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SERVICE TERMS AND CONDITIONS
BACKGROUND:
Destiny
Business Solutions Limited provides telecommunication services to
business clients. The Service Provider has reasonable skill, knowledge
and experience in that field. These Terms and Conditions shall apply to
the provision of services by the Service Provider to its clients.
1. Definitions and Interpretation
1.1 In these Terms and Conditions, unless the context otherwise requires, the following expressions have the following meanings:
“Agreement”
means the agreement entered into by the Service Provider and the Client
incorporating these Terms and Conditions (or variation thereof agreed
upon by both Parties) which shall govern provision of the Services;


“Business
Day” means, any day (other than Saturday or Sunday) on which ordinary
banks are open for their full range of normal business in Stratford,
London “Client” means the party procuring the Services from the Service
Provider who shall be identified in the Agreement;


“Commencement Date” means the date on which provision of the Services will commence, as defined in the Agreement;


“Confidential
Information” means, in relation to either Party, information which is
disclosed to that Party by the other Party pursuant to or in  connection
with the Agreement (whether orally or in writing or any other medium,
and whether or not the information is expressly stated to be 
confidential or marked as such);


“Fees” means any and all sums due under the Agreement from
the Client to the Service Provider, as specified in the
Agreement;


“Services”
means the services to be provided by the Service Provider to the Client
in accordance with Clause 2 of the Agreement, as fully defined in the
Agreement, and subject to the terms and conditions of the Agreement; and
“Term” means the term of the Agreement as defined therein.
1.2 Unless the context otherwise requires, each reference in these Terms and Conditions to:
1.2.1 “writing”, and any cognate expression, includes a reference to any
communication effected by electronic or facsimile transmission or similar
means;
1.2.2 a statute or a provision of a statute is a reference to that statute or
provision as amended or re-enacted at the relevant time;
1.2.3 “these Terms and Conditions” is a reference to these Terms and Conditions
as amended or supplemented at the relevant time;
1.2.4 a Clause or paragraph is a reference to a Clause of these Terms and
Conditions or to a Clause of the Agreement, as appropriate; and
1.2.5 a "Party" or the "Parties" refer to the parties to the Agreement.
1.3
The headings used in these Terms and Conditions are for convenience
only and shall have no effect upon the interpretation of these Terms and
Conditions.
1.4 Words imparting the singular number shall include the plural and vice versa.
1.5 References to any gender shall include the other gender.
1.6 References to persons shall include corporations.


2. Provision of the Services
2.1
With effect from the Commencement Date, the Service Provider shall,
throughout the Term of the Agreement, provide the Services to the
Client.
2.2 The Service Provider shall provide the Services with
reasonable skill and care, commensurate with prevailing standards in the
telecommunication sector in the United Kingdom.
2.3 The Service
Provider shall act in accordance with all reasonable instructions given
to it by the Client provided such instructions are compatible with the
specification of Services provided in the Agreement.
2.4 The Service
Provider shall be responsible for ensuring that it complies with all
statutes, regulations, byelaws, standards, codes of conduct and any
other rules relevant to the provision of the Services.
2.5 [The
Service Provider may, in relation to certain specified matters related
to the Services, act on the Client’s behalf. Such matters shall not be
set out in the Agreement but shall be agreed between the Parties as they
arise from time to time.]
2.6 [The Service Provider shall use all
reasonable endeavours to accommodate any reasonable changes in the
Services that may be requested by the Client, subject to the Client’s
acceptance of any related reasonable changes to the Fees that may be due
as a result of such changes.]


3. Client’s Obligations
3.1
The Client shall use all reasonable endeavours to provide all pertinent
information to the Service Provider that is necessary for the Service
Provider’s provision of the Services.
3.2 The Client may, from time
to time, issue reasonable instructions to the Service Provider in
relation to the Service Provider’s provision of the Services. Any such
instructions should be compatible with the specification of the Services
provided in in the Agreement.
3.3 In the event that the Service
Provider requires the decision, approval, consent or any other
communication from the Client in order to continue with the provision of
the Services or any part thereof at any time, the Client shall provide
the same in a reasonable and timely manner.
3.4 If any consents,
licences or other permissions are needed from any third parties such as
landlords, planning authorities, local authorities or similar, it shall
be the Client’s responsibility to obtain the same in advance of the
provision of the Services (or the relevant part thereof).
3.5 If the
nature of the Services requires that the Service Provider has access to
the Client’s home or any other location, access to which is lawfully
controlled by the Client, the Client shall ensure that the Service
Provider has access to the same at the times to be agreed between the
Service Provider and the Client as required.
3.6 Any delay in the
provision of the Services resulting from the Client’s failure or delay
in complying with any of the provisions of Clause 3 of the Agreement
shallnot be the responsibility or fault of the Service Provider.


