PassivSystems MMSP Services
Terms & Conditions for Metering and Monitoring Services and Smart Control Services (where applicable)
1.1 When the following words are used in these Terms (with a capital letter), this is what they will mean:
- Advanced Smart Control Service: the service to the Smart Control System, as described in Schedule 4;
- Basic Smart Control Service: the service to the Smart Control System, as described in Schedule 4, that may be received either on expiry of the Initial Service Period (as defined below) or on cancellation of the Services;
- Customer: Your customer at whose properties you install Equipment and who signs up to the PassivLiving Portal and/or PassivLiving App, where applicable;
- Data Protection Legislation: means the General Data Protection Regulation ((EU) 2016/679), the Data Protection Act 2018 and any other related statutory instruments as amended or in force from time to time;
- Event Outside Our Control: is defined in clause 9;
- Equipment: the goods that you purchased from Us or our approved reseller;
- PassivLiving: a cloud-based service comprising of a customer portal (the “PassivLiving Portal”) and smartphone app (the “PassivLiving App”) allowing the Customer the ability to control and monitor the Customer’s space heating and hot water;
- Services: the metering and monitoring services and Smart Control Services, where applicable, as set out in these Terms which are:
- The provision of data as set out in Schedule 3 of these Terms through the PassivPro and PassivLiving Portal;
- The services set out in Schedule 1, including back-up, support and maintenance services;
- Access to the PassivPro Portal for You and access to the PassivLiving Portal for Your Customer; and
- Where applicable, the Smart Control Services;
- Smart Control Fee: the fee payable in respect of the Advanced Smart Control Service on the commencement of the Initial Service Period (as defined in 2.2 below) for the duration of the Contract;
- Smart Control Hardware: the collection of the following components which are used to enable the Smart Control System to operate which includes:
- PassivLiving Hub;
- Communication cables;
- USB 4 port hub;
- Ethernet extender;
- Smart Control Services: together the Advanced Smart Control Service and the Basic Smart Control Service;
- Smart Control System: the collection and integration of hardware, firmware and software platform services to provide intelligent control of a heating system to facilitate a reduction in overall running costs to the householder and an increased utilisation of renewable energy sources;
- Terms: these terms and conditions and the schedules attached to them;
- We/Our/Us: PassivSystems Limited, company number 6692246, registered office Benyon House, Newbury Business Park, London Road, Newbury, Berkshire RG14 2PZ, VAT number 2442234441; and
- You: the corporate entity by whom you are employed or whom you represent, and “Your” will be interpreted accordingly.
1.2 When We use the words “writing” or “written” in these Terms, this will include e-mail unless We say otherwise.
2 PROVIDING SERVICES
2.1 We will provide Services to You, for the benefit of You and Customers, as set out in these Terms for a period of seven years from the date on which You commission the Equipment and it successfully sends performance data to Our servers (the “Initial Service Period”).
2.2 The service fee in respect of the Services during the Initial Service Period was either included in the price when you purchased the Equipment from Us or our approved reseller or will be invoiced to you annually in advance, at rates agreed with you, commencing on commissioning of the Equipment.
2.3 After the Initial Service Period, We will continue to provide the Services provided that we both agree on the fees for future periods. The options available after the Initial Service Period are set out in Schedule 4. 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.
2.4 We will provide the Services using reasonable skill and care and in accordance with applicable laws.
2.5 We may revise these Terms from time to time. If we do revise these Terms We will notify You when you next log in to the Portal. If You continue to use the Services following a change in the Terms, this will indicate Your acceptance of the revised Terms.
3 YOUR CONTRACT WITH YOUR CUSTOMER
3.2 You are responsible for entering into a contract with Customers to give them access to their data and to the Smart Control Services, where applicable.
4 CANCELLATION BY US
4.1 We may cancel these Terms at any time with immediate effect by giving You written notice:
- if You breach these Terms in any material way and You do not correct or fix the situation within seven days of Us asking You to in writing; or
- 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; or
- If We consider, acting reasonably, that Your interactions with any Customer is not of a standard that We reasonably expect a professional organisation attempting to provide a good level of customer service would provide or that Your behaviour is likely to damage Our reputation.
5 CANCELLATION BY YOU
5.1 You can cancel these Terms at any time by giving us written notice but We will be unable to provide you with a refund of any charges paid at the time when the Equipment was originally purchased or paid after the Initial Service Period as set out in clause 2.3, except as set out in clause 9.3 below.
6 YOUR RESPONSIBILITIES
6.1 To enable Us to provide the Services You must ensure that:
- existing utilities supplies and systems to which the Equipment 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 Equipment; 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;
- 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;
- You install Equipment in accordance with the requirements in paragraph 2.2 of Schedule 3. We will not be responsible for any breach of Our obligations that is the result of Your failing to comply with this clause.
6.2 If We find that any of Your Customer’s systems are not suitable for the operation of the Services or You have not carried out your obligations in this clause 6, We will discuss the matter with You and attempt to find an acceptable solution.
