1.1. This document (General Terms and Conditions) contains the provisions, general terms and conditions applicable to the use of the products and services of the Destiny Company. As a user of the products and services of Destiny, the Customer agrees with these General Terms and Conditions.
1.2 These General Terms and Conditions can only be changed subject to Destiny’s written agreement.
1.3 The details regarding the service levels and guarantees associated to the Destiny products and services are available in a separate document entitled “Service Level Agreement” (SLA).
2.1 “Destiny”: the company Destiny N.V., which has its registered office at Excelsiorlaan 89, 1930 Zaventem, Belgium, with VAT number BE 0442 894 476;
2.2 “Agreement” refers to the agreement concluded between Destiny and the Customer, the provisions of which are laid down in an Order Form and to which these General Terms and Conditions apply;
2.3 “Order Form” refers to the form that designates the products and services required by the Customer, also mentioning the services profiles and technical information needed to deliver the services as well as the prices for such services;
2.4 “Customer” refers to natural or legal persons, or associations who or which purchase products or services from Destiny;
2.5 “Products and Services”: the products and services supplied by Destiny as specified on the “Order Form”;
2.6 “Network” refers to the telecommunications network that is used to provide the Customer with the Services;
2.7 “Site” is a building at the address of which the Destiny services will be delivered within the scope of this Agreement;
2.8 “Service Equipment”: refers to any equipment installed at the site by Destiny, within the scope of the Agreement. This includes e.g. the Access Gateway and the Terminating Equipment (non limitative list).
2.9 “Access Gateway”: a Service Equipment, the device directly connected to the access network wiring entering the site (e.g. copper, coax, fiber) within the scope of the Agreement;
2.10 “Terminating Equipment”: a Service Equipment, the device used to connect the Destiny service to the Customer’s local network in the site, within the scope of the Agreement;
2.11 “Internal cabling”: is the cable laid in the site and deployed by the Customer, which connects the Access Gateway and the Terminating Equipment.
2.12 “Rates”: price and charges that shall be invoiced for products and services provided
2.13 “BIPT” is the Belgian Institute for Postal and Telecommunications Services, which is an independent institution established by the Law of 21 March 1991 related to the restructuring of certain governmental enterprises. The BIPT cares for a fair operation of the Belgian telecommunications market, and for fair relationships between the various operators;
2.14 “Rush Order”: when the Customer explicitly requests a service to be provided within a time span that is shorter than the standard delivery time, such a service provision is regarded as a Rush Order. A Rush-Order is subject to a prior acceptance by Destiny ;
2.15 “Service Level Agreement (SLA)”: the document that describes the service levels and guarantees associated with Destiny Products and Services.
3. General Terms and Conditions
3.1 If any provision in the present General Terms and Conditions or in the User’s Agreement between the parties is declared null, invalid or non-applicable, this shall in no manner whatsoever prejudice the validity of the other provisions of these General Terms and Conditions.
3.2 Within the scope of this Agreement, on-line communication and electronic mail correspondence shall have the same evidential value as written documents, to the extent that parties did not explicitly agree to or impose any other manner of notification in these General Terms and Conditions, for example registered letter.
3.3 All communication to Destiny must be addressed to the registered office. Unless otherwise agreed, all notifications to the Customer shall be sent to the address stated in the Agreement. Destiny and the Customer undertake to notify the other party as quickly as possible of any change that could influence the Agreement and its application, such as change in identification, location and billing information, for example.
3.4 At any point in time, Destiny can transfer its rights and obligations arising from the Agreement to an affiliate, associate or subsidiary company in which it possesses the majority vote. If Destiny is merged with, absorbed or taken over by a third party, the Agreement with the Customer shall automatically be transferred to the new entity. Destiny shall inform the Customer accordingly in the appropriate manner.
3.5 If Destiny is compelled by the Belgian or European authorities to change the Agreement or to terminate certain Services forming the object of the Agreement, it shall be entitled to apply such changes or, respectively, to terminate the relevant Services, without the Customer being entitled to any right to compensation for this.
3.6 Belgian law applies to disputes relating to the application of these General Terms and Conditions and compliance with the terms and conditions of use. Any dispute regarding the interpretation or application of the agreements between the parties falls under the exclusive competence of the Courts of the Judicial District of Brussels.
