General Terms and Conditions

1. Definitions

Delivery period: the period as defined in article 3.2 of the General Terms and Conditions.

BIPT: Belgian Institute for Post and Telecommunications as referred to in article 13 of the Law of 17 January 2003 on the status of the regulator of the Belgian postal and telecommunications sector.

Destiny NV: the NV (public limited company) Destiny with registered office at Excelsiorlaan 89, 1930 Zaventem, with RPR number 0442.894.476, owner of the public electronic communications network that is used for providing the Service(s) to the Customer as set out in the Agreement.

Customer: the legal entity as defined in the Service Order Form who, as end-user (subscriber) purchases the Service(s) from Destiny NV in accordance with the provisions of the Agreement.

If explicitly stated in the Service Order Form, the Customer includes companies affiliated with the Customer.

SME Customer: A Customer with maximum 5 numbers (not including numbers for M2M services) that uses the Service(s) for strictly business and professional purposes, with the exclusion of consumers.

Service: The service or group of services as defined in the Special Terms and Conditions that Destiny NV provides to the Customer in accordance with the provisions of the Agreement, in exchange for the Fee.

Fee: The compensation and costs as determined in the Agreement, which the Customer must pay to Destiny NV for the use of the Service(s) with the exclusion of third-party settlements.

The Law:                The law of 13 June 2005 on electronic communications

Destiny – Backbone (MPLS): The public electronic communications network of Destiny NV, including the Associated facilities and Access Points

Destiny – Fixed network: the Destiny Backbone including the Destiny-connection network but with the exclusion of the Customer-connection network used by Destiny NV to provide its Customers with the (fixed) Services

Destiny – Mobile network: The electronic communications network including Associated facilities used by Destiny NV to provide its Customers with the (mobile) Services.

Destiny – network: The Destiny – Fixed network and/or the Destiny – Mobile network.

SIM card: the ‘Subscriber Identity Module’ card, which remains at all times the property of Destiny NV, and which, when inserted in the authorised and permitted Terminal Equipment, grants a Customer access to the Destiny – Mobile network and to the agreed (mobile) Services.

Terminal Equipment: a product or the relevant part of a product that may or may not have been provided by Destiny NV, that enables electronic communications and is intended for direct or indirect connection with the interfaces of a public electronic communications network.

Associated facilities: all of the physical infrastructure, facilities and components of Destiny NV associated with the Destiny-network and Destiny Service(s) that enable or support the provision of the Service(s) to the customers of Destiny NV, including all hardware and software for this purpose.

Access Point: The physical point where the connection network comes into contact with the Destiny-Backbone.

Destiny-connection network: The physical circuit and accessories that connect the Network Connection Point with the Access Point and that is supplied and maintained by Destiny NV or by a third party designated by Destiny NV.

Customer–connection network: The physical circuit and accessories that connect the Network Connection Point with the Access Point and that is supplied and maintained by a third party designated by the Customer.

Network Connection Point: The physical point between the Location and the Destiny-connection network or the Customer-connection network.

Customer Equipment: All of the Customer’s (terminal) equipment, hardware and software that is necessary at the Location for the delivery or use of the Service(s) owned exclusively by and under the exclusive management of the Customer or a third party designated by the Customer.

Destiny-equipment: All equipment, hardware and software that is necessary at the Location for the delivery or use of the Service(s) owned exclusively by and under the exclusive management of Destiny NV or a third party designated by Destiny NV.

Destiny-equipment also includes specific configurations and modifications of and to the Customer Equipment carried out by Destiny NV or by a third party designated by Destiny NV.

Location(s): The Customer’s infrastructure and/or facility that is connected with the Access Point by means of the Destiny-connection network or the Customer-connection network and where and/or between which the Service(s) is (are) delivered as defined in the Service Order Form.

The Location can be housed with a third-party supplier designated by the Customer.

Service Order Form:             The Destiny NV order form that has been fully and accurately completed, including, non-exhaustively, the Customer’s identification details, the Location(s) (if applicable), the Service(s) (if applicable), the indicative delivery period (if applicable), the number of SIM cards (if applicable), the duration of the Agreement, the Fee(s) and the type of connection network (if applicable).

Party or Parties: Destiny NV, on one hand, and the Customer, on the other hand, or both respectively.

Agreement: The contract between Destiny NV and the Customer for the supply of one or more Service(s), as defined in article 108 of the Law, and consisting of the Order Confirmation, the Service Order Form lawfully signed by the Customer, the General Terms and Conditions, the Special Terms and Conditions, and, if applicable, the Service Specifications and the Service Level Agreement (SLA).

General Terms and Conditions: the terms and conditions as set out below, which are applicable to any contractual relationship between the Parties.

Special Terms and Conditions: The specific terms and conditions applicable to the delivery by Destiny NV of a specific Service or group of Services and which, depending on the case, supplement or provide for specific derogations to the General Terms and Conditions.

Service Specifications: The document constituting a part of the Agreement that describes the technical specifications and properties of a Service including, if applicable, average speeds and volumes.

Service Level Agreement (SLA): The document constituting a part of the Agreement that describes the quality guarantees, measurement procedures, maintenance services and Customer support services applicable to a specific Service or group of Services.

Effective Date: The date on which the Agreement enters into force and is binding for both Parties, specifically the date as explicitly stated in the Order Confirmation or, if not explicitly stated, the sending date of the Order Confirmation.

Commissioning Date: The date on which the Service(s) is (are) made operational and available for the Customer by Destiny NV and accepted by the Customer in accordance with the provisions of the Agreement.

Business day: every weekday from 9 a.m. to 5 p.m., with the exception of Saturdays, Sundays, public holidays and bank holidays.

Product(s): All goods, products, Terminal Equipment, hardware or software, that are sold, rented, and potentially installed by Destiny NV to or for the Customer within the framework of the Agreement.

Order Confirmation: The explicit, written confirmation by Destiny NV to the Customer in which Destiny NV, cumulatively, accepts the Customer and accepts the Service Order Form.

2. Object

2.1 Area of application

The General Terms and Conditions set out below apply to any contractual relationship between Destiny NV and the Customer and specifically to any quotation, any (Online) order and any delivery of Services/Products from Destiny NV to the Customer. These Terms and Conditions, together with the Order Confirmation, the Service Order Form(s) signed by the Customer, the Special Terms and Conditions, and, if applicable, the Service Specifications and the Service Level Agreement (SLA) collectively make up the Agreement between the Parties.

The Customer accepts and acknowledges that any order, on the basis of a Service Order Form or otherwise and the mere use of the Service(s) implies the receipt, awareness of and acceptance of the existence of and the content of these General Terms and Conditions specifically, and the provisions included in the Agreement, in general.

The Customer will be considered to have been informed by Destiny NV of the General and Special Terms and Conditions, and, if applicable, the Service Specifications and the Service Level Agreement (SLA) prior to establishing the Agreement and acknowledges this.

The Terms and Conditions set out below also apply to any additional order that the Customer places with Destiny NV, regardless of whether explicit reference is made to the General Terms and Conditions.

In the event of contradiction or conflicting interpretations between the stipulations of the various documents of the Agreement, the following hierarchy applies (in descending order):

  • Order Confirmation
  • Service Order Form
  • The Special Terms and Conditions
  • The Service Specifications
  • The Service Level Agreement
  • The General Terms and Conditions

The General Terms and Conditions set out below and the Special Terms and Conditions and, if applicable, the Service Specifications and Service Level Agreement, also apply to any contractual relationship between a company affiliated with Destiny NV over which Destiny NV exercises controlling authority (“Affiliated Company”) and the Customer and specifically to any quotation, any (Online) order and any delivery of Services/Products of the Affiliated Company to the Customer.

Where appropriate, the name “Destiny NV” and the term “Party”, if this refers to Destiny NV, must always be understood as and replaced with “Affiliated Company”; in such cases, the term “Parties” will then refer to the Affiliated Company and the Customer.