4. Fees, Payment and Records
4.1
The fees outlined in the service charges section are based on the
initial subscription as agreed with the client. In case of changes in
call volumes or number of users, the fees are subject to change.
4.2 The Client shall pay the Fees to the Service Provider in accordance with the charges outlined in the service charges section
4.3 The Service Provider shall invoice the Client for Fees due in accordance with the provisions of the Agreement.
4.4
All payments required to be made pursuant to the Agreement by either
Party shall be made within five Business Days of receipt by that Party
of the relevant invoice by bank transfer. All recurring payments have to
made via GoCardless direct debit only.
4.5 In case of the
cancellation of direct debit by the client under any circumstances will
be considered as formal cancellation of the contract and would be liable
for immediate termination of the services provided. The service
provider shall not be liable for any loss or damage caused due to any
such action undertaken by the client.
4.6 All payments required to be
made pursuant to the Agreement by either Party shall be made in Great
Britain Pound in cleared funds to such bank in London as the receiving
Party may from time to time nominate [, without any set-off, withholding
or deduction except such amount (if any) of tax as that Party is
required to deduct or withhold by law.]
4.7 Where any payment
pursuant to the Agreement is required to be made on a day that is not a
Business Day, it may be made on the next following Business Day.
4.8
Without prejudice to sub-Clause 9.6 of the Agreement, any sums which
remain unpaid following the expiry of the period set out in service
charges section of the Agreement shall incur ceasing of service from
time to time until payment is made in full of any such outstanding sums.
4.9 Each Party shall:
4.9.1
keep, or procure that there are kept, such records and books of account
as are necessary to enable the amount of any sums payable pursuant to
the
Agreement to be accurately calculated;
4.9.2 at the reasonable
request of the other Party, allow that Party or its agent to inspect
those records and books of account and, to the extent that they relate
to the calculation of those sums, to take copies of them;
4.10 If the
Customer does not meet the due payment by due date, Destiny Business
Solutions Limited reserve the right to: (i) suspend or terminate the
customer access to the Services relevant Control Panel; and/or (ii)
charge the Customer interest on the overdue amount(s) at the rate of 3%
per annum above Barclays plc base rate. Interest is calculated and
accrues daily: and/or (iii) charge an administration fee to cover late
payment costs. (iv) Refer the case to an external debt collection
agency. (v) charge the customer for any costs that we incur as a result
of collection process followed by the debt collection agency


5. Liability, Indemnity and Insurance
5.1
The Service Provider shall ensure that it has in place at all times
suitable and valid insurance that shall include public liability
insurance.
5.2 The Service Provider shall not be liable for any loss
or damage suffered by the Client that results from the Client’s failure
to follow any instructions given by the Service Provider.
5.3 The
service provider is not liable or does not take responsibility for any
services other than those directly provided by the service provider that
include but not limited to the client's network, broadband, IT
equipment and so on.
5.4 The Client will be solely responsible for
for verifying that their network meets the requirements of the new
system including porting of numbers if involved. The service provider is
not liable for any damage, losses ocurred due to failure of porting or
any other services as a result of number porting.
5.5 The Client
shall indemnify the Service Provider against any costs, liability,
damages, loss, claims or proceedings arising from loss or damage to any
equipment (including that belonging to any third parties appointed by
the Service Provider) caused by the Client or its agents or employees.
5.6
Neither Party shall be liable to the other or be deemed to be in breach
of the Agreement by reason of any delay in performing, or any failure
to perform, any of that Party’s obligations if the delay or failure is
due to any cause beyond that Party’s reasonable control.


