Article 1: Applicability
These General Terms and Conditions of Service (also referred to as “GTC”) apply to, and incorporated into, all agreements entered into by and between Bolder Business Services (Netherlands) B.V. (hereinafter “BOLDER LAUNCH“), all BOLDER LAUNCH’s offers and quotations, deliveries and services provided by BOLDER LAUNCH.
By accepting these GTC, the Client waives any right to claim that any other general terms and conditions shall be applicable.
In case any provision in these GTC shall be invalid, illegal or unenforceable, the validity, legality and enforceability of the remaining provisions shall not in any way be affected or impaired thereby. If one or more provisions of these GTC shall appear to be fully or partly illegal or not enforceable under the applicable law, they shall hereby be replaced by provisions for which this does not apply and which provide near enough the same as the void and non-enforceable provisions.
No variation to these GTC may be agreed other than expressly confirmed in writing and signed by authorized representatives of the parties.
Article 2: Definitions
2.1 Information: information disclosed orally or in writing by BOLDER LAUNCH to the Client on different areas including but not limited to: accounting, immigration/ residency, legal entity formation, banking, legal advice, market entry.
2.2 Agreement: the bookkeeping agreement, engagement letter, and/or the Order Form entered into by and between the Client and BOLDER LAUNCH for the provision of the services.
2.3 Order form: document submitted by Client with title Order Form in order to request the Services from BOLDER LAUNCH.
2.4 Client: party identified as the Client on the Agreement and which appears on the BOLDER LAUNCH invoice.
2.5 Due Diligence: the assessment performed by BOLDER LAUNCH, including but not limited to the procedure by which it establishes whether the envisaged use of a Legal Entity and/or a structure by or in the interest of the Client and/or of its beneficiaries is in line with the policies of BOLDER LAUNCH and/or otherwise in line with the principles of legitimate business and/or good governance. The process shall include but not be limited to a review in relation to AML and other international due diligence.
2.6 Incorporation: to incorporate or have incorporated or acquired one or more legal entities in one or more jurisdiction/s.
2.7 Legal Entity: a legal person (as opposed to a natural person) as established within the laws of the land of its incorporation.
2.8 Immigration Services: services provided by BOLDER LAUNCH or other affiliated independent professional parties mostly related to advice over immigration procedures, including filing of residence permits and visa applications.
2.9 Business Plan: written document that describes in detail how a new business is going to achieve its goals. A business plan will lay out a written plan from a marketing, and/or operational viewpoint.
2.10 Company Formation: the process of incorporating a legal entity or other entity.
2.11 Company Dissolution: the process of closing a business, liquidating all assets of the company, dissolving a company and making the de-registration.
2.12 Services: all services provided by BOLDER LAUNCH, its officers, employees or contractors affiliated with BOLDER LAUNCH, including but not limited to: accounting services, immigration services, corporate secretarial/ services, Legal Entity formation, bank account opening, contract drafting & other legal services.
2.13 Fees: the total price for the Services provided by BOLDER LAUNCH as described in the Agreement, as may be agreed from time to time.
2.14 Offer: the written offer extended by BOLDER LAUNCH to the Client, in which it states against which conditions (financial or otherwise) it is willing to, on behalf of the Client, incorporate a legal entity, or under which terms BOLDER LAUNCH will provide Services. The validity of the Offer may be limited in time.
Article 3: The Agreement
3.1 Any contract entered into by and between BOLDER LAUNCH and the Client will be subject to these GTC and no other terms and conditions shall be binding unless they are expressly agreed in writing by both Parties.
3.2 The Client’s request for one of the Services of BOLDER LAUNCH (such as the incorporation of a Legal Entity) will only be deemed accepted once BOLDER LAUNCH has received the signed Agreement and invoicing details.
3.3 The Client acknowledges that entering into the Agreement with BOLDER LAUNCH becomes subject to these GTC as a principal and not as an agent for or on behalf of any other person and accepts personal liability for the payment of BOLDER LAUNCH’s fees. In case BOLDER LAUNCH provides any of the Services to the company, the Client agrees to give their personal guarantee that BOLDER LAUNCH’s fees will be paid. Therefore, the ultimate beneficial owner of the Client will be personally liable for the costs of the Services provided by BOLDER LAUNCH.
3.4 The Client’s order concerning the formation of a Legal Entity, will in any event also be considered an order by the ultimate shareholder/beneficial owner, and for this reason the Client will be personally liable for the payment of the fees to BOLDER LAUNCH.
3.5 In the order/confirmation sheet of services, BOLDER LAUNCH shall detail the nature and composition of Services to be provided, including the time schedule of the deliverables.
3.6 BOLDER LAUNCH will issue a (pro forma) invoice for the Services, which shall be paid within 14 (fourteen) working days from the date of invoice. Should the Client fail to pay within that period, a contractual fine will be due, equal to 25% of the amount of the invoice, which is not subject to compensation or set off by the Client and cannot be reduced by a Court or arbitrator. Payment will not be refundable except gross negligence or willful misconduct from BOLDER LAUNCH.
Article 4: Term and Termination of the Agreement
4.1 The Agreement enters into effect as from the date of incorporation of the Client company and shall continue for an indefinite period of time, unless terminated by BOLDER LAUNCH or Client, upon at least two months prior written notice to the other before the end of the calendar month. These rules are applied unless otherwise stipulated in the Agreement. It is being understood that if the notice is given by BOLDER LAUNCH, it shall procure that a copy of the notice is sent to the Ultimate Beneficial Owner (hereinafter referred to as “UBO”), as the case may be, along with the notice to the Client. Suspension of BOLDER LAUNCH as service provider of the Client by the Client will be considered as a termination notice without waiving any of the financial obligations of the Company towards BOLDER LAUNCH.
4.2 BOLDER LAUNCH may terminate the Agreement and resign, without any compensation becoming due by BOLDER LAUNCH, as a service provider of the Client with immediate effect if and when the course of affairs of the UBO and/or the Company is such that BOLDER LAUNCH cannot reasonably be expected to continue being a service provider any further, including but not limited to the occurrence of the following events:
(i) the bankruptcy, the granting of a moratorium, the winding-up, or any resolutions for the purpose thereof, of the Client company;
(ii) the Client company is dissolved either pursuant a resolution by the Client company or as a result of any other event;
(iii) any material change in the (beneficial) ownership, change in the line of business pursued by the Client company, change in the composition of the board of managing directors of the Client company or any other change of control in respect of the Client company, which has not been endorsed of by BOLDER LAUNCH;
(iv) BOLDER LAUNCH is unable to contact the UBO as the case may be, or their representative(s) for a period in excess of one month; or
(v) the reason related to the absence of the level of trust that needs to exist between a client and its advisors in order for the relationship to be successful. The Client remains responsible for payment to Bolder Launch for services and costs incurred before termination and in connection with the orderly transition of the matter.