2.2 Amendments

Destiny NV expressly reserves the right to unilaterally amend the provisions of the General Terms and Conditions, the Special Terms and Conditions and the Service Specifications. In this respect, Destiny NV will notify the Customer no later than one (1) month before the amendment takes effect, by any means that Destiny NV deems appropriate for this purpose, including specifically, but not limited to, notification by mentioning the amendments on the Customer’s invoice.

If the Customer does not accept the proposed amendments, the Customer is entitled to terminate the Service(s) affected by the amendments, exclusively for the future, without the Parties owing any (severance) compensation other than the Fees payable by the Customer for the Services effectively provided by Destiny NV up until the date of termination by the Customer, which must be done by means of notification by registered letter received by Destiny NV no later than the last day of the month following the entry into force of the amendments.

In the event of adjustment of the contractual terms as a result of a decision, verdict or obligation taken or imposed by a Belgian (e.g., the BIPT) or European regulatory or judicial authority, or by a Belgian or European law or regulation that imposes such adjustments in an enforceable manner, these will not be considered as amendments to the provisions of the Agreement and the Customer will not be entitled to terminate the Agreement without compensation.

If such a decision, ruling, obligation, law or regulation substantially encumbers the contractual obligations of Destiny NV or renders them impossible, Destiny NV is entitled to terminate the relevant Service(s) subject to simple written notification with immediate effect, without being required to pay any severance or termination compensation to the Customer.

2.3 Waiver of the Customer’s (purchase) conditions

The Customer waives its own (purchase) conditions and accepts that these are not applicable to the contractual relationship between Destiny NV and the Customer regardless of whether the (purchase) conditions of the Customer stipulate otherwise and regardless of whether the Customer has in any way and at any time notified Destiny NV of them.

2.4 Establishment of the Agreement

All quotations or proposals from Destiny NV are made at no obligation and are strictly indicative. Destiny NV expressly reserves the right to unilaterally revoke or amend a quotation or proposed Service Order Form. Unless otherwise agreed between the Parties, written proposals or quotations from Destiny NV remain valid until one month following the sending date, at which time they automatically expire.

A Service Order Form signed by the Customer that has not been explicitly accepted by means of an Order Confirmation is not binding for Destiny NV, with the understanding, however, that, except in the case of a written rejection by Destiny NV, a Service Order Form signed by the Customer that has not been confirmed by means of an Order Confirmation after a period of 15 business days following its receipt by Destiny NV will be considered to have been accepted and confirmed by Destiny NV. A Service Order Form signed by the Customer can be lawfully sent to Destiny NV by fax, e-mail or electronically and has full probative value between the Parties.

An Agreement between Destiny NV and the Customer is only established and is only binding for Destiny NV if Destiny NV has accepted the Customer and the signed Service Order Form by means of an Order Confirmation. An Order Confirmation can be lawfully sent to the Customer by fax, e-mail or electronically and has full probative value between the Parties.

A photocopy of the Agreement signed by a Party will be considered equivalent to a signed original copy of the Agreement unless proved otherwise.

If a copy or reproduction is submitted in a different form than the initial and original Agreement, the Parties waive the right to demand the submission of the original Agreement and to deny the probative value of the copy or reproduction and its correspondence to the original, except in the case of fraud or demonstrable unreliability of the reproduction technique.

Unless otherwise agreed in the Service Order Form, each Service or group of Services will always be the object of a separate Service Order Form and separate Agreement. The termination of a Service that is the object of an Agreement does not affect any Services for the same Customer that are the object of a different separate Agreement.

A Service Order Form shall be signed by the Customer, by the authorised natural person or legal entity who is entitled to legally represent and commit the Customer’s company. The natural person or the legal entity who signs a Service Order Form in his own name, or in the capacity of representative or who pays the Fee in execution of it, even on behalf of third Parties, vouches for these third Parties and is committed jointly and indivisibly with them.

In the case that a Customer’s Service Order Form also relates, directly or indirectly, to other companies affiliated with the Customer in accordance with article 11 of the Company Code, these affiliated companies will also be bound by the provisions of the Agreement and the Customer will vouch for the compliance by these affiliated companies with all of its contractual obligations stemming from the Agreement.

Destiny NV can, at its discretion, reject a Service Order Form (signed by the Customer) and refuse to establish an Agreement with the Customer if Destiny NV has doubts about the financial situation or solvency of the Customer’s company or for technical reasons.

Destiny NV can also, at any time and up until the moment of acceptance of the Customer and the Service Order Form, impose additional demands of a financial or technical nature as a condition for establishing an Agreement with the Customer.

2.5 Online Orders

In the case of an online order (Service Order Form) for Service(s) and/or Product(s) via the Destiny NV website (www.destiny.be), properly submitted by the Customer in accordance with the applicable procedures and subject to the condition of the explicit acceptance by the Customer of the applicable General Terms and Conditions, Special Terms and Conditions, and, if applicable, the Service Specifications and the Service Level Agreement (SLA), the Agreement is only established at the moment of the receipt by the Customer of explicit confirmation from Destiny NV of the online Service Order Form on a durable support (by e-mail).

Unless explicitly stated otherwise in the Order Confirmation, the Effective Date is the date on which Destiny NV has sent the confirmation of the order by e-mail to the e-mail address provided by the Customer.

Unless the Customer objects in writing within the 3 Business Days after receipt of the Order Confirmation, the content of the confirmation sent by Destiny NV and the object of the Agreement shall be considered to have been irrevocably accepted by the Customer.

3. Duration and Installation

3.1 Duration

The duration of each Agreement starts on the Commissioning Date and continues for the period determined in the confirmed Service Order Form (Initial period). If there is no duration included in the confirmed Service Order Form, the Agreement has an initial period of 36 months.

After the expiration of the initial period, the Agreement will be automatically and tacitly extended by a period of one (1) year (“Extension”), unless a Party has notified the other Party by registered letter, no later than 3 months prior to the expiration of the Initial Period or the Extension, of its decision not to extend the Agreement.

Exclusively with regard to the SME Customers, the replacement of an Agreement of indefinite duration or of an Agreement of fixed duration that has been established by a new Agreement of fixed duration, will only take place if the SME Customer has been notified in writing of this possibility in advance and if the SME Customer has given its explicit approval in writing. If an SME Customer does not accept the extension of its Agreement of fixed duration, it will automatically be converted to a contract of indefinite duration.

The Customer can terminate the Agreement in writing at any time without having to provide the justification for it.

If a Customer, other than an SME Customer, terminates the Agreement prior to the expiration of the Initial Period or Extension, the Customer will owe Destiny NV a severance payment corresponding to the remaining Fees owed until the maturity date of the Initial Period or Extension of the Agreement. Moreover, the Customer is bound to pay to Destiny NV all reductions or discounts that were granted to the Customer in accordance with the provisions of the Agreement. All amounts for Products, hardware or software supplied by Destiny NV are then immediately due and payable.

In the event that an SME Customer wishes to terminate this Agreement prematurely, it will owe a severance payment equivalent to the Fees until the end of the sixth month following the Commissioning Date from the Agreement. After the end of the first six months following the Commissioning Date, each Party can terminate the Agreement at any time in writing, subject to a period of notice of 1 month.

An additional fee is payable by the SME Customer who has received, for free or at a lower price, a Product of which the acquisition was connected to the signing of a fixed duration Agreement. This fee is equal to the remaining outstanding amount in accordance with the depreciation table that was provided to the SME Customer on the Effective Date and which reflects the residual value of the Product for each month of the duration of the Agreement.

Destiny NV has the right, at all times, with immediate effect, without judicial authorisation, without the requirement of prior notice of default and without payment of damages or other compensation, to dissolve the Agreement at the expense of the Customer in the following cases: (i) if the Customer, despite written notices of default in which a period of at least 5 Business Days is taken into account, remains in default of the (timely and proper) fulfilment of one or more obligations stemming from the Agreement (ii) in case of suspension of payment or (filing for) bankruptcy by the Customer (iii) in the case of liquidation or termination of the activities of the Customer (iv) if (any of) the components of the Customer’s assets have been seized.