4. Order Procedure
4.1 The Services ordered by the Customer within the scope of the Agreement on a certain Site are set out in the Order Form. If, after he, she or it has signed the Agreement, the Customer wishes to order additional products and services or would like to connect other Sites within the scope of an existing Destiny service, he, she or it shall sign an addendum containing the relevant details, which shall be attached to the original Agreement and shall constitute an integral part of it.
4.2 The term for any additional product or service shall coincide with the term of the original Agreement, subject to any explicit provision to the contrary and on the understanding that a minimum term of one (1) year per Agreement shall apply, which is to be calculated from of the date on which the (additional) relevant Destiny Services on the Site are put into operation.
5. Destiny’s rights and obligations
Service Delivery – Equipment Installation
5.1 The Service shall be delivered per Site and shall include the connection of the Site to the Destiny Network and the activation of the Destiny Services ordered.
5.2 A Site is regarded as being operational as soon as the Destiny services thereon are available. Destiny shall provide the Customer with a written confirmation of the date on which the Site shall be put into operation.
5.3 If the Customer has placed a valid Rush Order, the terms and conditions stated in the respective Order Form shall apply to the delivery of the Service.
5.4 The Service Equipment shall be installed at the address of the Site(s) stated in the Order Form and shall at all times remain the property of Destiny.
5.5 Installation charges of the Service Equipment are included in the price, on the condition that a competent representative of the Customer is present on the date on which such installation is done on the respective Site and to the extent that the Customer has taken all reasonable measures required for installation, including the deployment of the Internal Cabling, if required (see 9.3). If a new intervention is required to perform the installation due a fault or omission on the side of the Customer, a flat-rate fee of EUR 200 shall be owed ipso jure, which shall be charged to the Customer’s invoice.
5.6 If technical considerations so requires, Destiny can temporarily or definitively replace all or part of the Service Equipment by other Service Equipment that has at least the same functionality, without price increase and after it has informed the Customer accordingly.
5.7 Destiny shall be the sole party to determine which technical resources and routing systems are required to access and operate the Services. If operating and organisational conditions require that changes be made to the technical properties, Destiny can make such change to the extent that this has no negative influence on the costs for the Customer or on the quality of the service provision.
5.8 Destiny has the right to block or restrict access to certain Internet ports or IP addresses through which contravention of the law or regulations has been constituted.
5.9 With regard to the particular nature of the object of this Agreement and, more specifically, the collaboration that this requires with third parties such as Belgacom and the BIPT, Destiny reserves the right to apply changes to the Agreement and/or Services, which changes are caused by changes to the services provided by BIPT and/or Belgacom or amendments to the regulations and conditions of BIPT and/or Belgacom. The Customer shall be charged for the resulting change to the Services or price increase. Destiny shall inform the Customer in advance of its intention to implement a change to the Agreement
6. The Customer’s rights and obligations
6.1 The Customer is responsible for using the Service as a diligent and conscientious user in accordance with the applicable laws and regulations and may not use it for unlawful purposes.
6.2 The Customer declares that he, she or it has all the necessary permits at his, her or its disposal to accept and use the Service.
6.3 The Customer must ensure that he, she or it duly respects the intellectual property rights, including copyright of Destiny or of third parties.
6.4 The Service Equipment installed on the Site is the property of Destiny. The Customer shall manage, safeguard and maintain this equipment with due care and diligence. In particular, the Customer must ensure that no third parties whosoever have any access to the Service Equipment without the permission of Destiny or the Customer and that no third parties whosoever can use the Services.
6.5 The Customer undertakes to inform Destiny in due time and with the greatest precaution of the adjustments relating to the Site and other adjustments or changes which can have an impact on the Service Equipment installed or the Services provided.
6.6 In the particular case of a change of address, the Customer shall inform Destiny of the actual change at least 2 months in advance unless, in the case of force majeure, this requires a shorter term.
6.7 If the Customer requests to be re-connected subsequent to a previous termination of the Agreement, Destiny reserves the right to only establish such re-connection to the extent that the Customer provides a bank guarantee and/or pays the costs for the connection.