4.3 The Agreement may be terminated by either BOLDER LAUNCH or the Client with immediate effect, without any compensation becoming due, upon written notice to the other party in case of a material breach of any obligation under the Agreement by the other party not remedied within 30 days after the terminating party has required in writing from the other party to remedy such breach.
4.4 Upon termination of the Agreement, BOLDER LAUNCH and/or its employees shall resign as a service provider of the Client company as per the date of termination and BOLDER LAUNCH will be authorized to inform, to the extent necessary, tax and other governmental authorities of its resignation and the reasons thereof.
4.5 Upon termination of the Agreement, BOLDER LAUNCH shall return to the Client forthwith all books, records and other documents of the Client company, which are in the possession of BOLDER LAUNCH, subject to prior settlement of any amounts owed by the Company to BOLDER LAUNCH up to the latter of the termination or transfer date. In the event the Agreement is terminated during the course of a calendar year, the management fee paid for that year will pro-rated accordingly.
4.6 In case of termination of the Agreement, additional fees may be applicable to cooperate with the transfer of the records or administration of the Client, or the transfer to a new service provider. These fees will have a minimum of EUR 450.
Article 5: Nature of the Information provided by BOLDER LAUNCH to the Client
5.1 Any Information provided by BOLDER LAUNCH to the Client will be disclosed to its best knowledge, thereby using its experience and expertise in the areas of law, Company Formation and taxation. Information provided by BOLDER LAUNCH to the Client should not be considered legal or tax advice.
5.2 Any Information given to the Client may be based on particular circumstances related to the Client and might depend on factual situation that can neither be foreseen nor assessed by BOLDER LAUNCH.
5.3 The Client is at all times advised to consult his own accountant and/or legal adviser and/or tax adviser. The Client can instruct BOLDER LAUNCH to have a Tax or Legal Opinion/Memorandum prepared by a third party to obtain legal certainty on their situation, however any Information shared by BOLDER LAUNCH during the process of obtaining any of the Services of BOLDER LAUNCH, cannot be considered as such.
5.4 The Information is based on the legislation and jurisprudence as known and reasonably foreseeable at the time the Information is given. It does not constitute a warranty or a guarantee that either will remain unchanged.
Article 6: Use of services of third parties
6.1 When providing Services BOLDER LAUNCH is entitled to use affiliated third parties providers. BOLDER LAUNCH shall, as far as possible, consult the Client before instructing third parties and shall in any event exercise due care in its selection of third parties.
6.2 BOLDER LAUNCH shall not be liable for any acts and/or omissions of third-party providers.
6.3 The Client indemnifies and holds BOLDER LAUNCH harmless from and against any and all third-party claims, including reasonable legal costs, arising in whatever manner from the activities carried out for the Client, unless they are a result from gross negligence or willful misconduct by BOLDER LAUNCH.
Article 7: Client Onboarding & Monitoring
7.1 Under the Wet ter voorkoming van witwassen en financiering van terrorisme (Anti-Money Laundering and Anti-Terrorist Financing Act) (hereinafter “WWFT”), BOLDER LAUNCH is required to have received all relevant Know-Your-Client (hereinafter “KYC”) information from the Client before it can render any Services to the Client. Any Information received by BOLDER LAUNCH will be treated as strictly confidential. Client shall provide all KYC Information as requested.
7.2 Whether or not BOLDER LAUNCH can provide one or more of the Services, is subject to approval from our local management and our compliance department. The Services and related Fees are under the assumption and condition that BOLDER LAUNCH will be timely informed on all relevant matters and documentation required for an efficient handling of the services (and that BOLDER LAUNCH will be provided swiftly with all KYC documents as required under the relevant legislation and policies).
7.3 Client will inform BOLDER LAUNCH forthwith or latest within 30 days of any changes or anticipated changes in the legal or beneficial ownership of the Client company including any changes in beneficiary or class of persons relating to a trust, as the case may be, the board of managing directors, or a material change as to its activities, assets and liabilities.
7.4 In case of a change in beneficial ownership and/or representative/s of the Client company, BOLDER LAUNCH will have to start a new Client onboarding/Due diligence procedure, for which additional fees may be applicable. Additional ‘Due Diligence’ fees may be applicable in the event that BOLDER LAUNCH has reason to further investigate the background of the Client company, or any of the transactions that it has performed.
Article 8: Immigration / Residency Services
BOLDER LAUNCH cannot and will not guarantee that the Immigration authorities will grant any permit, visa’s or other authorizations and is not responsible for any refusal of Client’s application.
Article 9: Business Plan Services
9.1 BOLDER LAUNCH will serve the Client to its best ability. However, the success of an investment for a specific Client may depend on circumstances relating to Client, third parties, or other issues that can neither be foreseen nor assessed by BOLDER LAUNCH. BOLDER LAUNCH does not guarantee success of funding requests, permit applications, or other such use of BOLDER LAUNCH’s products. BOLDER LAUNCH will not be responsible for the content included in the business plan provided by the Client.
9.2 BOLDER LAUNCH will provide a quote to The Client based on the input of the Client, and based on the expectation that The Client will cooperate in order to properly finalize the Business Plan. BOLDER LAUNCH can’t be held liable for any shortcomings of the Business Plan due to a non-cooperative attitude of The Client.
9.3 Any instructions received from client after approval of BOLDER LAUNCH’s quote, might result in additional fees, depending on the extra amount of work to be delivered by BOLDER LAUNCH. BOLDER LAUNCH will inform the Client before engaging in any work that may increase the agreed fees, which shall be accepted beforehand in writing by the Client. This does not include any extra standard fees that might apply based on the General Terms and Conditions or any applicable services conditions.
9.4 Any work excluded from the business plan service (including (but are not restricted to): Applications for funding or permits, financial advice, market research, marketing, interim work, translations, slide (e.g. pitch) decks, Company Formation, bank accounts, (audited) financial plan, accounting services.) may be offered by BOLDER LAUNCH upon request. BOLDER LAUNCH will agree with the Client before engaging in any work that may increase the agreed fees, which shall be accepted beforehand in writing by the Client.