In the same cases as referred to above, Destiny NV has the right, at any time, with immediate effect, without judicial authorisation, without the requirement of a prior notice of default and without payment of damages or other compensation, to suspend its obligations, until such time that the reasons for the suspension are remedied. During the suspension of the Agreement, the Customer is required to continue to uphold all obligations and Fees stemming from the Agreement.

In the event of dissolution or suspension of the Agreement by Destiny NV, Destiny NV reserves the right to claim compensation for the costs, interest and damages that Destiny NV incurs as a result of the dissolution/suspension and all claims of Destiny NV against the Customer will be immediately due and payable.

3.2 Delivery period, installation and Commissioning Date

Every delivery period as stated on the confirmed Service Order Form or on the Order Confirmation is strictly indicative. Unless expressly provided in an applicable SLA, exceeding the delivery period, regardless of the reason, does not entitle the Customer to claim any compensation, nor to dissolve the Agreement.

Destiny NV will make all commercially and economically reasonable efforts to respect the established delivery date.

Unless otherwise stipulated, the delivery period will start on the Effective Date and will end on the Commissioning Date.

The delivery period will in any case be suspended as a result of the non-compliance by the Customer or by the third party designated by the Customer with the obligations included in the Agreement, the failure of the Customer Equipment to (promptly) fulfil the parameters established for the Customer-connection network and/or of the Location to fulfil the established parameters and requirements as detailed in the Agreement.

In the event of suspension of the Delivery Period as a result of the aforementioned situations, Destiny NV is authorised to invoice the Fee(s) owed by the Customer in accordance with the provisions of the Agreement, starting from the end of the Delivery Period confirmed in the Service Order Form. The same applies in the case that the Customer-connection network is not (promptly) operational for reasons that are not attributable to Destiny NV.

At the end of the installation/delivery, Destiny NV will test the Service(s). The delivery will be regarded as having been completed and irrefutably accepted by the Customer either (i) by the written confirmation by the Customer (acceptance document) (ii) the use of the Service(s) by the Customer or (iii) in the case that the Customer has not, within a period of 3 business days following notification from Destiny NV of the delivery of the Service(s), objected by registered letter to the acceptance on the grounds of clearly indicated defects, or inability to use the Service(s) in accordance with the Agreement.

The date of acceptance by the Customer as stated above counts as the Commissioning Date.

In the event that the Customer has multiple Locations (Sites), unless otherwise stipulated in the confirmed Service Order Form or Order Confirmation, the Commissioning Date will be the same as the date on which Destiny NV makes the Service(s) at the initial Location operational and available for the Customer. The Initial Period of the Agreement may be extended, where appropriate, by the time that has elapsed between the Commissioning Date of the first Location and the Commissioning Date of the last Location.

With regard to mobile Services, the Commissioning Date is the date on which the first SIM card, as supplied by Destiny NV within the framework of the Agreement, is activated by Destiny NV in the Destiny Mobile-network.

No later than at the time of the signature of the Service Order Form by the Customer, the Customer undertakes to provide Destiny NV in writing with all information necessary for the correct installation of the Service(s) by Destiny NV. This information includes, but is not limited to (technical) data regarding the Location(s), Customer Equipment (e.g. PABX, …), Customer-connection network, … necessary for Destiny NV or a third party designated by Destiny NV to be able to install (configure) the Service(s) and maintain them for the duration of the Agreement.

The responsibility of Destiny NV concerns exclusively the installation and configuration of (i) the Destiny-equipment at the Location(s) (ii) the Destiny-connection network (if applicable) from the Network Connection Point to the Access Point on the Destiny-Backbone, (iii), if applicable, the delivery of (the) Product(s) and (iv) the delivery and activation of the SIM cards.

With regard to mobile Services supplied by Destiny NV, the access to the Service is only possible if the Customer provides, at its own exclusive responsibility, Terminal Equipment (a device for mobile telecommunications) that is compatible with the Service provided by Destiny NV.

Unless otherwise agreed with the Customer in writing, the Customer is solely responsible for the installation and configuration of the Customer Equipment (configuration of its PABX, …), the Customer-connection network, and also for the Location.

Cabling between the Network connection point and the Customer Equipment (router, …) can be provided by Destiny NV if this has been agreed in the Agreement.. The Customer is exclusively responsible for any adjustments that need to be made within his/her LAN (Local Area Network). In the case that the Customer Equipment provides hotlines, the Customer must inform Destiny NV of this before the configuration/installation of the Service.

A Location must be a dust free and non-humid space with a 230V connection within max. 2 meters of the router. The Customer is solely responsible (at its own expense) for changes, modifications, etc. to the Location(s), except if otherwise agreed between the Parties in the Agreement. Construction work, work at heights and/or other physical changes or adaptations to buildings must be done on a project basis with a separate quotation each time (including project terms and conditions).

It is the Customer’s responsibility to promptly obtain all licences, permits, approvals, permissions, etc… that are required for the (access to the) Location(s), the modifications and/or changes in or to the Location(s) and the modifications, changes and configurations of the Customer Equipment and the Customer Equipment itself.

The Customer undertakes to provide Destiny NV or third Parties designated by it with all timely access, and will ensure that third Parties appointed by the Customer provide all timely access to Destiny NV or third Parties designated by it, to the Location and the Customer Equipment.

In the case of a Customer-connection network, it is the Customer’s responsibility to promptly submit the required applications and permits to the relevant third-Party suppliers or operators so that the Customer-connection network can be provided within the shortest possible time. Destiny NV may impose additional technical or other conditions on the Customer-connection network for the purposes of the Service(s) and the quality thereof.

In the case of a Destiny-connection network, Destiny NV will provide the connection network as specified in the Agreement from the Network connection point to the Access Point with the Destiny NV Backbone. For a Destiny-connection network, in the case of DSL technology, Destiny NV will use an existing free copper pair. If not enough copper pairs are present/can be made available at this Location, a one-time cost of 600 EUR will be charged to this Location to bring new copper pairs into the building.

For a Destiny-connection network on the basis of fibre optic technology, the Fees in the Agreement will apply for all works in the public domain (i.e. up to the building line of the Location). All costs in the private domain must be borne by the Customer.

If delivery of the Service(s) is not possible for reasons that are not demonstrably attributable to Destiny NV, such as, but not limited to, a defect in the Customer Equipment, the Customer-connection network and/or the Location, the Customer must, at its sole expense and responsibility, take all necessary measures to ensure that the Service(s) can still be delivered within as short a time as possible.

If, for technical reasons, the delivery of the Service(s) on the basis of a Destiny-connection network is not possible, the Customer and Destiny NV can each individually terminate the agreement with immediate effect without compensation and without liability in this respect.

Prior to the installation of the Service(s), the Customer will at its own costs and responsibility provide a complete backup of all data

4. Obligations of the Parties

4.1 Destiny NV

In exchange for the prompt and accurate payment by the Customer of the Fee and costs as stipulated in the Agreement and subject to the condition of the Customer’s correct compliance with all of its contractual obligations stemming from the Agreement, Destiny NV undertakes to deliver the Service(s) to the Customer in accordance with the provisions of the Agreement.

The Service(s) are provided by Destiny NV with the expertise and accuracy that can reasonably be expected of an operator and provider of an electronic communications service and in accordance with the generally accepted standards in the sector. Notwithstanding any contradictory provisions in the Agreement, the contractual obligations on the part of Destiny NV are strictly commitments of means.

Destiny NV is entitled to unilaterally modify the technical aspects of the Service(s) in order to take into account technical developments, changes in the regulatory framework and/or as a result of obligations or recommendations imposed or made by a Belgian (BIPT, …) or a European regulatory or judicial authority, or as the result of Belgian or European laws or regulations. If such changes directly or indirectly entail modification of the Customer Equipment, the Terminal Equipment, the Customer-connection network or the Location, the Customer must, at its own costs and responsibility, comply with such amended conditions.

The responsibility of Destiny NV and the obligations of Destiny NV stemming from the Agreement are always limited to the Destiny-network and the Products or Service(s) delivered by it with the exclusion of the elements that are not managed by Destiny NV or that are delivered via the Destiny-network.