6. Confidentiality
6.1 Each Party undertakes that, except as provided by sub-Clause 7.2 of the
Agreement
or as authorised in writing by the other Party, it shall, at all times
during the continuance of the Agreement and after its termination:
6.1.1 keep confidential all Confidential Information;
6.1.2 not disclose any Confidential Information to any other party;
6.1.3 not use any Confidential Information for any purpose other than as
contemplated by and subject to the terms of the Agreement;
6.1.4 not make any copies of, record in any way or part with possession of any Confidential Information; and
6.1.5
ensure that none of its directors, officers, employees, agents,
subcontractors or advisers does any act which, if done by that Party,
would be a breach of the provisions of sub-Clauses 7.1.1 to 7.1.4 of the
Agreement.
6.2 Either Party may:
6.2.1 disclose any Confidential Information to:
6.2.1.1 any sub-contractor or supplier of that Party;
6.2.1.2 any governmental or other authority or regulatory body; or
6.2.1.3 any employee or officer of that Party or of any of the
aforementioned
persons, parties or bodies; to such extent only as is necessary for the
purposes contemplated by the Agreement (including, but not limited to,
the provision of the Services), or as required by law. In each case that
Party shall first inform the person, party or body in question that the
Confidential Information is confidential and (except where the
disclosure is to any such body under sub-Clause 7.2 or any employee or
officer of any such body) obtaining and submitting to the other Party a
written confidentiality undertaking from the party in question. Such
undertaking should be as nearly as practicable in the terms of Clause 7
of the Agreement, to keep the Confidential Information confidential and
to use it only for the purposes for which the disclosure is made; and
6.2.2 use any Confidential Information for any purpose, or disclose it to any
other person, to the extent only that it is at the date of the Agreement, or
at any time after that date becomes, public knowledge through no fault of
that Party. In making such use or disclosure, that Party must not disclose
any part of the Confidential Information that is not public knowledge.
6.3
The provisions of Clause 7 of the Agreement shall continue in force in
accordance with their terms, notwithstanding the termination of the
Agreement for any reason.


7. Force Majeure
7.1
No Party to the Agreement shall be liable for any failure or delay in
performing their obligations where such failure or delay results from
any cause that is beyond the reasonable control of that Party. Such
causes include, but are not limited to: power failure, internet service
provider failure, industrial action, civil unrest, fire, flood, storms,
earthquakes, acts of terrorism, acts of war, governmental action or any
other event that is beyond the control of the Party in question.
7.2
[In the event that a Party to the Agreement cannot perform their
obligations hereunder as a result of force majeure for a continuous
period to be defined in the Agreement, the other Party may at its
discretion terminate the Agreement by written notice at the end of that
period. In the event of such termination, the Parties shall agree upon a
fair and reasonable payment for all Services provided up to the date of
termination. Such payment shall take into account any prior contractual
commitments entered into in reliance on the performance of the
Agreement.]


8. Term and Termination
8.1 The
Agreement shall come into force on the agreed Commencement Date and
shall continue for a defined Term from that date, subject to the
provisions of Clause 9 of the Agreement.
8.2 Either Party shall have
the right, subject to the agreement and consent of the other Party and
exercisable by giving not less than 30 days written notice to the other
at any time prior to the expiry of the Term specified in sub-Clause 9.1
of the Agreement (or any further period for which the Agreement is
extended) to extend the Agreement for a further period of 30 days.
8.3
Either Party may terminate the Agreement by giving to the other not
less than 30 days written notice, to expire on or at any time after the
minimum term of the Agreement (which shall be defined in the Agreement).
8.4 Either Party may immediately terminate the Agreement by giving written notice to the other Party if:
8.4.1
any sum owing to that Party by the other Party under any of the
provisions of the Agreement is not paid within 10 Business Days of the
due date for payment;
8.4.2 the other Party commits any other breach
of any of the provisions of the Agreement and, if the breach is capable
of remedy, fails to remedy it within 10 Business Days after being given
written notice giving full particulars of the breach and requiring it to
be remedied;
8.4.3 an encumbrancer takes possession, or where the
other Party is a company, a receiver is appointed, of any of the
property or assets of that other Party;
8.4.4 the other Party makes any voluntary arrangement with its creditors or,
being a company, becomes subject to an administration order (within the
meaning of the Insolvency Act 1986);
8.4.5
the other Party, being an individual or firm, has a bankruptcy order
made against it or, being a company, goes into liquidation (except for
the
purposes of bona fide amalgamation or re-construction and in such a
manner that the company resulting there from effectively agrees to be
bound by or assume the obligations imposed on that other Party under the
Agreement);
8.4.6 anything analogous to any of the foregoing under the law of any
jurisdiction occurs in relation to the other Party;
8.4.7 the other Party ceases, or threatens to cease, to carry on business; or
8.4.8
control of the other Party is acquired by any person or connected
persons not having control of that other Party on the date of the
Agreement. For the purposes of Clause 9, “control” and “connected
persons” shall have the meanings ascribed thereto by Sections 1124 and
1122 respectively of the
Corporation Tax Act 2010.
8.5 For the
purposes of sub-Clause 9.4, a breach shall be considered capable of
remedy if the Party in breach can comply with the provision in question
in all respects.
8.6 The rights to terminate the Agreement shall not
prejudice any other right or remedy of either Party in respect of the
breach concerned (if any) or any other breach.