9.5 The creation of business plans highly depends on the Client’s input which shall be given in English language. Client therefore commits to speaking with the BOLDER LAUNCH employee for a minimum of 8 hours in a period of 4 weeks following the 1st interview. Client also commits to providing the requested input. Not meeting these requirements allows BOLDER LAUNCH to finish the business plan.
Article 10: Corporate Secretarial Services
10.1 By signing the Agreement, and these GTC and/or paying for the company Incorporation Services, or Corporate Secretarial Services, the Client will enter into a contract with BOLDER LAUNCH for one (1) year, concerning the provision of Company Officer services.
10.2 The scope of the Corporate Secretarial Services is described in the Corporate Services Fact Sheet, and the services to be provided will depend on the requirements of the Client.
10.3 As part of the Corporate Secretarial Services, Client may request BOLDER LAUNCH to support with the opening of the bank account for the Client company. BOLDER LAUNCH has no direct arrangements with Dutch or overseas banks to facilitate the opening of a bank account. Due to Dutch regulations (supervised by AFM) BOLDER LAUNCH is not allowed to perform any activities related to the opening of a bank account, except making basic introductions (forwarding contact details). BOLDER LAUNCH cannot guarantee that the selected bank will open the bank account, as this decision is based on the bank’s compliance or client acceptance agreements. Furthermore, BOLDER LAUNCH cannot be held responsible for any delays and/or rejection of the bank account opening.
10.4 As part of the Corporate Secretarial Services, Client may request BOLDER LAUNCH to assist with obtaining a Dutch VAT number for the Client company (provided that it fulfills the requirements). BOLDER LAUNCH cannot provide any guarantee that the Company will be able to obtain a VAT number in the Netherlands. BOLDER LAUNCH cannot be held liable in case the Dutch tax authorities decide to freeze or cancel the Client company’s VAT number.
Article 11: Bookkeeping/Accountancy Services
11.1 BOLDER LAUNCH provides a quote to the Client based on the total amount of expected transactions that will be part of the bookkeeping of the Company. Additional fees may be applicable for the closure of the book year and may similarly be quoted based on the amount of transactions of the Company. BOLDER LAUNCH may charge additional fees in case complex tax or administrative issues occur, or when extra due diligence research is required.
11.2 The Client shall provide BOLDER LAUNCH with all financial information, in particular information pertinent to the preparation of the annual accounts of the Client company, including but not limited to copies of contracts, invoices, purchase orders, etc., as well as all relevant information concerning transactions entered or expected for the Client company, if any, as well as copies of all resolutions adopted by the Client company’s meeting of board of managing directors, either in a meeting or in writing without convening a meeting.
11.3 The bookkeeping/accountancy services will be performed based on the information provided by the Client.
11.4 BOLDER LAUNCH will not be liable for late tax/report filing, if the Client has not provided BOLDER LAUNCH with the required documents on time or the documents provided are not correct and/or complete, or any other event unless intent or gross negligence on the part of BOLDER LAUNCH.
Article 12: Company Formation Services
12.1 The price for setting up a Legal Entity only includes the registration of the company, as described in the proposal extended to the Client by BOLDER LAUNCH.
12.2 BOLDER LAUNCH will deal with notaries and/or lawyers and/or other third parties, in order to complete the Company Formation. Personal details of the Client and the company will be shared with such third parties, for the sole purpose of completing the Company Formation. The Client ensures the consent of their shareholders/UBO to the processing of their personal data. Bolder Launch ensures the processing and protection of personal data in accordance with the legislation requirements.
12.3 Any draft statutory document provided by BOLDER LAUNCH or a notary, has a validity of 30 days. In case the Client takes more than 30 days to get documents legalized, signed, or revised, BOLDER LAUNCH holds no longer responsibility for the accurateness of the documents. It is suggested that after 30 days, the Client shall verify with BOLDER LAUNCH the validity of the documents.
12.4 Any document related to KYC that was provided by Client has a limited validity period. BOLDER LAUNCH cannot be held responsible for any extra costs in case a new version of a document must be drafted, due to delay in the Company Formation process.
12.5 BOLDER LAUNCH can’t be held responsible for any delays, or extra fees, in the event of unexpected changes in KYC/Client onboarding regulations or procedures, as enforced by law or the involved third parties.
12.6 BOLDER LAUNCH can cancel the Company Formation Service, in case the Client does not respond for a period of more than 30 days, without entitlement for a refund. Extra fees will apply to reactivate the Company Formation Service (starting at 750 EUR).
12.7 BOLDER LAUNCH can cancel the Company Formation Service due to the absence of the level of trust that needs to exist between a client and its advisors in order for the relationship to be successful. The Client remains responsible for payment to Bolder Launch for services and costs incurred before termination and in connection with the orderly transition of the matter.
12.8 Extra due diligence fees may apply, as described in these GTC.
12.9 Once the payment has been received, a grace period of 2 days will be applicable. This fee excludes any ‘contribution fees’ charged by the local Chamber of Commerce to the UBO Client company/i.e. courier charges, (unexpected) legalization fees, office charges, and legal or secretary fees in case of additional required guidance, support or documents. BOLDER LAUNCH will perform the Client Onboarding before it can initiate the Company Formation Service. BOLDER LAUNCH, or a third party such as the notary, may request for additional documentation, translation, or legislation during the process. BOLDER LAUNCH cannot be held responsible or liable for additional expenses or delays.
12.10 In the event that the Client requires a (local) bank account, or requires to perform a bank deposit, or apply for a bank declaration, BOLDER LAUNCH can’t be held liable for the opening of the bank account, or the cooperation of any bank. BOLDER LAUNCH does not guarantee that the Client is able to open a bank account. BOLDER LAUNCH has not been involved in the structuring process and the Client has consulted his/her lawyer and/or accountant to check any fiscal and legal issues. The Client can contact his/her consultant at BOLDER LAUNCH for further assistance or consult when required before formation. BOLDER LAUNCH will not be involved in the structuring process. The Client shall consult their lawyer and/or accountant to check any fiscal and legal issues. The Client can contact BOLDER LAUNCH for further assistance when required before the formation.
12.11 BOLDER LAUNCH will provide the Client with a timeline for the Company Formation Service, however, BOLDER LAUNCH cannot be held responsible for any delays. The time(s) for the company formation may not at any time be considered times of the essence, unless otherwise agreed explicitly in writing.