Destiny NV is in no way responsible for services and products delivered by Parties other than Destiny NV (including services and products provided by the Customer itself).

The Service(s) may, as a result of maintenance, upgrades and adjustments in light of technical developments, be temporarily interrupted, inaccessible or provided with lower quality. As necessary, Destiny NV will take all commercially-economically reasonable measures to resolve the interaction, inaccessibility or loss of quality or to offer a workaround that is acceptable to the Customer. Destiny NV must always strive to inform the Customer in advance of the work in question.

If there are unplanned incidents concerning the Service(s), Destiny NV will make every reasonable effort to resolve these incidents as soon as possible and, if applicable, within the framework of the SLA established between the Parties.

For adjustments, changes or interventions for reasons that are fully or partially attributable to the Customer, the Customer Equipment or the Customer-connection network, Destiny NV is entitled to claim the corresponding costs from the Customer.

Destiny NV is permitted, without any liability on its part, to take all measures (including the suspension of the Service(s), temporary or definitive termination of the access to the Service(s)) if such measures, according to the discretionary judgement of Destiny NV, are necessary for safeguarding the integrity and/or normal functioning of the Services, of the Destiny-network or of its infrastructure in general. The same applies for measures taken on the basis of or as a result of obligations or recommendations imposed or issued by a Belgian, European or judicial authority.

Unless explicitly agreed otherwise in the Agreement, Destiny NV is not considered to have knowledge of or to have taken into account the specific application for which the Customer will use a Product and Destiny NV cannot therefore be held liable in this respect.

4.2 The Customer

The Customer undertakes to comply with all obligations stemming from the Agreement in good faith and will ensure, and vouches for, the compliance of all users of the Service(s) with these obligations as well.

The Customer will provide all information, cooperation and will grant access to Destiny NV or to third Parties designated by Destiny NV that can reasonably be considered necessary for Destiny NV for the delivery of the Service(s) in accordance with the provisions of the Agreement.

It is the responsibility of the Customer to apply for all permits, licenses and authorisations, at its own expense, that are required for upholding its obligations stemming from the Agreement as well as regarding the Customer Equipment and its maintenance for the complete duration of the Agreement

The Customer undertakes to immediately notify Destiny NV in writing of any change regarding the information that it provided to Destiny NV when entering into the Agreement as well as any information or any change that influences or could influence the Service(s) or the quality thereof.

The Customer will refrain, for the duration of the Agreement, from making changes to the Customer Equipment, Location or Product(s) or in general, to any infrastructure or software that could have an influence on the delivery of the Service(s) by Destiny NV.

The Customer is responsible for monitoring the installation including the configuration necessary for the Service(s) and will not allow third Parties to access or modify this installation/configuration.

The Customer will use the Service(s) exclusively (i) with due diligence, (ii) on its own behalf and for its own business purposes, (iii) in a normal and reasonable way, (iv) in accordance with all applicable laws and regulations, and, (iv) in a way that is not contrary to public order or decency.

Unless otherwise agreed in writing between Destiny NV and the Customer, the Customer is not permitted to commercialise the Service(s) in any way whatsoever itself or via a third party, in part or in full, for a fee or to rent, lend, sell, transfer or provide it in any form whatsoever to third Parties.

The Customer undertakes to comply, for the duration of the Agreement, with the specifications, technical requirements and other conditions, whether technical or otherwise, as included in the confirmed Service Order Form or the Agreement, as amended, as applicable.

5. Products, software and Terminal Equipment

5.1 Products

When Destiny NV, within the framework of the Agreement, sells a Product to the Customer, the ownership of this Product will only be transferred to the Customer after the Customer has paid the full amount of all that is owed in exchange for the Product delivered or to be delivered by Destiny NV, including the payment of the agreed price, costs, interest and possible compensation.

Nevertheless, the risks for damage, loss or destruction of the Product sold will be transferred by Destiny NV to the Customer from the moment that the Product is delivered to the Location or to any other place agreed in the Agreement.

Up until the moment that, subject to full payment, the ownership of the Product is effectively transferred to the Customer (i) the Customer is forbidden to use the Product as a means of payment, or to pledge or encumber it with any other security right, (ii) the Customer must place a clearly legible sign on the Product indicating that the Product is owned by Destiny NV.

The Customer undertakes to immediately notify Destiny NV by registered letter of any (attempted) seizure of the Product by a third party.

The Customer undertakes to explicitly oppose, by all legal means, any attempt at appropriation or seizure imposed on a Product, the ownership of which has not yet been transferred by Destiny NV.

The Customer has a duty of care regarding the Product that is subject to retention of title and must maintain the product in perfect condition in accordance with the highest standards and safety requirements that are customary in the sector. Until the time of the effective transfer of ownership, the Customer must insure the Product against all normal risks (such as, but not limited to, fire, water damage, theft) and must present the relevant insurance policy to Destiny NV upon first request.

If the Product is installed in a Location or place that is not owned by the Customer, the Customer undertakes to take all measures and make all contractually enforceable agreements with the owner of the Location or place to safeguard the rights of Destiny NV as stipulated in the underlying Agreement.

Under no circumstances shall the Customer move the product subject to the retention of title or have it moved, without the explicit prior written approval of Destiny NV.

Even if established in writing, delivery periods regarding a Product are only indicative and are not binding for Destiny NV.

Unless explicitly agreed otherwise in the Agreement, Destiny NV is not considered to have knowledge of or to have taken into account the specific application for which the Customer will use a Product and Destiny NV cannot therefore be held liable in this respect.

The Customer is solely responsible and liable for its specific applications of a Product and the use it makes of the Product. In particular, and without prejudice to the general information requirement on the part of Destiny NV, the Customer is solely responsible and liable for the selection and configuration of the Product and the compatibility of the Product in the (IT) environment of the Customer or the third party designated by the Customer.

The Customer will immediately acknowledge receipt of the Product upon delivery and will investigate whether the quality of the Product corresponds to what was agreed. Any visible defects in the Product must be reported to Destiny NV in writing within maximum 2 business days after delivery. Complaints concerning visual defects will only be valid and will only be investigated subject to the condition that the Product was not yet put into use by the Customer. Filing a complaint does not suspend the Customer’s payment obligations and does not grant the right to dissolve the Agreement in part or in full.

The liability of Destiny NV for any hidden defects in a Product is limited to defects that become apparent within the period according to the manufacturer’s terms and conditions and, in the absence of these, within a period of 6 months after delivery. Any hidden defects must in any case be reported by the Customer, under penalty of forfeiture of all claims, immediately and at the latest within 10 Business Days after discovery of the defect, by registered letter.

The Customer accepts and acknowledges that Destiny NV can invoke against the Customer all exceptions, exemptions and guarantee limitations that the manufacturer of the Product can invoke against Destiny NV.

Any indemnification for defects shall be rendered invalid, regardless of the period, if the Product has been modified in any way or if a third party or the Customer has made any modifications or repairs to the Product, subject to the express prior written approval of Destiny NV.

All stipulations regarding a Product that is subject to retention of title, also apply for a Product that is leased to the Customer by Destiny NV. Furthermore, the Customer may not sublet a leased Product or make it available, in general, to third Parties.

The Customer undertakes, in the event of termination of the Agreement for any reason whatsoever, to return to Destiny NV, any Product that has been leased or is at that time still subject to retention of title, in good condition and at its own expense, prior to the date indicated by Destiny NV. In the event that the Customer fails to return a Product in good condition prior to the date indicated by Destiny NV, Destiny NV will invoice the new value of the Product to the Customer who undertakes to pay this amount within 10 Business Days.

Any liability for loss or damage to a Product subject to retention of title or a Product that is leased to the Customer by Destiny NV lies solely with the Customer.

5.2 Software and Intellectual property rights

If, as part of the Agreement, Destiny NV software is delivered or installed with the Customer, the Customer receives a non-exclusive right to use this software for the period of the Agreement and exclusively in accordance with the (licensing) conditions of the owner or license holder which said Customer acknowledges and accepts as having received and approved, as a result of the use of the software.

