing access for your customer to the PassivLiving portal to enable them to view their data.
4.2You are responsible for granting access to your customer to the PassivLiving portal. We will be providing access to Passivliving for your customer under this contract.
5 CANCELLATION BY US
5.1We may cancel the Contract for Services at any time with immediate effect by giving You written notice
- if You break the Contract for Services in any other material way and You do not correct or fix the situation within seven days of Us asking You to in writing.
- if You fail to install the Equipment in accordance with our instructions with the result that we are unable to provide you with the Services.
6 CANCELLATION BY YOU
6.1You can cancel your Contract for Services at any time but We will be unable to provide you with a refund of any charges paid at the time when the Equipment was originally purchased except as set out in clause 10.3 below.
7 YOUR RESPONSIBILITIES
7.1To enable Us to provide the Services You must ensure that:
- existing utilities supplies and systems to which the hardware will be connected and over which the Services may be provided (such as broadband, heating systems or electricity systems) are available, in good working order and suitable for the installation of the hardware; and
- Your customer has an existing broadband contract with a functioning, reasonable quality broadband connection that is available at all times; and
- Your customer has a broadband router with a spare Ethernet port which is available at all times; and
- Your customer’s Firewall and ISP allow outgoing internet connections ports 63180, 63181 and 443; and
- You give accurate and complete responses to any pre or post sales information gathering requests from the Passiv support team; and
- You keep Us informed of any changes to your e-mail address, phone number or any of other information provided to Us, and ensure that all such information is accurate. We will not be responsible for any breach of our obligations that is the result of your failing to do this.
7.2If We find that any of your customers’ systems are not suitable for the operation of the Services or You have not carried out your obligations in this section 7, We will discuss the matter with You and attempt to find an acceptable solution.
8 IF THE EQUIPMENT IS FAULTY
8.1We guarantee that for a period of fourteen months from delivery to you or our approved reseller, the Equipment shall be free from material defects. However, this guarantee does not apply in the circumstances described in clause 7. This guarantee does not apply to any defect in the Equipment arising from:
- wilful damage, abnormal storage or working conditions, accident, negligence by You or by any third party;
- if You fail to operate or use the Equipment in accordance with the user instructions;
- any alteration or repair by You or by a third party who is not one of Our authorised repairers;
9 OUR LIABILITY TO YOU
9.1We will not be liable for:
- any delay or failure by Us to provide the Services (or any part thereof) caused by Events Outside Our Control;
- any loss or damage caused by Us in circumstances where there is no breach of a contractual obligation or legal duty of care owed to You by Us; or such loss or damage is not a reasonably foreseeable result of any such breach; or
- any loss or damage caused by Us any of our respective employees or agents to the extent that such loss or damage results from any breach by You of these Terms.
9.2Subject to clause 9.3:
- We shall not be liable to You, whether in contract, tort (including negligence), breach of statutory duty, or otherwise, for any loss of profit, or any indirect or consequential loss arising under or in connection with the Order; and
- Our liability to You in respect of all other losses arising under or in connection with these terms, whether in contract, tort (including negligence), breach of statutory duty, or otherwise, shall in no circumstances exceed the price paid by You to Us or our approved reseller.
9.3Nothing in this section 9affects any of your statutory rights and We do not exclude or limit in any way Our liability for:
- death or personal injury caused by Our negligence or the negligence of Our employees, agents or subcontractors;
- fraud or fraudulent misrepresentation;
- breach of the terms implied by section 12 of the Sale of Goods Act 1979 and by section 2 of the Supply of Goods and Services Act 1982 (title and quiet possession);
- breach of the terms implied by sections 13, 14 and 15 of the Sale of Goods Act 1979 and sections 3, 4 and 5 of the Supply of Goods and Services Act 1982 (description, satisfactory quality, fitness for purpose and samples).
10 EVENTS OUTSIDE OUR CONTROL
10.1We will not be liable or responsible for any failure to perform, or delay in performance of, any of Our obligations under these Terms that is caused by an Event Outside Our Control.