9. Effects of Termination
Upon the termination of the Agreement for any reason:
9.1
any sum owing by either Party to the other under any of the provisions
of the Agreement shall become immediately due and payable;
9.2 all
Clauses which, either expressly or by their nature, relate to the period
after the expiry or termination of the Agreement shall remain In full
force and effect;
9.3 termination shall not affect or prejudice any
right to damages or other remedy which the terminating Party may have in
respect of the event giving rise to the termination or any other right
to damages or other remedy which any Party may have in respect of any
breach of the Agreement which existed at or before the date of
termination;
9.4 subject as provided in Clause 10 of the Agreement
and except in respect of any accrued rights neither Party shall be under
any further obligation to the other; and
9.5 each Party shall
(except to the extent referred to in Clause 7 of the Agreement)
immediately cease to use, either directly or indirectly, any
Confidential Information, and shall immediately return to the other
Party any documents in its possession or control which contain or record
any Confidential Information.
9.6 The following charges would apply
in case of early termination(these do not apply if 30 days notice is
provided) or cancellation without notice or in case of non-payment of
fees
Cancellation Charge £25+VAT
Re-Connection Charge £25 + VAT


10. No Waiver
No
failure or delay by either Party in exercising any of its rights under
the Agreement shall be deemed to be a waiver of that right, and no
waiver by either Party of a breach of any provision of the Agreement
shall be deemed to be a waiver of any subsequent breach of the same or
any other provision.


11. Further Assurance
Each
Party shall execute and do all such further deeds, documents and things
as may be necessary to carry the provisions of the Agreement into full
force and effect.


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


13. Set-Off
Neither
Party shall be entitled to set-off any sums in any manner from payments
due or sums received in respect of any claim under the Agreement or any
other agreement at any time.


13.1 Fair Usage Policy
13.1.1
Whereever applied, unlimited call packages would have a fair usage
policy of 3000 minutes per user. These minutes apply to a mix of 65%
landline and 35% mobile calls. If the usage is beyond the specified
limits, the client would be charged at standard call rates. Any
exceptions to this policy should be agreed and signed separately by
either parties.
13.1.2 A single extension with multiple registrations
is meant for the use of single user with multiple devices. Any misuse
of this feature will result in immediate termination of the services.


14. Assignment and Sub-Contracting
14.1
[Subject to sub-Clause 15.2] The Agreement shall be personal to the
Parties. Neither Party may assign, mortgage, charge (otherwise than by
floating charge) or sub-licence or otherwise delegate any of its rights
there under, or sub-contract or otherwise delegate any of its
obligations there under without the written consent of the other Party,
such consent not to be unreasonably withheld.
14.2 [The Service Provider shall be entitled to perform any of the obligations
undertaken by it through any other member of its group or through suitably
qualified
and skilled sub-contractors. Any act or omission of such other member
or sub-contractor shall, for the purposes of the Agreement, be deemed to
be an act or omission of the Service Provider.]


15. Time
15.1 [All times and dates referred to in the Agreement shall be of the essence of the Agreement.]
OR
15.2
[The times and dates referred to in the Agreement shall be for guidance
only and shall not be of the essence of the Agreement and may be varied
by mutual agreement between the Parties.]


16. Relationship of the Parties
Nothing
in the Agreement shall constitute or be deemed to constitute a
partnership, joint venture, agency or other fiduciary relationship
between the Parties other than the contractual relationship expressly
provided for in the Agreement.


17. Non-Solicitation
17.1
Neither Party shall, for the Term of the Agreement and for a defined
period (which shall be defined in the Agreement) after its termination
or expiry, employ or contract the services of any person who is or was
employed or otherwise engaged by the other Party at any time in relation
to the Agreement [without the express written consent of that Party].
17.2
Neither Party shall, for the Term of the Agreement and for a defined
period (which shall be defined in the Agreement) after its termination
or expiry, solicit or entice away from the other Party any customer or
client where any such solicitation or enticement would cause damage to
the business of that Party [without the express written consent of that
Party].


18. Third Party Rights
18.1 No part of
the Agreement shall confer rights on any third parties and accordingly
the Contracts (Rights of Third Parties) Act 1999 shall not apply to the
Agreement.
18.2 Subject to Clause 19 of the Agreement, the Agreement
shall continue and be binding on the transferee, successors and assigns
of either Party as required.