In the event of failure to observe the applicable (license) conditions regarding the software, Destiny NV can force the owner or licensor to cease any further use of the software by the Customer or suspend all further use. The Customer accepts and acknowledges that Destiny NV can claim all the exceptions, exemptions and guarantee limitations, that the manufacturer/owners/licensor of the software can invoke against Destiny NV, equally against the Customer.

Unless otherwise agreed in writing between Destiny NV and the Customer, the Customer is not permitted to further licence the software, to grant third Parties access to the software or to use the software for purposes other than in the context of the Agreement.

All Intellectual property rights regarding and/or related to the Service(s), the SIM card, the Product(s), software, the Destiny-network and the Destiny-equipment belong exclusively to Destiny NV and/or suppliers of Destiny NV.

All Intellectual property rights regarding services provided within the framework of the Agreement shall accrue exclusively to Destiny NV and/or suppliers of Destiny NV to the exclusion of the Customer.

Unless otherwise agreed in writing in the Agreement, the Agreement does not entail transfer of (intellectual) property rights.

The Customer shall refrain from any actions that could affect the property rights of Destiny NV or of the suppliers to Destiny NV and shall not remove any (distinguishing) symbols, signs or images applied by Destiny NV or suppliers of Destiny NV to the Product or software.

5.3 Terminal Equipment

If agreed in the Agreement, Destiny NV will supply the agreed Terminal Equipment and install it for the Customer. The Customer undertakes, and will ensure that third Parties also undertake, to only connect Terminal Equipment that is compliant with all applicable laws and regulations and that fulfils all specifications defined by Destiny NV, which may occasionally change.

At the first request of Destiny NV, the Customer will disconnect any Terminal Equipment, at its own expense and responsibility, if this equipment causes or is likely to cause a technical malfunction on the Destiny-network.

The Customer will indemnify and compensate Destiny NV for all costs and damages incurred by Destiny NV or claimed by a third party from Destiny NV as a direct or indirect result of the connection to the Destiny-network of Terminal Equipment that is non-compliant with the laws and regulations or that does not correspond to or fulfil the specifications established by Destiny NV.

Terminal Equipment supplied and, if applicable, installed by Destiny NV or a third party designated by Destiny NV are Products that are delivered and installed in accordance with the provisions of the Agreement and specifically article 5 or the General Terms and Conditions.

Destiny NV has the right to suspend or terminate the Agreement without judicial authorisation and without the payment of damages or other compensation at the Customer’s expense if the Customer refuses to disconnect, at the first request from Destiny NV, Terminal Equipment that is not compliant with all applicable laws and regulations, that does not fulfil all the specifications as established by Destiny NV, that causes disruption or which damages or threatens to damage the Destiny-network or facilities or in general are or could constitute a threat to the integrity of the network.

The Customer authorises Destiny NV to obtain remote access to the Customer’s Terminal Equipment for the purposes of maintenance or configuration

6. Rates & payment

6.1 Fees

The Fees and costs payable by the Customer in exchange for the Service(s) are listed in the Agreement and may consist of a connectivity fee, subscription fee, traffic related fees, …. All Fees and costs are shown in Euros and exclusive of taxes

All taxes, duties and/or levies, of any kind whatsoever, that are related to the Service(s) or Products, including new taxes, duties and levies that may be introduced subsequent to the Effective Date, must be borne by the Customer in full.

The traffic related fees are fees for the Customer’s connection depending on the destination and duration. These costs are calculated on the basis of the rate plan agreed between the Customer and Destiny NV, as attached to the Agreement.

The rate plan applicable for the Customer forms an integral part of the Agreement.

In the event of a dispute regarding the Traffic-related costs, only the data included in the systems of Destiny NV have probative value.

Where applicable, the Customer’s invoice will also include an item “third-Party services charge”. The costs listed under this item are costs for services of third Parties that are collected by Destiny NV on behalf of the third Parties. Destiny NV is not responsible or liable for the services provided by these third Parties and any complaints concerning them must be addressed exclusively to the service providers in question.

Any costs or one-time Fees may be invoiced in the shorter term and, unless agreed otherwise in the confirmed Service Order Form, will be invoiced after delivery of the service or Product to which these costs/fees are related.

6.2 Price adjustment

All Fees and costs can be increased by Destiny NV at any time following the Effective Date, even if this is a result of foreseeable circumstances, in the event of (i) a change in one or more cost factors (including, but not limited to the (purchase) prices and wage costs) and/or (ii) in the event of increase of the (government) levies.

The new price structure will be announced to the Customer at least (1) one month before it takes effect. If the Customer does not accept the changed price structure, the Customer is entitled to terminate the Agreement by registered letter.

If Destiny NV has not received this notification at the latest on the last day of the month following the month in which the price changes take effect, the Customer will be considered as having irrefutably accepted the new price structure.

The Customer does not have the option to terminate the Agreement without compensation, in the case of adjustments to the Fee(s) as a result of a decision, ruling or obligation taken or imposed by a Belgian (e.g. BIPT) or European regulatory or judicial authority or a Belgian or European law or regulation that imposes these adjustments in an enforceable manner. The same applies if the Fees are adjusted as a result of changes in the prices of national, European or International operators.

6.3 Invoicing

The Fees and costs payable by the Customer in accordance with the provisions of the Agreement will be invoiced to the Customer’s address as stated on the Service Order Form.

All invoices are provided in electronic format (.pdf or otherwise) and sent by e-mail to the e-mail address stated in the Service Order Form. The Parties declare their explicit agreement with this method of invoicing in advance. On the condition that this is explicitly agreed in the Service Order Form, the Customer may opt to receive its invoices in a paper version. As necessary, Destiny NV may charge an additional fee for sending paper invoices.

The Customer must immediately notify Destiny NV of any changes in the invoicing address or e-mail address provided for invoicing purposes.

If a copy or reproduction in any other form than the original, initial invoice is presented, the Parties waive the right to demand the presentation of the original invoice and to deny the probative value of the copy or reproduction and its correspondence to the original, subject to evidence of fraud or demonstrable unreliability of the reproduction technique.

The invoicing will begin on the Commissioning Date or at the time as stipulated in the confirmed Service Order Form and will take place, unless otherwise stipulated in the confirmed Service Order Form, on a monthly basis. In the event of delivery for multiple Locations, the invoicing will begin starting from the Commissioning Date of the first Location, and prorated according to the effectively delivered Locations.

Fees for Services delivered during incomplete months will be invoiced on a pro rata basis according to the number of days in the incomplete month.

Invoices from Destiny NV for Fees and costs stemming from the Agreement are payable at the latest on the maturity date of the invoice.

Unless expressly provided otherwise in the confirmed Service Order Form, invoices from Destiny NV are payable no later than (15) fifteen days after the invoice date. The Customer undertakes to pay the invoices of Destiny NV within a period of (15) fifteen days after the invoice date.

In the event of a dispute, the Customer must inform Destiny NV within a period of ten (10) calendar days after the invoice date by registered letter, of the reasons for the dispute, as well as the amount being disputed. Uncontested amounts are payable by the invoice maturity date.

In the event of failure to pay the uncontested amounts by the maturity date, all other receivables not yet due are claimable from the Customer, lawfully and without prior notice of default.

In that case, Destiny NV reserves the right, subject to written notice of default in advance including a remedy period of 5 Business Days, to suspend the execution of its obligations with immediate effect until such time that the Customer has fulfilled all of its contractual obligations. As necessary, payments from the Customer to Destiny NV will be charged first on the basis of the costs owed by the Customer, and then on the interest, and only as a last resort on the principal sum due.

Set-off of the debt by the Customer is explicitly excluded.