12.12 Client contact BOLDER LAUNCH in order to receive information about their Services or other information related to legal entities or structures. Unless informed otherwise, the Client shall not be charged for such information and any other advice following upon that information. During the process of providing information, BOLDER LAUNCH may ask the Client to submit certain information regarding his person, his address/es, his present, previous or future business activities, in order to assess which, if any, Legal Entity and/or structure might be advisable for the Client. BOLDER LAUNCH may depend on the validity of this information for its Due Diligence. Should, during this Due Diligence, became obvious that such information is not only incorrect and/ or false, BOLDER LAUNCH may charge the Client for the costs of the Due Diligence, with a minimum of € 500.
12.13 Costs of third parties will, in principle, always be charged to the Client. BOLDER LAUNCH is under no obligation to supply such information or to give advice to the Client.
12.14 BOLDER LAUNCH will not at any time be liable for any indirect damages, including loss of profits, consequential damage, loss of savings and damage due to a standstill in business operations.
12.15 Upon receipt of the full amount of the (pro forma) invoice, BOLDER LAUNCH will proceed to set-up the Legal Entity within 30 working days, or such period as shall be agreed explicitly in writing.
Article 13: Company Dissolution Services
13.1 Upon the Client’s request for voluntary company dissolution and based on information and documents provided by the Client, BOLDER LAUNCH will coordinate the liquidation procedure, de- registration at the Chamber of Commerce, and final tax compliance.
13.2 BOLDER LAUNCH is not responsible for any remaining debt or obligation of the Client.
13.3 Upon the dissolution of the company, BOLDER LAUNCH will automatically cancel all the other services provided to the Client. BOLDER LAUNCH is not responsible for any issues or liabilities caused by the termination of services.
Article 14: Offer
14.1 A quotation issued by BOLDER LAUNCH shall not constitute a binding offer.
14.2 An Order Form submitted by the Client constitutes a legally binding offer to enter into an agreement with BOLDER LAUNCH pursuant to these GTC and the terms of any relevant quotation sent by BOLDER LAUNCH.
14.3 Such offer may be accepted by BOLDER LAUNCH in writing or orally , or by performing BOLDER LAUNCH’s obligations from an agreement.
14.4 A quotation or proposal shall not have the purpose of a full estimation of any possible expense that will occur for the Company in the first (or ongoing) year(s) of business. The estimated fees will be relevant to the Services that can be offered and provided by BOLDER LAUNCH, and the sole purpose of the presentation of these fees is to provide an understanding of the Services of BOLDER LAUNCH. It does not illustrate an overview of any expected or upcoming expense, or to be considered legal requirements.
Article 15: Limitation of Liability
15.1 BOLDER LAUNCH shall be liable for non-completion or delay of performing a Service only if it has been proven that the non-completion or delay was part of the core responsibilities of BOLDER LAUNCH and it has been proven that the non-completion or delay was caused by the willful neglect or willful default of BOLDER LAUNCH. The core responsibilities of BOLDER LAUNCH include timely filing (and responsibility for any penalties due to delay) and keeping the books according to the laws of the Netherlands. The extent of BOLDER LAUNCH’s liability shall not exceed the amount of the contract price and in no circumstance will BOLDER LAUNCH be liable for any consequential loss or loss of profits arising as result of the above.
Except in the event of intent or gross negligence on his part BOLDER LAUNCH is not liable for:
– damage occurring at the Client or third parties which is the result of the provision of incorrect or incomplete information by the Client to BOLDER LAUNCH or which is the result of some other act or omission on the part of the Client;
– damages in the form of the penalties imposed on the Clients by the tax authorities for any errors in VAT (CIT) returns /financial reports, approved by the Client before their filing by BOLDER LAUNCH;
– damage occurring at the Client or third parties which is the result of acts or omission on the part of agents called in by BOLDER LAUNCH (not including employees of BOLDER LAUNCH)/ also if these work for an organization which is affiliated with BOLDER LAUNCH;
– consequential damage or loss of profits occurring at the Client, including but not limited to interruptions in the orderly conduct of events in the Client’s business.
The Client indemnifies BOLDER LAUNCH against all claims from third parties, including shareholders, directors, supervisory directors and employees of the Client, as well as affiliated legal entities and enterprises and others involved in the Client’s organization and directly or indirectly related to the fulfilment of the Agreement. The Client specifically indemnifies BOLDER LAUNCH against claims from third parties on account of damaged caused because the Client provided incorrect or incomplete information to BOLDER LAUNCH, unless the Client demonstrates that the damage is not related to any culpable act or omission on his part, or has been caused by willful misconduct or gross negligence on the part of BOLDER LAUNCH.
15.2 Without prejudice to the definition set out in the law and in case law, force majeure will be defined as any circumstance beyond BOLDER LAUNCH’s control that temporarily or permanently prevents fulfilment of the Agreement or Service, such as war or war risk, riots, whole or partial mobilization, strikes, lack of raw materials, a delay in the supply of goods by suppliers, unforeseen circumstances within the company, transport difficulties, import and/or export restrictions, frost, fire, epidemics, acts of God and any other unforeseen impediments that make the manufacture or transport of the goods fully or partially impossible. The provisions laid down in this article will also apply in the event that the circumstances referred to, occur in respect of plants, suppliers or other traders from which or whom BOLDER LAUNCH purchases goods or services. In the event that BOLDER LAUNCH is prevented from fulfilling the Agreement due to the force majeure referred to above, BOLDER LAUNCH will at its discretion, and without any legal intervention being required, be entitled either to suspend performance until the circumstance which constitutes force majeure has ceased to exist, or to dissolve the agreement in whole or in part by means of sending a letter by registered mail, without being obliged to pay damages.
Article 16: Confidentiality
16.1 The UBO and the Client company shall, at first request of BOLDER LAUNCH, disclose to BOLDER LAUNCH such information concerning itself and its affiliates, as BOLDER LAUNCH in its sole discretion deems necessary or appropriate for the proper performance of its duties.
16.2 BOLDER LAUNCH shall not disclose to any third party or use, without the UBO’s prior consent, any documents or information relating to the UBO or the Client or any of its affiliates and their respective business policies and practices, except to the extent that such information belongs to the public domain or BOLDER LAUNCH can show that such information may not reasonably be regarded as confidential or that disclosure is required for the performance of its duties under the Agreement or by law. The latter includes any obligation to disclose information on basis of law and/or regulatory requirements from the Dutch Central Bank.
