JustHeat-as-a-Service
Agreement

Part A: Participation Schedule

Part A is completed and signed by both parties. It records the following.

Background

Whereas:

A. The Landlord owns and manages residential properties to which this Agreement may apply.

B. The Landlord has arranged for the installation of the JustHeat heating system across their properties and will own the heat generation assets.

C. Following installation of the JustHeat System, and pursuant to this Agreement, the Service Provider will deliver a JustHeat-as-a-Service programme pursuant to which the JustHeat Systems and associated control platform installed in qualifying homes shall be operated by the Service Provider with the intention that each home is capable of being assessed under the RdSAP Heat-as-a-Service Convention.

Part B: Standard Terms

1. Interpretation

The following definitions and rules of interpretation apply in this Agreement.

1.1 Definitions

Accredited Installer means a qualified installer of the JustHeat system that has been accredited by Haydale Technologies Limited as being trained and able to install the JustHeat System;

EPC means Energy Performance Certificate;

Fees has the meaning as set out in Clause 5 and Schedule 3;

JustHeat® System means a residential heating system using the JustHeat® heater mats coupled with a thermostat, power supply and telemetric monitoring devices, properly specified for each Property;

Operator means the provider of the services as set out in Clause 3;

Party means either of the Landlord or the Service Provider, together referred to as the Parties;

Per Property Charge has the meaning as set out in clause 5;

Platform Charge has the meaning as set out in clause 5;

Properties means the properties owned by the Landlord which are subject to this Agreement as set out in Schedule 1 as updated from time to time and individually referred to as a Property;

RdSAP Heat-as-a-Service Convention or the Convention means convention 4.05b under the RdSAP Conventions version 12.2 as updated from time to time;

Services means those actions to be performed by the Service Provider as set out in clauses 2 and 3;

Service Period has the meaning set out in clause 6 (Term).

1.2 Clause and Schedule headings shall not affect the interpretation of this agreement.

1.3 A person includes a natural person, corporate or unincorporated body (whether or not having separate legal personality).

1.4 The Schedules form part of this agreement and shall have effect as if set out in full in the body of this agreement. Any reference to this agreement includes the Schedules.

1.5 A reference to a company shall include any company, corporation or other body corporate, wherever and however incorporated or established.

1.6 Unless the context otherwise requires, words in the singular shall include the plural and, in the plural, shall include the singular.

1.7 This agreement shall be binding on, and enure to the benefit of, the parties to this agreement and their respective personal representatives, successors and permitted assigns, and references to any party shall include that party's personal representatives, successors and permitted assigns.

1.8 A reference to legislation or a legislative provision is a reference to it as it is in force as at the date of this agreement.

1.9 A reference to writing or written excludes fax but not email.

1.10 Any obligation on a party not to do something includes an obligation not to allow that thing to be done.

1.11 A reference to this Agreement or to any other agreement or document is a reference to this Agreement or such other agreement or document, in each case as varied from time to time.

1.12 References to clauses and Schedules are to the clauses and Schedules of this agreement.

1.13 Any words following the terms including, include, in particular, for example or any similar expression shall be interpreted as illustrative and shall not limit the sense of the words preceding those terms.

2. The Initial Services and JustHeat System adoption

2.1 The Landlord shall arrange on a timely basis for the JustHeat System meeting all necessary minimum standards as specified at the relevant time in the Installation Guide published on the Haydale plc website for the system to qualify under the RdSAP Heat-as-a-Service Convention to be installed in each of the Properties by an Accredited Installer and notify the Service Provider of the installation arrangements. The Service Provider shall work with the Accredited Installer to ensure that the JustHeat System installation plan is designed to be capable of holding designated rooms at set-point temperatures during scheduled hours. The Landlord and Service Provider shall work together in good faith to ensure that the installation plan is signed off by each of the Accredited Installer, Service Provider and Landlord before installation begins.

2.2 Once installed, the Landlord shall provide a copy of the installation compliance certificate for each JustHeat System as issued by the Accredited Installer to the Service Provider.

2.3 Following notification, the Service Provider shall, on a timely basis, undertake such actions as may be necessary to verify that the JustHeat System has been properly designed and commissioned and that the telemetry and remote monitoring devices are properly functioning. The Service Provider shall make reasonable efforts to coordinate these actions with the Accredited Installer. Once verified, the Service Provider shall issue a Property Activation Certificate to the Landlord, a non-contractual Resident Comfort Notice and operating instructions for the Landlord to give to the resident.

2.4 The Service Provider shall prepare and maintain an Evidence Pack for each Property that sets out all information required by the Convention to evidence compliance including, but not limited to, an Activation Certificate, an extract of the Agreement, the Resident Comfort Notice and an assessor guidance sheet with a QR link to the Convention.