6.8 The Customer cannot transfer his, her or its rights to a third party, unless Destiny explicitly agrees.
6.9 The Customer shall be obliged to return the Service Equipment to Destiny within fifteen working days of the end of the Agreement, whatever the cause of such end, including termination at Destiny’s liability. If Destiny fetches the Service Equipment from the Customer, Destiny shall invoice the former for the costs of removing such Service Equipment.
7. Contract term, termination and suspension
7.1 The Agreement comes into effect on the Date on which the service is operational at the site and shall be concluded for the term laid down in the Order Form.
7.2 The Agreement shall be tacitly extended for consecutive periods of one year, unless one of the parties terminates the Agreement by giving notice by registered letter at least three (3) months before the end of the current contract term.
7.3 If the Agreement, Service or part thereof is terminated early at one or more of the Customer’s Sites, the following compensation for damages shall be owed to Destiny:
– If the Customer terminates the Agreement early, he, she or it shall pay a flat-rate amount of compensation for damages equal to the subscription costs for the months remaining until the end of the (minimum) term of the contract.
– If the Customer terminates the Agreement early, he, she or it shall be required to repay the reductions allocated. Destiny also reserves the right to re-calculate the rates, taking into account the new volume, in the case of early termination of a part of the Services on one or more Sites by the Customer.
7.4 In the case of early termination, any arrangements made relating to postponed payment shall be cancelled and the outstanding amounts for installation and infrastructure costs and all outstanding invoice amounts, even including those that have not yet become due, shall be payable immediately.
7.5 Destiny shall not claim any compensation for damages if the Site cancelled is immediately replaced by a new equivalent Site (having the same band width, services and SLA).
7.6 Destiny or the Customer can terminate the Agreement at all times if the other party does not meet his, her or its obligations arising from the Agreement.
7.7 If the Customer does not meet his, her or its obligations arising from the Agreement, Destiny can fully suspend the Service pursuant to written notice of default. In such a case, Destiny is entitled to fixed compensation for damages to be charged for the amount of the subscription costs for the months still remaining until the end of the Agreement, increased by the costs needed to terminate the Service Provision
8. Services provided, prices and payments
8.1 The services provided and corresponding prices are listed on the Order Form.
8.2 A monthly invoice is drawn up for the services provided to the Customer and for the amount owed by the Customer for the total of the Services delivered by Destiny in the execution of the Agreement.
8.3 Invoices are payable, at the latest, on the fifteenth (15th) calendar day following invoice date. Payment must be made into the bank account number provided, stating the invoice data, unless a different arrangement has been made with the Customer.
8.4 After the payment term has expired, the Customer shall owe, ipso jure and without notice of default, delayed payment interest based on an annual interest rate of 12%, whereby each month commenced shall be counted as a full month. If payment is made late, a fixed amount of compensation for damages shall also be owed ipso jure, which shall amount to 15% of the outstanding invoice amount owed, with a minimum of EUR 125.00. If the Customer does not remit the owed amount within 15 days after a reminder has been sent, Destiny shall be entitled to suspend the execution of the Agreement until such time as full payment has been made or to regard the Agreement as terminated ipso jure without further notice of default. Destiny reserves the right to recover all the damage it has suffered from the Customer, whereas the Customer shall not be entitled to any compensation at all for damages due to Services being suspended or terminated.
8.5 Any complaints relating to Services provided or amounts invoiced must reach Destiny within 15 days after invoice date. If this is not done, Services shall be deemed to have been provided correctly in accordance with the Customer’s wishes and the invoice shall be regarded as having been accepted, whereby the Customer’s acceptance also extends to acceptance of the General and Special Terms and Conditions.
9.1 The Customer must use the Service Equipment made available by Destiny as specified in the relevant Order Form to be able to use the Destiny services.
9.2 The Service profiles, technical information and prices are stated on the Order Form.
9.3 The service levels are set out in the Service Level Agreement (SLA) approved by the Customer.
9.4 Prior to the installation by Destiny, the Customer must ensure that its Internal Cabling has been deployed between:
– the room where the access network wiring is entering the site and where the Access Gateway will be installed, and
– the area where the Customer wants the services to be provided, i.e. where the Terminating Equipment will be installed.
If the Customer wishes, Destiny may offer the cabling deployment service, subject to an accepted proposal through an order form.