Article 17: Covenants
17.1 The UBO and the Client company will during the term of the Agreement and after its termination fully indemnify BOLDER LAUNCH, its managing directors, officers and its employees, and hold each and any of them harmless, against any past, pending and future claims of whatever nature (none excluded), exercised by third parties, for damages, directly or indirectly, incurred as a result of the performance by BOLDER LAUNCH of its duties under the Agreement or relating to the discharge of its duty as service providers of the Client company or incurred as a result of actions or omissions of any managing director and/or holders of powers of representation (if any), unless such damages result from gross negligence of or willful misconduct by the Service Provider as evidenced by a final judgment rendered by the competent courts in the Netherlands. The indemnity granted to BOLDER LAUNCH, its managing directors, officers and its employees, includes all liabilities, damages, losses, taxes, charges, fines, costs, amounts paid in settlement, expenses and legal and other professional fees which each and any of them may at any time incur.
17.2 The UBO and the Company have disclosed to BOLDER LAUNCH all the information relating to the condition (financial or otherwise), the business, affairs, objects and actions or transactions of the Company, material for disclosure to an intending administrative service provider of the Company.
17.3 The Client company is not, and will not be engaged in offshore gambling or gaming, arms or sex related business or illegal or criminal activities as money laundering and/or tax fraud.
Article 18: Liability
BOLDER LAUNCH, its managing directors, officers and employees will not be liable towards the UBO and/or the Company, for any action or omission relating to the discharge of its duties as service provider of the Company or to the performance of the Service Provider under the Agreement other than for damages suffered by the Client company as a result of the Service Provider’s gross negligence or willful misconduct in the discharge of its duties or in the performance of its obligations under the Agreement as evidenced by a final judgment rendered by the competent courts in the Netherlands. This non-liability includes any damages incurred in connection with the use of electronic communication, multimedia or cyber facilities, as well as any other commercially available communication facility. This provision shall continue to be in force notwithstanding the termination of the Agreement.
Article 19: Notices
Except as otherwise required by Dutch law, all announcements, notices and other communications pursuant to the Agreement will be delivered to the addresses mentioned in the heading of the Agreement or such other address as one party has communicated to the other party of the Agreement.
Sending messages to BOLDER LAUNCH by any electronic means will be at the Client’s own risk. BOLDER LAUNCH will not be responsible or liable for the non-arrival, incomplete arrival or incorrect arrival of any message sent by electronic means.
Article 20: Severability
20.1 If any term or provision of the Agreement is invalid, illegal or incapable of being enforced by any law or public policy, all other terms and provisions of the Agreement shall nevertheless remain in full force and effect.
20.2 Upon such determination that any term or provision of the Agreement is invalid, illegal or incapable of being enforced, the Parties hereto shall negotiate in good faith to modify the Agreement as to affect the original intent of the Parties as closely as possible in an acceptable manner.
Article 21: Miscellaneous
21.1 The clause headings in the Agreement are inserted for reference purposes only and shall not affect the interpretation of any of the provisions of the Agreement.
21.2 The Agreement may be amended or supplemented only by an instrument in writing, dated and signed on behalf of each of the parties hereto, unless otherwise provided in these GTC or in the Agreement.
21.3 During the first year after the Agreement has been executed, the Fees will apply for the Services, as they were mentioned in the Agreement. After the first year, BOLDER LAUNCH may change the Fees at any point in time, after giving written notice to the Client at least 10 working days before the change.
21.4 The Parties agreed that Agreements contain the entire agreement between BOLDER LAUNCH and the Client and supersedes all prior agreements, arrangements, negotiations and understandings between the parties relating to the subject matter hereof.
21.5 None of the parties of the Agreement rights and obligations under the Agreement may be assigned to any third party, without the other party of the Agreement’s prior written consent, except for the right of BOLDER LAUNCH to assign to another party any claims arising under this Agreement.
21.6 Regarding the processing of personal data, please refer to the privacy statement as attached.
Article 22: Governing Law and Jurisdiction
The law governing the Agreement and these GTC, including the question of its validity, shall be the Dutch law and any litigation relating thereto shall be subject to the jurisdiction of the Dutch Courts.
ANNEX TO THE GENERAL TERMS AND CONDITIONS OF BOLDER BUSINESS SERVICES (NETHERLANDS) B.V.
Data Protection Protocol
PREAMBLE
A This Data Protection Protocol (Protocol) sets out how the Bolder Group and its subsidiaries and affiliates (in this Data Protection Protocol referred to as Bolder, we, us or our) protect the confidentiality of the Personal Data which we collect, hold, use and disclose, for and on behalf of Clients.
B This Protocol is applicable where we process and/ or control Personal Data and where our clients are a (joint) Controller. It sets out the security practices and technical and organizational measures that we have implemented to ensure the security and confidentiality of the Personal Data.
C This Protocol shall form an integral part of the agreement for Services entered into between Bolder and the Client (the Agreement) insofar as and to the extent that such Agreement shall provide for the protection and confidentiality of Personal Data and where applicable, this Protocol shall replace any and all other provision made in such Agreement, as it relates to the same subject matter.
D For the purposes of any applicable Data Protection Law, this Protocol shall be deemed to constitute an arrangement between the Parties with regard to (a) the specific rights and obligations related to the processing or controlling or joint controlling of personal data; and (b) to ensure that sufficient safeguard is provided in respect of the technical and organizational security measures concerning the use of such Personal Data.
E Data Protection Laws impose on the Parties the obligation to monitor compliance with the measures set out herein.
NOW THEREFORE this Protocol shall form part of any Agreement in place between Bolder and a Client as regards the Agreement.
Definitions
Data Subject
the person to whom Personal Data relates.
Security Incident
an infringement of the technical or organizational security measures taken that may lead to a considerable chance of serious adverse consequences or that has serious adverse consequences for the protection of personal data.
Data Controller or Controller
shall have the meaning given to it under applicable Data Protection Laws and in the case where there shall be more than one Data Controller, each shall be a Joint Controller.
Client
the party with whom Bolder shall have contracted with for the provision of Services.
Data Leak
an incident resulting in unlawful destruction, loss, change, unauthorized disclosure of or access to personal data as a result of a security incident.