19. Notices
19.1
All notices under the Agreement shall be in writing and be deemed duly
given if signed by, or on behalf of, a duly authorised officer of the
Party giving the notice.
19.2 Notices shall be deemed to have been duly given:
19.2.1 when delivered, if delivered by courier or other messenger (including
registered mail) during normal business hours of the recipient; or
19.2.2 when sent, if transmitted by facsimile or e-mail and a successful
transmission report or return receipt is generated; or
19.2.3 on the fifth business day following mailing, if mailed by national ordinary mail, postage prepaid; or
19.2.4
on the tenth business day following mailing, if mailed by airmail,
postage prepaid. In each case notices shall be addressed to the most
recent address, e-mail address, or facsimile number notified to the
other Party.


20. Entire Agreement
20.1 The
Agreement contains the entire agreement between the Parties with respect
to its subject matter and may not be modified except by an instrument
in writing signed by the duly authorised representatives of the Parties.
20.2
Each Party shall acknowledge that, in entering into the Agreement, it
does not rely on any representation, warranty or other provision except
as expressly provided in the Agreement, and all conditions, warranties
or other terms implied by statute or common law are excluded to the
fullest extent permitted by law.


21. Counterparts
The
Agreement may be entered into in any number of counterparts and by the
Parties to it on separate counterparts each of which when so executed
and delivered shall be an original, but all the counterparts together
shall constitute one and the same instrument.


22. Severance
In
the event that one or more of the provisions of the Agreement and/or of
these Terms and Conditions is found to be unlawful, invalid or
otherwise unenforceable, that / those provision(s) shall be deemed
severed from the remainder of the Agreement and/or these Terms and
Conditions. The remainder of the Agreement and/or these Terms and
Conditions shall be valid and enforceable.


23. Dispute Resolution
23.1
The Parties shall attempt to resolve any dispute arising out of or
relating to the Agreement through negotiations between their appointed
representatives who have the authority to settle such disputes.
23.2
[If negotiations under sub-Clause 24.1 of the Agreement do not resolve
the matter within 15 of receipt of a written invitation to negotiate,
the parties will attempt to resolve the dispute in good faith through an
agreed Alternative Dispute Resolution (“ADR”) procedure.]
23.3 [If
the ADR procedure under sub-Clause 24.2 of the Agreement does not
resolve the matter within 30 days of the initiation of that procedure,
or if either Party will not participate in the ADR procedure, the
dispute may be referred to arbitration by either Party.
23.4 The seat
of the arbitration under sub-Clause 24.3 of the Agreement shall be
England and Wales. The arbitration shall be governed by the Arbitration
Act 1996 and Rules for Arbitration as agreed between the Parties. In the
event that the Parties are unable to agree on the arbitrator(s) or the
Rules for Arbitration, either Party may, upon giving written notice to
the other Party, apply to the President or Deputy President for the time
being of the Chartered Institute of Arbitrators for the appointment of
an arbitrator or arbitrators and for any decision on rules that may be
required.]
23.5 Nothing in Clause 24 of the Agreement shall prohibit
either Party or its affiliates from applying to a court for interim
injunctive relief.
23.6 The decision and outcome of the final method
of dispute resolution under Clause  24 of the Agreement shall [not] be
final and binding on both Parties.


24. Faults


Destiny
Business Solutions Limited will make every effort to provide you with
the best possible service; we cannot guarantee that the service will
never be at fault. Destiny Business Solutions Limited will make every
effort to correct all reported faults as soon as we reasonably can,
affording any notice period where possible and complying with the
clauses contained herein.


25. Limitation of Liability


Under
no circumstances shall Destiny Business Solutions Limited be liable to
you for any damages, including without limitation any damages for lost
profits or business, loss of goodwill, interruption of business, or for
any exemplary, punitive, special, indirect, incidental, consequential or
special damages, regardless of whether such claim arises under any
theory of tort, advice, contract, strict liability or otherwise and
regardless of whether Destiny Business Solutions Limited is advised of
the possibility of any such damages.


26. Law and Jurisdiction
26.1
The Agreement and these Terms and Conditions (including any
non-contractual matters and obligations arising there from or associated
therewith) shall be governed by, and construed in accordance with, the
laws of England and Wales.
26.2 Subject to the provisions of Clause
23 of the Agreement, any dispute, controversy, proceedings or claim
between the Parties relating to the Agreement or these Terms and
Conditions (including any non-contractual matters and obligations
arising there from or associated therewith) shall fall within the
jurisdiction of the courts of England and Wales.


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