2.5 On issue of the Property Activation Certificate, the Landlord is deemed to have appointed the Service Provider to be the exclusive Operator of that JustHeat System for the Service Period.

2.6 The Parties will work together in good faith following each activation to ensure that the necessary assessments are completed and lodgements of revised EPCs are made to the relevant body to facilitate assessment of the JustHeat System under the Convention.

2.7 All intellectual property rights in the JustHeat platform, telemetry systems, analytics, software, documentation, reports, methodologies, know-how and operating procedures shall remain vested in the Service Provider.

3. The Services

3.1 Once appointed Operator, and subject to the Landlord continuing to comply with their obligations under this Agreement, the Service Provider shall be responsible for maintaining the JustHeat System including repair and replacement (if necessary) on a like-for-like basis of its component elements.

3.2 The Service Provider shall remotely monitor the operation of the JustHeat System at each Property using the installed telemetry devices to meet the minimum Service Level Standards set out in Schedule 2. In the event that an issue is identified, the Service Provider shall notify the Landlord on a timely basis and the Landlord shall arrange access to the Property for the issue to be investigated and resolved.

3.3 The Landlord may notify the Service Provider if they consider there to be a fault with the JustHeat System and the Service Provider will respond within the time frames set out in Schedule 2 (Service Level Standards).

3.4 For the avoidance of doubt, the Service Provider is not responsible for removal or replacement of floor coverings, making good, the electrical supply up to the JustHeat System, the internet connection to the telemetry equipment, or any other issue not directly related to the JustHeat System.

3.5 In the event that the Landlord or Resident initiates a callout, the cause of which is not related to the JustHeat System itself, an additional Call Out Fee shall apply as set out in Schedule 3 (Fees).

3.6 The Service Provider shall maintain a reasonable level of parts and spares to enable it to respond in line with the Service Level Standards set out in Schedule 2.

3.7 The Service Provider shall maintain appropriate business insurances to cover the services provided under this contract including professional indemnity.

4. The Landlord's ongoing obligations

4.1 The Landlord is responsible for managing the residents of each of the Properties and the Service Provider shall not, unless so authorised by the Landlord, contact residents directly.

4.2 Upon an access request being notified to or by the Landlord, the Landlord shall ensure that access to each Property is granted for the Service Provider to enter and undertake the necessary work on reasonable notice and during normal working hours.

4.3 The Landlord shall procure that adequate insurance cover is maintained including public liability, and specifically buildings and contents insurance that covers normal insured risks for matters that fall outside of the Service Provider's responsibility including, for the avoidance of doubt, to cover any remedial work not directly related to the JustHeat System.

4.4 The Landlord shall ensure that a compliant electricity supply and internet connection for the installed telemetry devices is maintained at all times to the JustHeat System.

4.5 If the telemetry connection to a JustHeat System is unavailable for more than 48 consecutive hours, the Landlord shall take reasonable steps to restore connectivity. Where telemetry connectivity remains unavailable for more than 30 consecutive days, the Service Provider may suspend any obligations wholly or partly reliant on telemetry data without liability, including monitoring, reporting, maintenance verification and the maintenance of the Evidence Pack, until connectivity has been restored.

4.6 The Service Provider does not warrant or guarantee any particular EPC rating, EPC improvement, RdSAP outcome, funding eligibility or regulatory classification. Any assessment remains subject to the prevailing RdSAP methodology, assessor judgement and applicable regulatory requirements from time to time.

5. Fees

5.1 Fees for the Services shall comprise two components: a fixed Platform Charge and a variable Per Property Charge. The Fees shall be invoiced by the Service Provider at least two weeks in advance of the start of the quarter with any truing up of charges for Properties connected within the quarter to be added to the next quarter's invoice. The initial invoice shall be for the Platform Charge only. Fees are detailed in Schedule 3. All Fees exclude VAT.

5.2 The Landlord shall pay for the Services quarterly in advance as set out on the invoice from time to time.

5.3 The Service Provider may charge the Landlord interest on any overdue sums at the rate of 4% per annum above the base lending rate of HSBC from time to time. Interest will accrue on a daily basis from the due date for payment until the actual date of payment of the overdue sum, whether before or after judgment.

5.4 Fees are subject to an annual uplift based on the higher of RPI and 3%, which shall apply on each anniversary of this Agreement.

5.5 The Platform Charge shall be payable from the Effective Date until the end of the quarter following the cessation of Services to the last Property covered by this Agreement from time to time (“Master Agreement Termination”).