In the event of full or partial non-payment of an uncontested invoice or uncontested amount by the maturity date, the Customer shall owe, lawfully and without prior notice of default, late payment interest in the amount of 1% per commenced month on the unpaid invoice amount. The Customer shall also, lawfully and without prior notice of default, owe a lump sum amount in compensation of the extrajudicial collection costs in the amount of 10% of the outstanding invoice amount, with a minimum of € 40, without prejudice to the right of Destiny NV to claim a higher fee subject to proof of higher actual losses and without prejudice to the right of Destiny NV to claim compensation for the judicial collection costs caused by the non-payment.

There will be no suspension of the service in the case that and as long as the Ombudsman service for telecommunications has not completed a review of a dispute submitted by the Customer, subject, however, to a maximum term of 4 months.

Any interruption of the service as a result of non-payment will be limited to the Service in question insofar as technically possible.

As appropriate and except in the case of fraud or in the case of consistent late payment of invoices (specifically, when within a period of 12 months, the Customer has already been relegated to the minimum service plan), Destiny NV can decide to limit the Service to a minimum service. With regard to the Telephony Service, this means that the Customer will only have the possibility of being called (with the exception of calls for which the costs are paid by the call recipient) and the possibility of calling the emergency services.

Destiny NV has the right, regardless of whether there has been a prior suspension of the Service or not, to dissolve the Agreement without judicial authorisation and without the payment of damages or other compensation, at the expense of the Customer if, following a period of ten (10) Business Days after receiving a formal notice of default, the Customer continues to fail to meet its payment obligations in accordance with the provisions of the Agreement.

If at any time doubts arise as to the creditworthiness of the Customer due to legal actions against the Customer, in the event of non-payment or late payment of one or more invoices and/or any other demonstrable event, Destiny NV expressly reserves the right to make the further delivery of (the) Service(s) dependent on payment in advance or to demand other guarantees from the Customer. If the Customer refuses to comply with the request of Destiny NV, Destiny NV reserves the right to dissolve the Agreement immediately, unilaterally and lawfully without owing any compensation to the Customer.

In the event of dissolution or suspension of the Agreement by Destiny NV, Destiny NV reserves the right to claim compensation for the costs, interest and damages incurred by Destiny NV as a result of the dissolution/suspension and all claims of Destiny NV against the Customer will be immediately due and payable.

7. Liability

7.1 Liability of Destiny NV

Destiny NV will use all commercially reasonable means available to it to provide the Service(s) to the Customer in accordance with the provisions of the Agreement.

Destiny NV makes no commitment (and the stipulations of the Agreement can under no circumstances be interpreted in this way) to providing to the Customer an explicit or implicit guarantee or security that the Service(s) will fulfil the expectations or needs of the Customer or that the Service(s) will work without error or interruption.

Destiny NV is only responsible for the functioning of the Service(s) in accordance with the stipulations and specifications set out in the Agreement insofar as and to the extent that all applicable (legal) standards and technical network interface specifications as defined by Destiny NV are met.

Except in the case of fraud or intentional error, the total maximum and cumulative liability of Destiny NV and its appointees will in any case and at all times be restricted to the value of the relevant Agreement for a period of 1 year.

Under no circumstances is Destiny NV liable for or required to compensate intangible, indirect or consequential damages, including but not limited to loss of profits, loss of turnover, production limitations, loss of data, commercial inactivity, administrative or personnel costs, an increase in general costs, loss of clientele or claims from third Parties.

The non-contractual (extracontractual) liability of Destiny NV towards the Customer is at all times restricted to the cumulative maximum amount that is covered by the liability insurance taken out by Destiny NV. The Customer may obtain from Destiny NV, by simple written request, a copy of the relevant insurance policies taken out by Destiny NV.

All liability for damage on the part of Destiny NV and its appointees is expressly excluded if the damage is a consequence, directly or indirectly, in whole or in part, of the non-compliance of the Customer or the Customer’s appointed third Parties with its obligations stemming from the Agreement.

Insofar as, in the execution of its commitments, Destiny NV is dependent on, or calls upon the cooperation, services and/or deliveries of third Parties (with the exception of the (sub) contractors of Destiny NV), it can in no way be held liable for any damage resulting from their error, including their serious or intentional error or negligence.

If Destiny NV has supplied defective goods or defective Product(s), the Customer can only claim repair or replacement of the goods or Product delivered, without the Customer being entitled to claim any form of (damage) compensation.

Any claim by the Customer for compensation from Destiny NV will automatically and lawfully lapse if it is not communicated to Destiny NV by registered letter within a period of 10 Business Days from the moment that the Customer first became aware of the facts on which the claim is based or could have reasonably been expected to have become aware of them.

In the event of a malfunction or interruption of the Service(s) for the Customer, Destiny NV undertakes to take the measures as stipulated in the applicable SLA within the required time frames. Except in the case of fraud or intentional error, if Destiny NV does not respect the time frames indicated in the applicable SLA for reasons attributable to it, according to the provisions of the SLA, compensation will be owed to the Customer as determined in the applicable SLA, with the exclusion of any other (damage) compensation from Destiny NV.

In the absence of a separate SLA applicable to (a) specific Service(s) from Destiny NV, in the event of malfunction or interruption of the Service(s) of the Customer, Destiny NV is committed only to using all reasonable means to remedy the malfunction or interruption of the Service(s) to the best of its abilities and within as short a time as possible, or to offering a workaround to the Customer without the Customer being entitled to claim any (damage) compensation from Destiny NV.

Under no circumstances can the malfunction or interruption of a Service or package of Services form grounds for the accumulation by the Customer of compensation pursuant to different SLA’s. The maximum cumulative amount of compensation the Customer is entitled to claim as a result of the applicable SLA’s is limited to the maximum amount stated in the relevant SLA.

Destiny NV is not liable for the content sent or received by means of a Service, nor for the use of the Service by the Customer or third Parties.

The Customer confirms that Destiny NV is only responsible for the Services that it offers with the exclusion of services provided by third Parties or the Customer.

Destiny NV is not responsible for the proper functioning of the Service(s) delivered to the Customer if the poor functioning or non-functioning of the Service is a consequence, directly or indirectly, of actions taken or not taken by third Parties or by the Customer itself.

Destiny NV is not responsible for the (non)functioning of a Service supplied to the Customer if it is a consequence, directly or indirectly, of actions taken or not taken by third Parties or by the Customer itself in violation of the stipulations of the Agreement or in violation of applicable laws or the failure by the Customer to fulfil or to promptly fulfil its contractual obligations stemming from the Agreement.

Destiny NV accepts no liability (i) for loss or corruption of data or information from the Customer or from third Parties at the Customer’s location, including during the installation and for the duration of the Agreement (ii) for the accidental removal or failure to receive content or information via the Service(s) (iii) for the failure to (periodically) save content or information (iv) for the content sent or received via the Service(s) or, in general, the user of the Service by the Customer or third Parties via the Customer and (v) for the hosting of and access to the website of the Customer.

The Customer is solely liable for all damage caused by the Customer or by the users that are granted access to the Service(s) by the Customer as a result of using the Service(s). The Customer shall fully indemnify and compensate Destiny NV in this respect.

7.2 Use of service(s) by the Customer

Unless explicitly agreed otherwise in the Agreement, the security of the Customer Equipment and the Customer’s IT-environment is the exclusive responsibility of the Customer.

The Customer undertakes to make backups of its data at regular intervals or to have them made by a third party.

Misuse of the access to the Service(s), including by third Parties, is exclusively the responsibility of the Customer. The Customer must adequately secure the access to the Service(s) in this respect.

The Customer undertakes not to use the Service(s) or in general to perform or allow any actions that could damage or disrupt the Destiny-network, the traffic or the services of Destiny NV or that could in any way compromise the network integrity or network security of the Destiny-network.

The Customer shall refrain from any unlawful, incorrect or unauthorised use of the Destiny-network and the Service(s).

The Customer is exclusively responsible and liable for the use of the Service(s) and the content (data) of the Service(s), to the exclusion of Destiny NV.

Any use of the Service(s) or the Destiny-network by the Customer for unlawful or immoral purposes, in the broadest sense, is strictly prohibited and may not be accepted by the Customer.

It is the responsibility of the Customer to report any unlawful or immoral content to the supervisory authority and to Destiny NV.