10.2An Event Outside Our Control means any act or event beyond Our reasonable control, including without limitation strikes, lock-outs or other industrial action by third parties, civil commotion, riot, invasion, terrorist attack or threat of terrorist attack, war (whether declared or not) or threat or preparation for war, fire, explosion, storm, flood, earthquake, subsidence, epidemic or other natural disaster, or failure of public or private telecommunications networks.
10.3Where one of these occurs We will normally attempt to recommence performing the Services as soon as the situation which has stopped Us performing the Services has been resolved. In such circumstances there may be a delay (sometimes a substantial delay) before We can start or continue performing the Services. If the delay in Us recommencing performing the Services will be excessive then We will offer You the option of either continuing to wait until We are able to recommence performing the Services, or allowing You to cancel the Services. If You cancel the Services we will refund to You within 30 working days of cancellation an appropriate portion of the charge for the Services prepaid by you to Us or our approved reseller representing the remainder of the seven year term.
10.4In addition, We will not be liable or responsible for any failure or delay in supplying the Services caused by additional work being necessary to install the Services because your customer’s systems or utility connections were not initially suitable, or where you have to wait for other providers of services (for example, engineers who have been engaged by You) to complete their work before We are able to perform the Services or where You have failed to comply with your obligations under section 7.
10.5Both You and Us will have the right to cancel the Contract for Services if the Event Outside Our Control continues for longer than four weeks.
11 INFORMATION ABOUT US AND HOW TO CONTACT US
11.1We are a company registered in England and Wales. Our company registration number is 6692246 and Our registered office is at Benyon House, Newbury Business Park, London Road, Newbury, Berkshire RG14 2PZ. Our registered VAT number is 2442234441.
11.2If You have any questions or if You have any complaints, please contact Us. You can contact Us by telephoning Our customer service team at +44(0)3330 062934 or by e-mailing Us at: email@example.com.
11.3If You wish to contact Us in writing, or if any clause in these Terms requires You to give Us notice in writing (for example, to cancel), You can send this to Us by e-mail, by hand, or by pre-paid post to PassivSystems Limited at Benyon House, Newbury Business Park, London Road, Newbury, Berkshire RG14 2PZ. We will confirm receipt of this by contacting You in writing. If We have to contact You or give You notice in writing, We will do so by e-mail to the address You provide to Us when you set up your account on PassivPro.
12 HOW WE MAY USE YOUR OR YOUR CUSTOMER’S PERSONAL INFORMATION
12.2Under this agreement We are the Data Processor and You are the Data Controller
13 OTHER IMPORTANT TERMS
13.1We may transfer Our rights and obligations under these Terms to another organisation, and We will always notify You in writing if this happens, but this will not affect your rights or Our obligations under these Terms.
13.2This Contract for Services is between You and Us. No other person shall have any rights to enforce any of its terms.
13.3Each of the paragraphs of these Terms operates separately. If any court or relevant authority decides that any of them are unlawful, the remaining paragraphs will remain in full force and effect.
13.4If We fail to insist that You perform any of your obligations under these Terms, or if We do not enforce Our rights against You, or if We delay in doing so, that will not mean that We have waived Our rights against You and will not mean that You do not have to comply with those obligations. If We do waive a default by You, We will only do so in writing, and that will not mean that We will automatically waive any later default by You.
13.5These Terms are governed by English law. You and We both agree to submit to the non-exclusive jurisdiction of the English courts. However, if You are a resident of Northern Ireland You may also bring proceedings in Northern Ireland, and if You are a resident of Scotland, You may also bring proceedings in Scotland.
SCHEDULE 1 – SERVICE COMMENCEMENT, DESCRIPTION AND SERVICE LEVELS
1 SERVICE COMMENCEMENT DATE
1.1The Service Commencement Date will be the date on which the Equipment has been commissioned by you and successfully sends performance data to our servers
2 MONITORING SERVICES
2.1The following Monitoring Services will be provided:
- Activation of SIMs (if applicable to your Services) and configuration of Equipment to ensure that Services are live at point of commissioning, subject to you following agreed processes for commissioning of the Equipment;
- For GSM Services, Management of the communications infrastructure through third parties to support the collection of meter data transmitted from each System in our portal;
- Collection, storage and management of data transmitted by the Equipment;
2.2Reasonable endeavours will be used by Us to collect data from the GSM Systems on a daily basis and to provide ongoing remote access to the Broadband Systems but due to the intermittent nature of the communications infrastructure, daily collection of data / remote access at all times cannot be guaranteed.