5.6 The Per Property Charge includes the replacement of parts which have failed for reasons of normal wear and tear. For the avoidance of doubt, the Service Provider is entitled to charge at cost plus a handling charge of 20% for the replacement of any system components reasonably required for any other reasons including third party damage to the JustHeat System.

5.7 The Per Property Charge shall apply irrespective of whether or not the Property is occupied and the JustHeat System being used.

5.8 The Service Provider is entitled to charge an additional Call Out Fee as set out in Schedule 3 where:

1. access to the Property cannot be gained within 30 minutes of the scheduled time where the Service Provider attends an agreed appointment;
2. any preparatory work to gain access to the JustHeat System which is the responsibility of the Landlord has not been undertaken; and
3. pursuant to clause 3.5 for Landlord initiated call outs for issues shown to be not related to the normal operation of the JustHeat System.

5.9 For the avoidance of doubt the Service Provider is not responsible for the supply of electricity or internet connection to the JustHeat System or the cost thereof.

6. Term and termination

6.1 This agreement shall come into effect on the Effective Date and, subject to the remaining terms of this Agreement, shall continue in full force and effect until the end of the quarter following the cessation of Services to the last Property covered by this Agreement from time to time (“Master Agreement Termination”).

6.2 Each Property shall be covered for an initial term of 12 months from the date of its Activation Certificate (“Property Term”). Provided the Landlord is not in breach of this Agreement, each Property Term may be extended on the same terms to be coterminous with the last Property activated at the option of the Landlord giving at least 3 months' notice before the expiry of the Property Term in writing to the Service Provider.

6.3 Either Party shall be entitled to terminate this Agreement at any time, including during the currency of any Project, by notice in writing to the other if:

1. the other party commits a material breach of any term of this agreement (including for non-payment of fees) and (if such breach is remediable) fails to remedy that breach within a period of 30 days after being notified in writing to do so.
2. the other party suspends, or threatens to suspend, payment of its debts or is unable to pay its debts as they fall due or admits inability to pay its debts or (being a company or limited liability partnership) is deemed unable to pay its debts within the meaning of section 123 of the Insolvency Act 1986 as if the words "it is proved to the satisfaction of the court" did not appear in sections 123(1)(e) or 123(2);

6.4 Without prejudice to any other remedies available to the Service Provider, in the event of the Landlord's non-compliance with clause 4 (Landlord's Obligations) or clause 5 (Fees), the Services shall be deemed suspended until any non-compliance matters have been resolved and the Service Provider shall not be under any obligation to deliver the Services during such periods of suspension. For the avoidance of doubt, the Landlord shall still be liable to pay Fees in accordance with clause 5 during any period of suspension arising under this clause 6.4.

6.5 The Landlord acknowledges that under the Convention assessment depends on the continued operation of this Agreement. In these circumstances (which includes, but is not limited to, suspension of the Services arising under clause 6.4 not remedied within a timely period, termination of this Agreement for whatever reason and damage to, interference with, or prolonged loss of telemetry connectivity with the JustHeat System) the Evidence Pack is withdrawn, and the homes may cease to qualify at any subsequent assessment and the Service Provider may notify the relevant accreditation scheme.

6.6 Upon the termination of this Agreement for any reason:

1. any sum owing by either Party to the other Party under any of the provisions of this Agreement shall become immediately due and payable;
2. any rights or obligations to which any of the Parties to this Agreement may be entitled or be subject before its termination shall remain in full force and effect where they are expressly stated to survive such termination;
3. termination shall not affect or prejudice any right to damages or other remedy which the terminating Party may have in respect of the event giving rise to the termination or any other right to damages or other remedy which either Party may have in respect of any breach of this Agreement which existed at or before the date of termination;
4. save as provided in this Clause 6.6, and except in respect of any accrued rights, neither Party shall be under any further obligation to the other; and
5. the following clauses shall continue to apply: 6.6 (Post Termination), 8 (Data Protection), 14 (Limit of Liability), 17 (Governing Law), 18 (Jurisdiction) and 20 (Entire Agreement).

7. Warranties

7.1 Each of the Parties warrants that it has full power and authority to carry out the actions contemplated under this Agreement, and that its entry into and performance under the terms of this Agreement will not infringe the rights of any third party or cause it to be in breach of any obligations to a third party.

7.2 The Service Provider further warrants that:

1. it will perform the Services in a professional manner with reasonable skill and care, using suitably qualified personnel;

7.3 The Landlord further warrants and undertakes that:

1. They have title to the JustHeat Systems installed in each of their Properties;
2. They shall not (and procure that any third Party or resident shall not) adjust, service, modify, interfere or otherwise tamper with the JustHeat System while the Services subsist; and
3. They shall maintain both a suitable power supply and internet connection on a 24/7 basis to each JustHeat System whilst the Services subsist.