The Customer shall grant Destiny NV or any third party appointed by Destiny NV access to all information and data that is necessary to enable Destiny NV to comply with the laws and regulations and for the fulfilment of all its contractual obligations stemming from the Agreement.

Any liability on the part of Destiny NV and its appointees for the content of the data or traffic that is stored, transmitted or received by the Customer, by third Parties appointed by the Customer or by third Parties to whom the Customer has granted access is expressly excluded.

The Customer shall fully indemnify and safeguard Destiny NV for and against all demands, claims, etc … of third Parties against Destiny NV and/or its appointees on the basis of or as a result of, in general, the content of and the access to the Services and specifically the use of or the access to the Service(s) in violation of the provisions of the Agreement.

If the Customer uses the Service(s) to collect and process personal data, this takes place under the exclusive responsibility of the Customer and the Customer undertakes to respect the application of and compliance with the privacy laws.

The Customer shall fully indemnify and safeguard Destiny NV for and against all demands, claims, etc … of third Parties against Destiny NV and/or its appointees on the basis of or as a result of, the failure of the Customer, it appointees or third Parties appointed by Destiny NV, to respect the privacy laws.

8. Processing personal data and confidentiality

8.1 Personal data

The Parties shall respect the current laws concerning the protection of personal data at all times, such as, specifically, but not limited to, the EU Regulation (2016/679) (hereinafter referred to as the “GDPR”), the Directive 2002/58/EG, as amended (hereinafter the “e-Privacy Directive”) and all laws and decrees in implementation of the aforementioned Regulation and Directive, including, but not limited to, the Law (hereinafter referred to as the “Privacy Legislation”).

The policy applied by Destiny NV to the processing of personal data as defined in the Privacy Legislation (hereinafter referred to, respectively, as “Processing” and “Personal Data”), is further stipulated in the Destiny privacy policy, which is available on www.destiny.be (hereinafter “Destiny Privacy Policy”).

8.1.1 Destiny NV as Data Controller

Unless expressly agreed otherwise in writing in the Service Order Form, only Destiny NV can be regarded as the data controller as defined in article 4, 7) GDPR (hereinafter “Data Controller”).

In the capacity of Data Controller, Destiny NV shall process the ordinary Personal Data (with the exclusion of special Personal Data) of the Customer, such as names, addresses, e-mail addresses, IP addresses, telephone numbers, usage data, data about the communication traffic, invoicing and payment data, technical data, traffic data and localisation data.

Destiny NV will process the Personal Data mentioned above on the basis of the following legal grounds 1) necessity for the execution of the Agreement, 2) necessity for compliance with legal obligations to which Destiny NV is subject and 3) necessity for defending the justified interests of Destiny NV.

Destiny NV will process the relevant Personal Data of the Customer for the following processing purposes:

  • Execution of the Agreement;
  • Compliance with the statutory obligations that apply to Destiny NV;
  • General Customer management and invoicing;
  • The operational-technical management by Destiny NV of its network and the Services and Products based on it.

Except where Destiny NV is legally obligated and except where necessary for the execution of the Agreement, Destiny NV will not share the Personal Data with third Parties.

Destiny NV undertakes to always Process the Personal Data in question in a proper, transparent and lawful manner, as defined in the Destiny Privacy Policy and elsewhere. Furthermore, Personal Data will only be Processed insofar as relevant and this will be limited to only what is strictly necessary for the intended purposes.

In the context of the accuracy of the Personal Data, the Customer undertakes to inform Destiny NV without delay of any changes in the Personal Data for which Destiny NV is the Data Controller.

Destiny NV will take appropriate technical and organisational measures with regard to the relevant Personal Data to ensure appropriate security so that this Personal Data cannot form the object of unauthorised or unlawful Processing.

The identity and contact details of Destiny NV in its capacity as Data Controller are included in the Destiny Privacy Policy.

Destiny NV will retain the Customer’s Personal Data for as long as necessary to enable the proper execution of the Agreement and to meet all relevant statutory obligations.

The Customer is entitled at all times 1) to request that Destiny NV allow the Customer to review and rectify the Personal Data relating to the Customer or to request that it be deleted, 2) to request the limitation of the Processing related to the Customer, 3) to object to the Processing and 4) to data portability.

The Customer has the right to file a complaint with the supervisory (privacy) authority.

With regard to the data subject to which the Personal Data is related, the Customer undertakes to fulfil, on behalf of Destiny NV, the obligations of Destiny NV as Data Controller regarding the data subjects. In that respect, the Customer must ensure that the data subjects are completely and promptly informed about the Processing of the Personal Data by Destiny NV in accordance with the provisions of the Agreement and the Destiny Privacy Policy, and must explicitly inform these data subjects of their rights on the basis of the Privacy Legislation (specifically the rights as stipulated in sections 2 and 3 of the GDPR).

8.1.2 Destiny NV as Processor

If Destiny NV, in the course of implementing the delivery of Service(s) or Product(s), Processes Personal Data for the Customer or for a third party designated by the Customer, then Destiny NV acts in the capacity of Processor as defined in article 4,8) GDPR (“Processor”) and the Customer acts in the capacity of Data Controller or, in turn, as Processor for a third-Party Data Controller.

The Customer is committed to ensuring that, in its capacity as Data Controller, it has correctly fulfilled all statutory obligations applicable to it in accordance with the Privacy Legislation for a Data Controller, and will continue to do so for the duration of the Agreement. As necessary, the Customer will vouch for the Data Controller for whom it processes the Personal Data in order to have it subsequently sub-processed by Destiny NV within the framework of the Agreement.

With regard to the Processing within the framework of the Agreement, Destiny NV will always act in accordance with the Privacy Legislation and will Process the Personal Data on behalf of and only for the benefit of the Customer in accordance with the Customer’s instructions and under the Customer’s responsibility, unless otherwise required by law.

Destiny NV has no control over the purpose and the resources for the Processing. Destiny NV has no independent control over the Personal Data that is processed on behalf of the Customer.

The nature and purpose of the Processing of the Personal Data exclusively concern the execution of the Agreement and the compliance on the part of Destiny NV with applicable statutory obligations.

The nature (type) of Personal Data that is processed by Destiny NV concerns ordinary Personal Data such as identification information, contact details, invoicing data, usage data, or as stipulated in the Service Order Form(s). The same applies with regard to the categories of data subjects (such as, but not limited to, employees, consumers, patients, …). If the Personal Data concerns special Personal Data (e.g. genetic data, data on health or special categories of Personal Data) the Customer must inform Destiny NV of this in advance in writing.

Individuals who are employed by or work on behalf of Destiny NV, as well as Destiny NV itself, are required to maintain confidentiality regarding the Personal Data to which they may have access, in accordance with the Privacy Legislation.

The Customer will provide Destiny NV with all necessary information and will provide Destiny NV with all cooperation in order to enable proper compliance with the Privacy Legislation, or with other relevant laws and regulations. The information provided will be handled confidentially.

If Destiny NV is required to provide Personal Data on the grounds of a statutory obligation, Destiny NV must inform the Customer of this immediately and if possible prior to providing the data, unless this is not permitted on legal or judicial grounds.

In the case of a reasonable request from the Customer submitted in writing, Destiny NV shall return or destroy Personal Data within a reasonable period of time.

Within a reasonable period of time after termination of the Agreement, according to the Customer’s preference, Destiny NV shall return or destroy the Personal Data except if Destiny NV, as a result of legislation to which it is subject, is required to retain the relevant Personal Data for a longer period of time.

Destiny NV will ensure that, according to the nature of the Service(s) and Product(s) in the context of which the Personal Data is processed, appropriate technical and organisational measures are taken to safeguard the Personal Data against loss or any form of unlawful processing. Destiny NV undertakes to maintain an appropriate level of security, taking into account the state-of-the-art and the implementation costs, in light of the risks that the Processing and the nature of the Personal Data to be protected entail.

The Parties may make further agreements regarding the security measures agreed in the Service Order Form(s) regarding the relevant Service(s) or Product(s).