2.3If there is a failure of data transmission or connection from site, the latest available data will be collected on the date of next successful connection and transmission.
2.4Static data collected in the set-up process and subsequent data will be stored on behalf of and under the supervision of Us in a secure tier 1 data hosting environment.
2.5We will provide help desk support for authorised portal users and will respond to email and telephone requests for support through the agreed support channels in respect of user access, data queries, technical queries and hardware warranties. Requests made by You to the Our customer service team should contain a clear description of the problem or question. We will use reasonable endeavours to resolve the issue on the phone/email. Problems will be prioritised based on severity, as follows.
- Tier 1 – 60 minutes – Remote activation and remedial site checks
- Tier 2 – 1 Business Day – User access queries, hardware order and price queries, return material authorisation
- Tier 3 – 3 Business Days – hardware updates, ad-hoc reporting, data queries, data change requests, technical queries and remote assistance, billing queries
2.6Our help desk support will be available during Normal Service Hours (8.30 am to 6.00pm).
2.7In respect of faulty Products and SIMs under warranty, a return material authorisation (“RMA”) number and return instructions will be issued within 1 Business Day of receipt by Us of a request to return faulty Products and SIMs.
2.8We will from time to time release Portal software updates to resolve technical issues or to introduce new or improved features. These updates will be provided under this Agreement. Portal updates incorporating new features providing significant enhancements to portal functionality will however be charged on an agreed basis.
2.9We will provide installer training delivered by a competent trainer to You. Installer training will be chargeable at Our normal training day rates as notified from time to time.
2.10Access to online installer documentation will be supplied to You and your subcontractors. Installer documentation will be updated by Us from time to time and notified in writing to You.
3 BACK-UP SERVICES
3.1The following Back-up Services will be provided in accordance with this Agreement
- Monitoring data is stored on a high availability storage area network, with a high level of redundancy.
- Managed backups are weekly (with standard exclusions) with daily differential backups maintained with a 2 week retention period.
- The data centre where the Portal is hosted is monitored by video surveillance and access to the data halls is restricted and controlled using security authentication methods.
- The data centre will be staffed 24 hours a day, 7 days a week, 365 days a year. The data centre operates ISO17799-based security policies and procedures which are regularly reviewed as part of a SAS70 Type II audit process.
- All servers operate RAID1 (Redundant Array Independent Disks) to mirror data onto multiple disks for fault tolerance from disk errors or failures.
4 MAINTENANCE SERVICES
4.1We will release new versions of the Portal and Passiv hub code on a regular basis. New releases may contain new features, feature enhancements and bug fixes. Minor bug fixes will be scheduled for such regular Portal releases.
5 SERVICE LEVELS
5.1The Service Levels are as follows:
- The Portal shall be Available to authorised Users 24 hours a day, 365 days per annum.
- 95% Portal Availability will be provided in any calendar month, excluding any planned maintenance period.
- Data will be successfully collected and will be available on the Portal the day after collection for all but two days of each month in accordance with this paragraph. We will collect data in accordance with the Portal Specification.
SCHEDULE 2 – PORTAL SPECIFICATION
1 PORTAL SERVICES
1.1The following portal services will be provided:
- Web browser access to the Portal.
- APIs for data exchange (as appropriate for the Services).
- User management.
- Service provisioning.
- Report download.
- Dashboard showing high level service metrics.