Data Protection Laws
means any laws or regulations that shall for the time being, be applicable to Personal Data relating to the protection of Personal Data but in particular shall include (without limitation):
(a) for the European Union, the Regulation (EU) 2016/679 of the European Parliament and of the council of 27 April 2016 on the protection of natural persons with regard to the processing of personal data and on the free movement of such data (hereinafter referred to as “the GDPR”);
(b) for the Cayman Islands the Cayman Data Protection Law 2019; (c) the British Virgin Islands, the Data Protection Act 2021; (d) for Singapore, the Personal Data Protection Act 2021; (e) for the Philippines, the Data Privacy Act 2012 and Implementing Rules and Regulations of the Data Privacy Act 2012; and (f) for Hong Kong, the Personal Data (Privacy) Ordinance (Cap. 486) as amended in 2012.
Personal Data
means any data regarding a Data Subject identified or identifiable living person, collected and processed by Bolder and for the purposes of this Protocol, the types of Personal Data may include (without limitation).
(a) Demographic data such as name, gender, date of birth, age, nationality;
(b) Contact details such as home and work phone numbers, postal addresses and email addresses;
(c) Financial data such as bank account number;
(d) Government identifiers such as passport copies, driver’s license, income tax number; and
(e) Criminal records and political associations where they are revealed by client screening.
Agreement
means the agreement Bolder shall have entered into with a Client for the provision of the Services.
Services
means the services provided by Bolder to a Client as specified in the Services Agreement and shall include (without limiting the generality thereof) fund administration and ancillary services, corporate and fiduciary services, reporting and tax services.
Subject Transmission Request
means a request by a Data Subject to have their Personal Data transferred or transmitted to a third-party Controller.
Subject Access Request
means a request by a Data Subject to obtain information about the processing of their Personal Data or to have the information rectified, erased or blocked.
Party or Parties
means any party who shall be a party to a Services Agreement.
Interpretation
For the purposes of this Protocol:
(a) capitalised words used in this Protocol without definition, shall have the meaning as otherwise set out herein or as set out in any applicable Data Protection Laws.
Article 1 — Data Processing
1. Bolder obtains Personal Data of Data Subjects for the purposes of:
• administrative processing of subscription applications;
• transfers and requests for redemptions of shares or participations;
• to enable Bolder to perform a risk assessment as prescribed by applicable anti-money laundering and anti-terrorist financing laws and regulations;
• to conduct checks and monitoring in accordance with Bolder KYC policies in force from time to time and as may be required by any applicable laws and regulations;
• to enable Bolder to carry out a classification for FATCA, CRS and other similar regulations and AEOI purposes;
• to enable Bolder to process Confidential Information in accordance with the performance of the Services;
• complying with any legal obligation to which either Party is subject; and
• to optimize the global services which Bolder is able to provide to Clients.
2. The details of the processing activities carried out on behalf of the Client by Bolder (such as the subject matter of the processing, the nature and purpose of the processing, the type of personal data and the categories of data subjects) are listed in Appendix I.
3. The Parties shall not process Personal Data in a way that is incompatible with the purposes agreed above and in the Agreement.
4. Bolder takes no responsibility for obtaining consent by the Client for the purposes of sending marketing communications including newsletters or statements.
5. As a Data Controller, the Client remains responsible together with Bolder for ensuring that all uses of the Personal Data are in compliance with the Privacy Laws.
6. Bolder guarantees that the processing of Personal Data is done with due care and only processes the Personal Data made available within the framework of the Agreement, except for deviating statutory obligations and/or with the Client’s prior permission. Bolder may decide in its sole discretion on the means of processing of Personal Data and will inform the Client if any relevant changes occur.
Article 2 — Responsibilities of the parties
1. Where the Client shall pass the Personal Data of a Data Subject to Bolder, it shall ensure that it is compliant with Data Protection Laws to the extent necessary for the processing of Personal Data, including:
a. ensuring it has obtained any necessary consents in order for Bolder to process the Personal Data in accordance with the Agreement; and
b. ensuring it has provided adequate notice as required by Data Protection Laws to the processing of the Personal Data by Bolder and if applicable the transfer of data outside the European Economic Area.
2. Where Personal Data relating to a Data Subject is collected by Bolder. we shall, at the time when Personal Data is obtained, or at least within one month after that time, provide the Data Subject with all of the following information:
• Bolder’s company information and the contact details;
• the contact details of the data protection officer, where applicable;
• the purposes of the processing for which the Personal Data is intended as well as any legal basis for the processing;
• the recipients or categories of recipients of the Personal Data, if any;
• where applicable, the fact that Bolder intends to transfer Personal Data to a third country or international organization and reference to the appropriate or suitable safeguards in place.
3. In addition to the information referred to in paragraph 2 of this Article, Bolder shall, at the time when Personal Data is obtained, provide the Data Subject with the following further information necessary to ensure fair and transparent processing:
• the period for which the Personal Data will be stored, or if that is not possible, the criteria used to determine that period;
• the existence of the right to request from Bolder access to and rectification or erasure of Personal Data or restriction of processing concerning the Data Subject or to object to processing as well as the right to data portability which is the right of a Data Subject to receive the Personal Data concerning him or her, which he or she has made available, in a structured, commonly used and machine-readable format and have it transmitted to another controller without hindrance;
• where the processing is based on consent or when it concerns specific categories of Personal Data, the existence of the right to withdraw consent at any time, without affecting the lawfulness of processing based on consent before its withdrawal;
• the right to lodge a complaint with a supervisory authority;
• whether the provision of Personal Data is a statutory or contractual requirement, or a requirement necessary to enter into a contract, as well as;
• whether the Data Subject is obliged to provide the Personal Data and of the possible consequences of failure to provide such Personal Data.
4. Where Bolder intends to further process the Personal Data for a purpose other than that for which the Personal Data was collected, Bolder shall request approval from the Client first. After approval, Bolder shall provide the Data Subject prior to that further processing, with information on that other purpose and with any relevant further information as referred to in paragraph 2 and 3 of this Article.
5. Paragraphs 2, 3 and 4 of this Article shall not apply where and insofar as the Data Subject already has the information.
6. Each Party shall, in respect of Personal Data, ensure that they have provided sufficient information to the Data Subjects in order for them to understand which of their Personal Data is being shared, the circumstances in which it will be shared, the purposes for the data sharing and the identity of with whom the Personal Data shall be shared.
Article 3 — Non-Disclosure
The Parties undertake not to disclose to third parties anything that comes to the notice of the parties or their employees about the other party’s operations and/or Personal Data made available, except for information that is known to and/or accessible to anyone, or if such is necessary or mandatory, it is:
• within the framework of the implementation of the Agreement;
• under or in compliance with legislation and regulations, including any applicable regulation or supervision of the services to be provided by Bolder;
• under a statutory obligation to disclose to a judicial authority, government authority or supervisory agency;
• under a provisionally enforceable or final and binding court decision;
• the information is public other than through a breach by a Party of the terms of the Agreement; or
• with the other Party’s written consent.