Destiny NV will handle the Personal Data with strict confidentiality and will ensure that persons acting under its authority who have access to the Personal Data are bindingly required to ensure confidentiality and that they only Process the relevant Personal Data according to the instructions of the Customer or for fulfilment of other statutory obligations.

In the event of a data breach (which is understood as meaning: an infringement in connection with the Personal Data as referred to in the Privacy Legislation), Destiny NV will notify the Customer within a reasonable period after the breach was brought to its attention. The Customer is under all circumstances responsible for reporting data breaches to the supervisory authorities and/or the data subjects.

The Customer will indemnify Destiny NV against all (legal) claims of third Parties concerning the Personal Data and the execution of this Agreement.

A fine imposed on the Customer by the supervisory authorities in connection with the Personal Data and the execution of this Agreement cannot be recovered from Destiny NV, unless there has been intent or serious negligence on the part of Destiny NV.

In order to enable the Customer, as Data Controller, to supervise the fulfilment of this Agreement, the Customer is entitled, (except if an earlier audit is necessary for valid reasons, or if required by a data protection authority), to request, a maximum of once per year, that Destiny NV provide a report of the measures taken by Destiny NV concerning the technical and organisational security measures. Destiny NV will provide reasonable cooperation and the necessary information for this.

Destiny NV will cooperate in the implementation of the technical and organisational measures, the Data Protection Impact Assessments (DPIA’s) to be carried out and the follow-up of data breaches. Destiny NV is entitled to charge reasonable costs for this cooperation to the Customer.

By entering into the Agreement with Destiny NV, the Customer grants the general written authorisation for the use of sub-processors (third Parties) for the Processing of the Personal Data, but only insofar as and to the extent that this is necessary for Destiny NV for execution of the Agreement and the delivery of the Service(s) and Product(s) to the Customer. However, the aforementioned does not affect the obligations of Destiny NV stemming from underlying Agreement.

The Customer may oppose the sharing of the Personal Data with an individual sub-processor. If it turns out that Destiny NV is unable to deliver the Service(s) or Product(s) by calling upon the services of the sub-processor in question, Destiny NV is entitled to terminate the Agreement, or a part of it, with immediate effect and without any liability in this regard.

The Customer grants Destiny NV explicit permission to Process the Personal Data outside of the European Economic Area (EEA) if the destination country can offer an adequate degree of protection. Where appropriate, the Parties may make specific or deviating agreements in this regard in the Service Order Form(s).

8.2 Confidentiality

The Customer undertakes not to disclose, distribute, and/or use any confidential information belonging to or relating to Destiny NV, its suppliers, agents or other clients to third Parties other than within the framework of the execution of the Agreement. This obligation applies both for the duration of the Agreement and for a period of five (5) years following its termination.

Confidential information may only be disclosed under this Agreement to employees and/or subcontractors of the Customer who can be reasonably expected to require access to this information for the purposes of the execution of the Agreement.

Confidential information from Destiny NV remains the property of Destiny NV. Destiny NV can under no circumstances be held liable for the use that the Customer makes of the confidential information.

In any case, the following information will be considered to be confidential information: data, trade secrets, knowhow, Customer and supplier data, financial information, results of transactions, business plans and outlooks, strategies and estimates, quotations (in any form whatsoever) regarding the business activities or employees of Destiny NV

Any violation of this obligation in the course of the duration of this agreement, however small, will form grounds for dissolving the Agreement, without prejudice to the right of Destiny NV to claim compensation.

All documents generated by Destiny NV or entrusted to the Customer regarding the Service(s) and Product(s) in the present Agreement, are and remain the exclusive property of Destiny NV. The Customer may only make a copy of these documents for use solely within the framework of the Agreement.

Destiny NV may at any time demand that the documents and data be returned. The documents and data must in any case be returned to Destiny NV on the date of the termination of this Agreement for any reason whatsoever.

9. Force majeure

Destiny NV is lawfully discharged of and is not required to fulfil any commitment towards the Customer in the event of force majeure. Force majeure is understood as meaning any situation in which the execution of the Agreement by Destiny NV is prevented, in part or in full, temporarily or otherwise, by circumstances beyond the control of Destiny NV, even if the circumstances were already anticipated or could have been anticipated at the time of the establishment of the Agreement. Without being exhaustive, in any case, the following situations are considered force majeure: strike or lock-out, fire, riot, war, terrorism, epidemic, flood, high absenteeism, government decisions or interventions, including the refusal or cancellation of a permit or licences, errors or delays by third Parties (with the exception of (sub)contractors of Destiny NV), cable rupture, power outages, flooding, prolonged freezing weather, fire or storms.

In the event of force majeure, the obligations of Destiny NV will be suspended. In such a case, Destiny NV will make every commercially and economically reasonable effort to limit the consequences of the force majeure situation.

If the force majeure lasts longer than (2) two months, the Customer is entitled to dissolve the Agreement without judicial intervention, effective exclusively for the future, and without the Parties being required to pay the other Party damages or severance compensation.

10. Ombudsman service

In the event of a dispute, the Customer can contact the Ombudsman Telecom Mediation Service (http://www.ombudsmantelecom.be/). Any Customer can request the intervention of the Ombudsman Service free of charge. The Ombudsman has competence for the entire telecommunications sector.

The Ombudsman Service does not aim to take the place of the Destiny NV Customer service and can only act if a Customer has been unable to obtain a satisfactory solution through contacts with Destiny NV.

The Ombudsman Service, which was established by the law of 21 March 1991 within the BIPT operates fully independently of the telecom operators and, within the limits of its powers, receives no instructions from any government authority

Complaints are only admissible if the complainant demonstrates that it has previously taken steps in relation to the telecommunications company in question.

The Ombudsman Telecom Mediation Service may refuse to handle a complaint if that complaint was submitted to Destiny NV over a year previously, or if the complaint is vexatious.

The collection procedure for any disputed costs that are the subject of the complaint will be suspended by Destiny NV for a period of maximum four months starting from the filing of the complaint with the Ombudsman Service. This means that all uncontested costs must nevertheless be paid in a timely fashion

The investigation of the complaint will be terminated if an appeal is filed against it in court.

After mediation by the Ombudsman Service, further legal proceedings remain possible.

11. Malicious calls

The Ombudsman (http://www.ombudsmantelecom.be) is responsible for investigating the complaint of any person who claims to be the victim of malicious use of an electronic communications network or service, in order to obtain information about the identity and address of the users of electronic communications networks or services who have harassed this person, to the extent that such data is available.

The Ombudsman Service will accept the request if the facts appear to be established and the request involves specific data.

In the event of malicious calls whereby the Customer wishes to determine the identity of the suspected perpetrator of these calls, the Customer may file a complaint with the Ombudsman Service

12. Miscellaneous

The Agreement is the entire Agreement that the Parties have entered into with respect to its object. It replaces all previous agreements regarding its object. Any prior discussions and agreements that the Parties have made regarding its object that are not reflected in this Agreement, will not be binding for the Parties.

The Agreement is divisible and if one or more of the provisions of the Agreement is declared invalid, this will not affect the validity of the remaining provisions.

If any part of the Agreement is declared to be excessive in its scope, the provision shall nevertheless be enforceable to the maximum extent permitted by law.

If any part of this Agreement is considered to be completely invalid, the Parties will negotiate new provisions that approximate as closely as possible the economic effect of the provision that has been declared invalid.

Destiny NV is not permitted to use the Customer as a reference for marketing purposes.

Failure to exercise a given right under no circumstances implies a waiver of this right.

Without the authorisation of Destiny NV, the Customer cannot transfer the commitments stemming from this Agreement to third Parties. Destiny NV is entitled to freely transfer the rights and obligations stemming from this Agreement to third Parties.

With regard to its interpretation and execution, the Agreement shall be governed exclusively by Belgian law.

For the recognition of disputes stemming from the execution or termination of this Agreement, the courts and tribunals of the judicial district in which the registered office of Destiny NV is located, shall have sole jurisdiction.