2 PORTAL DATA
2.1The data set out in Schedule 3 will be available in the PassivPro and PassivLiving portals
SCHEDULE 3 – DATA COLLECTION
1 THE USE OF METERS AND OTHER MEASURING INSTRUMENTS
1.1We will capture and record on our portal (subject to proper installation and connection of all relevant Equipment and data collection devices and receipt of data to our servers):
- For heat meters: the heat generated by the heat pump or its components (if eligible heat meters are installed and connected);
- For temperature sensors: the temperature of the liquid leaving the heat pump or the temperature of the liquid leaving the heat pump for the sole purpose of heating domestic hot water or entering the domestic hot water cylinder;
- For eligible electricity meters: any electricity supplied to any components of the heat pump included in the heat recorded under sub-paragraph 1.1; and if the heat pump is used for the purpose of heating domestic hot water, the total electricity supplied to the domestic hot water system including the electrical consumption by any immersion element in a domestic hot water cylinder;
- data from a temperature sensor to measure the indoor temperature in one room in the property to which the heat pump provides heat;
- if the heat pump is a ground source heat pump, the temperature of the liquid in the part of the plant that extracts heat from the ground or water as it enters, and returns from, the ground or water; and
- if the heat pump is an air source heat pump, the external temperature.
2 ACCURACY REQUIREMENTS FOR METERS AND TEMPERATURE SENSORS
2.1We will record and retain the following data, if successfully received by us, on our Portal
- information at least every two minutes from all meters installed or used;
- information at least every two minutes from all temperature sensors or weather feeds from weather stations within 50 miles of the installation;
2.2Under the MMSP Model Contract it is the installer’s responsibility to ensure that they install a meter supplied by us which is compliant with Ofgem’s requirements stated below:
- the smallest amount of energy that eligible heat meters used under the Agreement can detect is equal to or less than 1 Wh or, if not, is equal to or less than: 10 Wh, if the eligible heat meter is measuring the heat in domestic hot water as it leaves a domestic hot water cylinder; or 3% of the smallest amount of the heat that the plant being measured is designed to produce in two minutes in Wh, if the eligible heat meter is not measuring the heat in domestic hot water as it leaves a domestic hot water cylinder;
- the smallest amount of energy that eligible electricity meters used in relation to the components of the heat pump under the Agreement can detect is equal to or less than: 1 Wh; or
- 3% of the smallest amount of electricity that the heat pump compressor, any supplementary electric heater and any electric immersion heater (where the energy used by those components is metered) is designed to consume in two minutes in Wh;
- the data completeness of the information provided by all measuring instruments and submitted to our Portal over any consecutive 12 month period is at least 75%.
3 PRESENTATION OF INFORMATION
3.1We will ensure that that information recorded under the Agreement and successfully sent to our Portal is:
- available for viewing by You (“the installer view” in PassivPro) and by the consumer (“the participant view” in Passivliving); and
- updated automatically within one week of that information being recorded by the relevant measuring instruments and successfully received by Us.
3.2The installer view will:
- include all of the information recorded by all measuring instruments and successfully received by us over a period which is: at least the past 12 months; or if the Agreement has been in force for less than 12 months, the period in which the Agreement has been in force;
- shows the data as it was recorded in 2 minute intervals or smaller intervals; and
- indicates the data completeness of the recorded information- in each three month period for the past 12 months; or if the information has been recorded for a period which is shorter than 12 months, in any three month period for which information has been recorded.
3.3The consumer view will:
- separately identify, as a minimum, each of the following sets of information recorded under the Agreement and successfully received by us:
- the energy output of the heat pump;
- the energy consumption by the heat pump;
- the internal temperature in any room for which the internal temperature is recorded;
- if the heat pump is an air source heat pump, the external temperature;
- if the heat pump is a ground source heat pump, the temperature of the liquid in the part of the plant that extracts heat from the ground or water as it enters, and returns from, the ground or water;
- the efficiency of the heat pump over the past 12 months or over any period for which data is available if less than 12 months of data is available (“the efficiency assessment”); and
- an assessment as to the accuracy of the efficiency assessment and information about the components of the heat pump which have contributed to the efficiency assessment;
3.4The consumer view will display the information referred to in paragraph 3.3 in a way that:
- shows the information collected in the immediately preceding week, broken down by hour or by a smaller unit of time; and
- shows the information collected in any other period (at least for data collected in the previous 12 months), broken down by month or by a smaller unit of time; and
- identify the data completeness of the information recorded by the measuring instruments and successfully sent to our servers.