Article 4 — Security and Subprocessing
1. Bolder shall take and maintain appropriate technical and organizational measures, and if necessary, adjust these to protect the Personal Data from destruction, loss, falsification, unauthorized dissemination or unauthorized access, or any form of unlawful processing.
2. Under this Article, Bolder ensures that a duty to protect Personal Data shall be imposed on third parties to be engaged by it. Bolder assures the Client that sub-processors will be chosen with the necessary care and that the same data protection obligation as stated in this protocol and if relevant is imposed on all its sub-processors. If Bolder engages a third-party processor for carrying out specific processing activities, the obligations that shall be imposed on that processor by way of a written contract providing sufficient guarantees to implement appropriate technical and organisational measures in such manner that the processing will meet the requirements of the Data Protection Laws. A list of approved sub-processors Bolder uses or intends to use, is attached to this Agreement as Appendix II.
3. Notwithstanding the obligations under this article, Bolder may in any case engage third parties that qualify or may qualify as Processor for delivering IT solutions to the organisation. Bolder will obtain the written consent of the Client at least 14 days before engaging Processors for any task not listed in this article. Bolder will accurately inform the Client on the Processors engaged by it and any changes thereof. In case the Client has reasonable grounds to object to the use of new or more sub-processors, the Client must immediately inform Bolder of this in writing within 14 days of receipt of this notification. Bolder will, if the objection is not unreasonable, endeavor to make changes to the services available to the Client or to recommend a commercially reasonable change in the configuration of the Client or the use by the Client of the services to prevent the processing of Personal Data by the new or other sub-processor objected to, without unjustifiably burdening the Client. If Bolder cannot make this change available within a reasonable period, which period shall not exceed sixty (60) days, the Client may terminate the affected part of the Agreement, but only in respect of those services that cannot be provided by Bolder without the use of the new or other sub-processors objected to by means of written notification to Bolder.
4. If a sub-processor is located in a third country (as defined and or stated under the Data Protection Laws), at the written request of the Client and insofar as required, Bolder shall enter into a model contract (in the name of the Client). In this case, the Client instructs and authorizes Bolder to give sub-processors instructions on behalf of the Client and to use all rights of Client to the sub-processors on the basis of the model contract.
5. Bolder remains liable to the Client for compliance with the obligations of a sub-processor, in case such sub-processor does not fulfil its obligations. However, Bolder is not liable for damage and claims arising from instructions from the Client to sub-processors.
6. Where Bolder only processes Personal Data on the instructions of the Client, Bolder has the obligation to demonstrate compliance with paragraph 1 of this article and should cooperate with any reasonable audit request from the Client on 30 days notice.
Article 5 — Data retention rules
1. Bolder shall not retain or process Personal Data for longer than is necessary to carry out the agreed purposes.
2. Notwithstanding paragraph 1 of this article, the Parties shall continue to retain Personal Data in accordance with any statutory or professional retention periods applicable in their respective countries and/or industry.
Article 6 — Security incidents and data leaks
1. Bolder shall at all times during the term of the Agreement, have measures and procedures in place designed to detect Security Incidents and Data Leaks and to take relevant action, including recovery measures. Upon discovery of a Security Incident or Data Leak Bolder shall notify the Client without undue delay of Security Incidents which have resulted in a Data Leak.
Bolder shall include information in the notification regarding:
• the nature of the infringement;
• the nature of the leaked Personal Data;
• the (alleged) cause of the infringement and the (alleged) cause of the leaked Personal Data;
• a description of the infringement found and the probable consequences of the infringement for the processing of Personal Data;
• the measures recommended to limit the negative consequences of the infringement;
• the measures Bolder has taken or proposes to remedy the consequences.
2. In the event of such an infringement in connection with Personal Data, Bolder will assist with the obligation of the Client pursuant to the applicable Data Protection Laws to inform the data subjects and the Supervisory Authorities respectively, and to document the Personal Data breach. Contact details regarding the report are recorded in the customer service system. Contacts persons are specified in Appendix I attached to this Agreement.
Article 7 — Right of data subjects
1. Data Subjects have the right to obtain information about the processing of their Personal Data or to have the information rectified, erased or blocked through a Subject Access Request. Data Subjects may also request to have their Personal Data transferred or transmitted to a third-party controller through a Subject Transmission Request.
2. Where the data is to be transmitted to a third-party controller, this shall be done in a structured, commonly used and machine-readable format.
3. Bolder shall maintain a record of Subject Access Requests and Subject Transmission Requests received by Bolder, the decisions made and any information that was exchanged, transmitted or transferred.
4. The Parties agree that the responsibility for complying with a Subject Access Request or a Subject Transmission Request falls to the Party receiving the request in respect of the Personal Data held by that Party.
5. The Parties agree to provide reasonable and prompt assistance to each other as is necessary for each Party to comply with their obligations under applicable Data Privacy Laws.
Article 8 — Automated decision making
Bolder does not carry out automated profiling and will not make any decisions based on the automated processing of Personal Data without informing the Client.
Article 9 — Transfer of personal data
1. Bolder may, in the performance of the Services, transfer and provide access to Personal Data in third countries. Such transfer shall only be made to a country whose laws shall have been assessed by the European Commission to have an adequate level of protection by means of an adequacy decision and in which case the transfer shall be subject to the terms of a contract incorporating standard contractual clauses in the form adopted by the European Commission under Decision 2010/87/EU (the Model Clauses) or equivalent or replacement decision.
2. Bolder shall not transfer or provide access to Personal Data outside a country as referred to in Article 9.1 above, except with the Client’s express written permission.
Article 10 — Accountability and obligation to report
1. Following a reasonable request, Bolder shall provide the Client with the necessary information in order for the Client to be able to draw an informed opinion on Border’s compliance with its obligations set out under Data Protection Laws.
2. Where Border qualifies as a Joint Controller the Parties are responsible for any applicable reporting of the relevant processing of (personal) data to the relevant data protection authority. The Parties will cooperate in this regard until the obligations have been met.
Article 11 — Liability
All liability arising from or in connection with this protocol follows and is exclusively governed by the liability provisions set out in, or otherwise applicable to, the Agreement. Therefore, and in order to calculate liability limits and/or to determine the application of other limitations of liability, any liability arising from this protocol is deemed to arise under the relevant Agreement.