7 IF THE EQUIPMENT IS FAULTY
7.1 As set out in the guarantee that You received from Us or Our reseller when You bought the Equipment, We 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:
- any damage or work required as a result of Your failure to comply with clause 6;
- wilful damage, abnormal storage or working conditions, accident, negligence by You, the Customer or by any third party;
- if You or the Customer fails to operate or use the Equipment in accordance with the user instructions; or
- any alteration or repair by You or by a third party who is not one of Our authorised repairers.
8 OUR LIABILITY
8.1 Subject to clause 8.3, We will not be liable to You or the Customer 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 is not a reasonably foreseeable result of any such breach or for any indirect or consequential loss; or
- any loss or damage caused by Us to the extent that such loss or damage results from any breach by You of these Terms.
8.2 Subject to clause 8.3:
- We shall not be liable to You, whether in contract, tort (including negligence), breach of statutory duty, or otherwise, for any loss of profit, loss of revenue, loss of anticipated savings or loss of data; and
- Our liability to You and the Customer 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 for the Equipment.
8.3 Nothing in this clause 8 affects 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; or
- breaches which we cannot exclude or limit by law.
8.4 We are entitled to rely on the acceptance of these Terms by You as Your binding commitment to these Terms and that the individual who accepts these Terms on Your behalf is authorised to do so.
9 EVENTS OUTSIDE OUR CONTROL
9.1 We 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.
9.2 An Event Outside Our Control means any act or event beyond Our reasonable control, including without limitation delays, 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.
9.3 Where an Event Outside Our Control occurs, We will attempt to recommence performing the Services as soon as the situation which has stopped Us performing the Services has been resolved provided that it is commercially viable to do so. 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 these Terms. If You cancel these Terms, We will refund 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 Initial Service Period or any further periods agreed under clause 2.3.
9.4 Both You and We will have the right to cancel these Terms if the Event Outside Our Control continues for longer than four weeks.
10 INFORMATION ABOUT US AND HOW TO CONTACT US
10.1 If 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)3330062934 or by e-mailing Us at: email@example.com.
10.2 If 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 using the e-mail address You provided to Us when you set up your account on PassivPro.
11 HOW WE MAY USE YOUR OR YOUR CUSTOMER’S PERSONAL DATA
11.2 Under this agreement We are the processor and You are the controller.
11.3 To the extent not stated elsewhere in these Terms, the subject-matter of the processing will be the provision of metering and monitoring service of energy usage in a household, the nature and purpose of the processing will be collection of data about the use of energy in the Customer’s house, the type of personal data will be names, addresses, data about use of energy, the categories of data subjects will be Your Customers and the duration of Processing will be the duration of these Terms.
11.4 We will:
- process personal data only on Your documented instructions as set out in these Terms to perform our obligations under these Terms unless required to do otherwise by law;
- ensure that Our personnel are under obligations of confidentiality that are enforceable by Us;
- implement appropriate technical and organisational measures to keep personal data secure from unauthorised access, disclose, alteration loss or theft;
- taking into account the nature of Our processing, assist You with Your obligations to comply with data subjects’ requests and data subjects’ rights under the Data Protection Legislation through the use of appropriate technical and organisational measures, assist You in ensuring compliance with Your obligations to notify a regulator of a security breach, to communicate a security breach to data subjects, to assist with data protection impact assessments and assist with consultations with regulators;
- securely destroy personal data (including all copies of it) promptly upon termination or expiry of these Terms, or at Your request return the personal data to You;
- provide all information necessary to demonstrate Our compliance with this clause 11; and
- not process or transfer personal data outside of the UK or European Economic Area (or any country deemed adequate by the European Commission pursuant to Directive 95/46/EC or the Data Protection Legislation) without Your prior written consent.
11.5 You consent to our appointment of subcontractors in connection with the Services who process personal data provided that:
- We notify You of their identity upon request; and
- We have a written contract with them that contains terms equivalent to this clause 11. We will remain liable to You for performance of our sub-processors.
11.6 We may use data gathered as part of the Services in anonymised and statistical forms for Our own analysis, research, development and commercial products.
12 OTHER IMPORTANT TERMS
12.1 We may transfer or subcontract 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.
12.2 These Terms are between You and Us. No other person, including the Customer, shall have any rights to enforce any of its terms.
12.3 Each 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.
12.4 These Terms set out the entire agreement between the parties, and overrides any prior correspondence or representations relating to the Services.
12.5 All warranties and conditions not set out in these Terms whether implied by statute or otherwise are excluded to the extent permitted by law. You acknowledge that these Terms have not been entered into in reliance on any warranty, statement, promise or representation other than those in these Terms. Neither of us will have any claim against the other for a misrepresentation (unless that misrepresentation was made fraudulently) or any warranty other than those in these Terms.
12.6 If 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.
12.7 These Terms and all disputes arising out of them (whether contractual or non-contractual) are governed by English law. You and We both agree to submit to the non-exclusive jurisdiction of the English courts.