8. Data Protection

8.1 In this Clause 8, “personal data”, “processing”, “data subject”, “controller”, “processor”, and “personal data breach” shall have the meanings defined in Article 4 of the UK GDPR, and the terms “Data Processor” and “Data Controller” shall have the same meanings as “processor” and “controller” respectively.

8.2 The Parties hereby agree that they shall both comply with all applicable data protection requirements set out in the Data Protection Legislation. This Clause 8 shall not relieve either Party of any obligations set out in the Data Protection Legislation and does not remove or replace any of those obligations.

8.3 For the purposes of the Data Protection Legislation and for this Clause 8, the Service Provider is the “Data Processor” and the Landlord is the “Data Controller”.

8.4 The type(s) of personal data, the scope, nature and purpose of the processing, and the duration of the processing are set out in Schedule 4.

8.5 The Data Controller shall ensure that it has in place all necessary privacy notices, lawful bases and other measures required to enable lawful processing and transfer of personal data to the Data Processor for the purposes described in this Agreement.

8.6 The Data Processor shall, with respect to any personal data processed by it in relation to its performance of any of its obligations under this Agreement:

1. Process the personal data only on the written instructions of the Data Controller unless the Data Processor is otherwise required to process such personal data by law. The Data Processor shall promptly notify the Data Controller of such processing unless prohibited from doing so by law;
2. Ensure that it has in place suitable technical and organisational measures (as approved by the Data Controller) to protect the personal data from unauthorised or unlawful processing, accidental loss, damage or destruction. Such measures shall be proportionate to the potential harm resulting from such events, taking into account the current state of the art in technology and the cost of implementing those measures. Measures to be taken are set out in Schedule 4;
3. Ensure that any and all staff with access to the personal data (whether for processing purposes or otherwise) are contractually obliged to keep that personal data confidential;
4. Not transfer any personal data outside of the UK without the prior written consent of the Data Controller and only if the following conditions are satisfied:
   1. The Data Controller and/or the Data Processor has/have provided suitable safeguards for the transfer of personal data;
   2. Affected data subjects have enforceable rights and effective legal remedies;
5. The Data Processor complies with its obligations under the Data Protection Legislation, providing an adequate level of protection to any and all personal data so transferred; and
6. The Data Processor complies with all reasonable instructions given in advance by the Data Controller with respect to the processing of the personal data;

8.7 Assist the Data Controller at the Data Controller's cost, in responding to any and all requests from data subjects and in ensuring its compliance with the Data Protection Legislation with respect to security, breach notifications, impact assessments, and consultations with supervisory authorities or regulators (including, but not limited to, the Information Commissioner's Office);

8.8 Notify the Data Controller without undue delay of a personal data breach;

8.9 On the Data Controller's written instruction, delete (or otherwise dispose of) or return all personal data and any and all copies thereof to the Data Controller on termination of this Agreement unless it is required to retain any of the personal data by law; and

8.10 Maintain complete and accurate records of all processing activities and technical and organisational measures implemented necessary to demonstrate compliance with this Clause 8 and to allow for audits by the Data Controller and/or any party designated by the Data Controller.

8.11 The Data Controller grants a general authorisation for the appointment of sub-processors. The Data Processor shall provide at least 30 days' prior notice of any intended addition or replacement of a sub-processor and the Data Controller may object on reasonable data protection grounds. In the event that the Data Processor appoints a sub-processor, the Data Processor shall:

1. Enter into a written agreement with the sub-processor, which shall impose upon the sub-processor the same obligations as are imposed upon the Data Processor by this Clause 8 and which shall permit both the Data Processor and the Data Controller to enforce those obligations; and
2. Ensure that the sub-processor complies fully with its obligations under that agreement and the Data Protection Legislation.

8.12 Either Party may, at any time, and on at least 30 days notice, alter this Clause 8, replacing it with any applicable data processing clauses or similar terms that form part of an applicable certification scheme. Such terms shall apply when replaced by attachment to this Agreement.

9. Costs

Subject to any provisions to the contrary each Party to this Agreement shall pay its own costs of and incidental to the negotiation, preparation, execution and carrying into effect of this Agreement.

10. Counterparts

This Agreement may be entered into in any number of counterparts and by the Parties to it on separate counterparts each of which when so executed and delivered shall be an original, but all the counterparts together shall constitute one and the same instrument. This Agreement may be executed by electronic communication in portable document format (.pdf), and the Parties agree that their electronic transmitted signatures shall have the same effect as manually transmitted signatures. Delivery of a copy of this Agreement bearing an original or electronic signature by electronic mail in “portable document format” (“.pdf”) form, or by any other electronic means intended to preserve the original graphic and pictorial appearance of a document, will have the same effect as physical delivery of the paper document bearing an original or electronic signature.