For the Service Equipment, the Customer shall provide a dust-free non-humid area with a connection of 230V. For the Terminating Equipment, the Customer shall provide a space where the Terminating Equipment can connect to the Customer’s local network with a cable of maximum 2 meters.
If a new intervention is required to perform the installation due a fault or omission on the part of the Customer, a flat-rate fee of EUR 200 shall be owed ipso jure, which shall be charged to the Customer’s invoice
9.5 If equipment is purchased:
- the equipment remains Destiny’s property until the purchase price is paid in full. If the equipment is damaged, the unpaid part of the selling price shall be claimable immediately. All risks relating to damage, destruction, loss or theft shall be transferred to the Customer as soon as the equipment is delivered or fetched or as of the date on which the Customer was obliged to take delivery of it or to take it with him, her or it;
- the Customer shall be granted a guarantee on the parts of the equipment purchased from Destiny as it is granted by the manufacturer of the Terminal Equipment, within the limits determined by the latter and for a period not exceeding one(1) year, to be calculated as of date of purchase;
- Destiny shall not refund or exchange equipment, except in application of the guarantee.
10.1 Faulty Service Provision caused by a third party (such as Belgacom and/or the BIPT) is regarded as force majeure, for which Destiny shall not bear any liability whatsoever.
10.2 Under no circumstances whatsoever shall Destiny be responsible for the infrastructure used by the Customer and/or appliances belonging to him, her or it. Within the scope of this Agreement and these General Terms and Conditions, Destiny’s liability shall be confined to the Terminal Equipment.
10.3 Destiny cannot be held responsible for any delay or failure in the performance of the Service if this is the result of circumstances beyond Destiny’s control, is unforeseeable and which Destiny cannot avoid, such as, but not restricted to, war, uprising, explosion, strikes or social conflicts (including those involving own staff), flood, persistent frost, fire, storm or acts by third parties (such as breach of contract by a supplier or supply interruption at Destiny’s suppliers).
10.4 Neither can Destiny be held liable if the Customer does not meet his, her or its obligations. The Customer shall refrain from using the Service in a manner endangering proper operation of its Service or the capacity of the Network for other customers.
10.5 Destiny cannot be held responsible for the contents of data that are accessible through the Internet. The Customer shall be responsible for managing his, her or its data, which means, for example, that he, she or it shall be responsible for taking precautionary measures to avoid data from being lost (by means of back-up, for example) or fraudulent access to his, her or its computer system by way of the Internet or connection with other types of networks.
10.6 Destiny can also not be held responsible for the services that are accessible through the Destiny network, nor for the invoicing of such services if these were provided by third parties.
10.7 Destiny can only be held responsible in cases of wilful intent, gross negligence or fraud. If Destiny has not met an essential obligation, its liability shall be confined to repairing all actual or foreseeable, direct and personal damage suffered personally by the Customer, to the exclusion of any indirect or immaterial damage such as, but not restricted to, operational loss, lost income and profit, loss of customers, loss of or damage to data, loss of contracts and additional costs.
10.8 Destiny’s liability is in all respects limited to the remaining subscription cost until the end of the Agreement.
10.9 Claims by the Customer under these User’s Terms and Conditions exclude any other claims and are confined to those explicitly stated in these User’s Terms and Conditions.
10.10 The Customer shall in all cases continue to bear sole responsibility for the content of any communication which he, she or it sends or receives by way of the Destiny network. Under no circumstances whatsoever can Destiny be held responsible or liable for content communicated by the Customer.
11. Complaints and disputes
11.1 Destiny shall make a contact person available to resolve disputes regarding Service provision. Destiny shall make the necessary efforts reasonably required to solve such problems.
11.2 Complaints regarding charges must be submitted 15 days after invoice date.
11.3 Complaints regarding interruption or suspension of service must be submitted 10 days after the connection was interrupted or suspended. If the complaint is submitted after this term, no account shall, for the purposes of any possible payments, be taken of the term between the tenth day and the day on which the complaint was submitted.
11.4 If Destiny does not make a decision within a reasonable term or if the Customer does not agree with Destiny’s decision, the former can address the Ombudsdienst (Service of the Ombudsman) for Telecommunications (Barricadenplein, 1 te 1000 Brussel, tel 02/209 15 12 fax 02/219 86 59, email@example.com, www.ombudsmantelecom.be), established by law by the BIPT.