SERVICE DESCRIPTION AND SERVICE LEVELS
1 MONITORING SERVICES
1.1 The following Monitoring Services will be provided:
- Activation of SIMs (if applicable to Your Services depending on the Equipment being installed) and configuration of Equipment to ensure that Services are live at the point of commissioning, subject to you installing and commissioning the Equipment and registering on our portal in accordance with our instructions;
- For Equipment which uses GSM, management of the communications infrastructure through third parties to support the collection of data transmitted from each system in our portal;
- Collection, storage and management of data transmitted by the Equipment.
1.2 Reasonable endeavours will be used by Us to collect data from the Equipment 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.
1.3 If there is a failure of data transmission or connection from any Equipment, the latest available data will be collected on the date of the next successful connection and transmission.
1.4 Static 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.
1.5 We will provide help desk support for Your authorised portal users (not Customers) 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 Equipment 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 determined by Us, 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
1.6 Our help desk support will be available during normal service hours (8.30 am to 6.00pm Monday – Friday, excluding bank holidays).
1.7 In respect of faulty Equipment 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 Equipment and SIMs.
1.8 We 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 these Terms. Portal updates incorporating new features providing significant enhancements to portal functionality will however be charged on an agreed basis.
1.9 We 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.
1.10 Access 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.
2 MAINTENANCE SERVICES
2.1 We 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.
3 SERVICE LEVELS
3.1 The Service Levels are as follows:
- 95% portal availability in any calendar month, excluding any planned maintenance period.
- Data will be successfully collected each week 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 set out in Schedule 2.
1 PORTAL SERVICES
1.1 The 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
2.1 The data set out in Schedule 3 will be available in the PassivPro and PassivLiving Portals subject to Your compliance with clause 6 and occurrence of any Events Outside of Our Control.
1 THE USE OF METERS AND OTHER MEASURING INSTRUMENTS
1.1 Data captured and recorded on our Portal:
- 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 2.1; 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
2.1 Data will be captured at the following intervals:
- 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;
2.2 Under 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
3.1 We will ensure that that data is:
- available for viewing by You (“the installer view” in PassivPro) and by the Customer (“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.
3.2 The installer view will:
- include all of the information recorded by all measuring instruments us over a period which is: at least the past 12 months; or if these Terms have been in force for less than 12 months, the period in which these Terms have 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.
3.3 The Customer view will:
- separately identify, as a minimum, each of the following sets of information recorded under these Terms:
- 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.
3.4 The Customer 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.
SMART CONTROL SERVICE (WHERE APPLICABLE)
1 SMART CONTROL SYSTEM
The Smart Control System learns the thermal characteristics of the Customer’s home allowing the Customer to set an appropriate comfort level and schedule. The Smart Control System calculates energy demand using weather forecasts and an optimisation to use renewable energy where possible.
2 ADVANCED SMART CONTROL SERVICE
2.1 The Advanced Smart Control Service includes the following:
- Heating control services through the PassivLiving App and PassivLiving Portal;
- Smart energy management services; and
- Software updates, telephone support, PassivLiving App and PassivLiving Portal maintenance and data analytics as part of the Advanced Smart Control Service and which is also included in respect of the Metering and Monitoring Services.
2.2 You will be responsible for paying the Smart Control Fee for the Advanced Smart Control Service.
2.3 The Advanced Smart Control Service will start on the commencement of the Initial Service Period and will end at the expiry of the Initial Service Period or otherwise on termination of the Contract.
2.4 If You or Your Customer (a) does not register an account on the PassivLiving Pro or PassivLiving Portal for any reason, or (b) cancels the registration of the PassivLiving account, the Contract will terminate.
2.5 At the end of the Initial Service Period, You and/or Your Customer can continue to use the Smart Control System by entering into an Advanced Smart Control Only contract or by using the Basic Smart Control Service. You or Your Customer will continue to be able to access the PassivLiving Portal and PassivLiving App provided You or Your Customer continue to register for an account. 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 Advanced Smart Control Only services after the Initial Service Period.
2.6 Should You or Your Customer choose to enter into an Advanced Smart Control Only contract, the fee payable will be required to be paid subject to an annual increase of no more than the Retail Price Index. The contract will be a rolling contract with a minimum period of one year which can be terminated by either party by giving either one month’s notice prior to the end of the initial one-year period or on one month’s notice prior to each subsequent anniversary.
3 BASIC SMART CONTROL SERVICE
3.1 The Basic Smart Control Service allows the Customer to use the Smart Control Hardware at the end of the Contract without making further payments.
3.2 The Basic Smart Control Service means the Customer can use the PassivLiving Portal and PassivLiving App to set their scheduling requirements and allow the Customer to choose how to heat their home. The PassivLiving App will have basic functionality only and will have limited intelligence. Use of the Basic Smart Control Service will be governed by the Terms and Conditions published on PassivSystems’ website at: https://passivsystems.com/terms-and-conditions/
Version: PAS-MMSP-018_MMSP Terms & Conditions V1.1, 25 April 2019