11. Force majeure

11.1 No Party to this Agreement shall be deemed to be either in breach of its obligations due to, or liable for, any failure or delay in performing their obligations where such failure or delay results from any cause that is beyond the reasonable control of that Party. Such causes include, but are not limited to: power failure, internet provider failure, industrial action, civil unrest, fire, flood, storms, earthquakes, acts of terrorism, acts of war, governmental action or any other event that is beyond the reasonable control of the Party in question.

12. Assignment and other dealings

12.1 The Service Provider may assign the receivables under this Agreement to a funder. Operation of the heat generators is non-delegable and unaffected by any assignment.

12.2 The Landlord will provide reasonable cooperation with the Service Provider funding arrangements (acknowledgements and payment direction only; no additional obligations).

12.3 The Service Provider may assign or subcontract any or all of its rights and obligations under this agreement to a member of its Group.

12.4 The Service Provider may, after having given prior written notice to the Landlord assign its rights under this Agreement to any person to which it transfers that part of its business to which this Agreement relates, provided that the assignee undertakes in writing to the Landlord to be bound by the Service Provider's obligations under this Agreement.

13. Notices

13.1 Any notice given to a Party under or in connection with this Agreement shall be in writing and shall be:

1. delivered by hand or by pre-paid first-class post or other next working day delivery service at its registered office (if a company) or its principal place of business (in any other case); or
2. sent by email to the Notification Addresses set out in Part A (or to an address substituted in writing by the party to be served from time to time):

13.2 Any notice shall be deemed to have been received:

1. if delivered by hand, at the time the notice is left at the proper address;
2. if sent by pre-paid first-class post or other next working day delivery service, at 9.00 am on the second Business Day after posting; or
3. if sent by email, at the time of transmission, or, if this time falls outside Business Hours in the place of receipt, when Business Hours resume.

13.3 This clause 13 does not apply to the service of any proceedings or other documents in any legal action or, where applicable, any arbitration or other method of dispute resolution.

14. Limit of Liability

14.1 Nothing in this Agreement excludes liability for:

1. death or personal injury caused by negligence;
2. fraud; and
3. any liability that cannot legally be excluded.

14.2 The Service Provider's aggregate liability under the Agreement shall not exceed 100% to 200% of fees paid in preceding 12 months.

14.3 Neither Party shall be liable for indirect, consequential or special losses including but not limited to loss of grant funding, loss of subsidy, loss of EPC benefits, loss of anticipated energy savings or reputational loss.

15. Variation

15.1 No variation of this Agreement shall be effective unless it is in writing and signed by the Parties (or their authorised representatives).

16. Waivers

16.1 A waiver of any right or remedy is only effective if given in writing and shall not be deemed a waiver of any subsequent right or remedy.

16.2 A delay or failure to exercise, or the single or partial exercise of, any right or remedy shall not waive that or any other right or remedy, nor shall it prevent or restrict the further exercise of that or any other right or remedy.

17. Governing law

This Agreement and any dispute or claim (including non-contractual disputes or claims) arising out of or in connection with it or its subject matter or formation shall be governed by and construed in accordance with the law of England and Wales.

18. Jurisdiction

Each Party irrevocably agrees that the courts of England and Wales shall have exclusive jurisdiction to settle any dispute or claim (including non-contractual disputes or claims) arising out of or in connection with this Agreement or its subject matter or formation.

19. Severance

If any provision or part-provision of this Agreement is or becomes invalid, illegal or unenforceable, it shall be deemed modified to the minimum extent necessary to make it valid, legal and enforceable. If such modification is not possible, the relevant provision or part-provision shall be deemed deleted. Any modification to or deletion of a provision or part-provision under this clause shall not affect the validity and enforceability of the rest of this Agreement.

20. Entire agreement

20.1 This Agreement constitutes the entire agreement between the parties and supersedes and extinguishes all previous and contemporaneous agreements, promises, assurances and understandings between them, whether written or oral, relating to its subject matter.

20.2 Each Party acknowledges that in entering into this Agreement it does not rely on, and shall have no remedies in respect of, any statement, representation, assurance or warranty (whether made innocently or negligently) that is not set out in this Agreement.

20.3 No part of this Agreement is intended to confer rights on any third parties and accordingly the Contracts (Rights of Third Parties) Act 1999 shall not apply to this Agreement.