Article 12 — Duration and termination
1. This protocol shall be in force for as long as the Agreement is in force. On termination of the Agreement, the arrangement of this protocol shall end by operation of law without any further (legal) act being required.
2. Early termination of this protocol or the arrangement made by it is not possible.
3. Subject to a statutory provision resting with Border, Border shall, in the case of termination of the Agreement, and when the processing of Personal Data is no longer necessary to settle the Agreement’s termination, ensure that:
• the Personal Data is returned or provided to the Client or a successive contractor designated by the Client on a suitable information carrier;
• the Personal Data is destroyed, if the Client so requests;
• after return, provision or destruction, it immediately ceases and does not resume any processing of (the relevant) Personal Data.
4. Obligations under the Agreement including this protocol, which by their nature are intended to continue even after the end of the Agreement, continue to exist after the end of the Agreement.
Article 13 — Miscellaneous
1. In the event of conflict between the provisions in this protocol and the Agreement and/or any other agreements between the Parties, the provisions of this protocol with regard to the data protection obligations of the Parties shall prevail. In case of doubt as to whether clauses in these other agreements relate to the data protection obligations of the Parties, the arrangements of this protocol will prevail.
2. The invalidity or unenforceability of any provision in this protocol will not affect the validity or enforceability of the other provisions of this protocol. The invalid or unenforceable provision is (i) so modified so as to guarantee its validity or enforceability and at the same time the parties’ intentions are preserved as much as possible or, if not possible, (ii) interpreted as if the invalid or unenforceable part had never been included therein. The foregoing also applies if this protocol contains an omission.
3. Personal Data which Bolder processes is stored by Bolder on its servers and/ or on the servers of the cloud-based database located in Switzerland. This protocol is exclusively governed by the applicable law of the Agreement and any dispute in respect of this Agreement or execution thereof shall be submitted to the Bolder entity servicing the Client and before the competent court as defined in the Agreement.
4. Any amendment to this protocol shall be published on the Bolder website but shall not reduce or otherwise limit the rights of the Client.
APPENDIX I
Categories of data subjects
The transmitted Personal Data concern the following categories of Data Subjects:
• The investors or unit holders in the investment funds administrated by us or individuals connected with the investor or unit holders (for example directors, trustees, employees, representatives, shareholders, investors, clients, beneficial owners or agents) which includes, but is not restricted to, data such name, residential address, email address, place of birth, date of birth, bank account details and details relating to your investment activity;
• Individuals that represent the Client, that are advising the Client, that are in any contractual or statutory relationship with the Client, or that the Client has collected in view of its servicing towards such individuals, or are otherwise connected to such individuals.
Subject of processing
All processing activities (including the collection, organization and analysis of Personal Data) as are reasonably required to facilitate or support the provision of the Services described under the Agreement.
Nature and purpose of the processing
Bolder collects, processes and uses the Personal Data of the Data Subjects:
• where this is necessary for the performance of the Agreement;
• where this is necessary for compliance with a legal obligation (such as the anti-money laundering obligation to verify the identity of our customers (and, if applicable, their beneficial owners) and other applicable regulations, such as tax reporting regimes as FATCA and CRS; and/or
• where this is necessary for the purposes of the legitimate interests of us or a third party and such legitimate interests are not overridden by your interests, fundamental rights or freedom.
Kind of personal data
The Personal Data collected, processed and used by Border includes:
• names and contact information;
• general demographic information (such as gender, age, date of birth, marital status, nationality, employment details, residence, utility bills, etc.);
• personal identification documentation and related information such as passport numbers and employee identification numbers;
• 15.2 Without prejudice to the definition set out in the law and in case law, force majeure will be defined as any circumstance beyond BOLDER LAUNCH’s control that temporarily or permanently prevents fulfilment of the Agreement or Service, such as war or war risk, riots, whole or partial mobilization, strikes, lack of raw materials, a delay in the supply of goods by suppliers, unforeseen circumstances within the company, transport difficulties, import and/or export restrictions, frost, fire, epidemics, acts of God and any other unforeseen impediments that make the manufacture or transport of the goods fully or partially impossible. The provisions laid down in this article will also apply in the event that the circumstances referred to, occur in respect of plants, suppliers or other traders from which or whom BOLDER LAUNCH purchases goods or services. In the event that BOLDER LAUNCH is prevented from fulfilling the Agreement due to the force majeure referred to above, BOLDER LAUNCH will at its discretion, and without any legal intervention being required, be entitled either to suspend performance until the circumstance which constitutes force majeure has ceased to exist, or to dissolve the agreement in whole or in part by means of sending a letter by registered mail, without being obliged to pay damages.
Article 16: Confidentiality
16.1 The UBO and the Client company shall, at first request of BOLDER LAUNCH, disclose to BOLDER LAUNCH such information concerning itself and its affiliates, as BOLDER LAUNCH in its sole discretion deems necessary or appropriate for the proper performance of its duties.
16.2 BOLDER LAUNCH shall not disclose to any third party or use, without the UBO’s prior consent, any documents or information relating to the UBO or the Client or any of its affiliates and their respective business policies and practices, except to the extent that such information belongs to the public domain or BOLDER LAUNCH can show that such information may not reasonably be regarded as confidential or that disclosure is required for the performance of its duties under the Agreement or by law. The latter includes any obligation to disclose information on basis of law and/or regulatory requirements from the Dutch Central Bank.
Article 17: Covenants
17.1 The UBO and the Client company will during the term of the Agreement and after its termination fully indemnify BOLDER LAUNCH, its managing directors, officers and its employees, and hold each and any of them harmless, against any past, pending and future claims of whatever nature (none excluded), exercised by third parties, for damages, directly or indirectly, incurred as a result of the performance by BOLDER LAUNCH of its duties under the Agreement or relating to the discharge of its duty as service providers of the Client company or incurred as a result of actions or omissions of any managing director and/or holders of powers of representation (if any), unless such damages result from gross negligence of or willful misconduct by the Service Provider as evidenced by a final judgment rendered by the competent courts in the Netherlands. The indemnity granted to BOLDER LAUNCH, its managing directors, officers and its employees, includes all liabilities, damages, losses, taxes, charges, fines, costs, amounts paid in settlement, expenses and legal and other professional fees which each and any of them may at any time incur.
17.2 The UBO and the Company have disclosed to BOLDER LAUNCH all the information relating to the condition (financial or otherwise), the business, affairs, objects and actions or transactions of the Company, material for disclosure to an intending administrative service provider of the Company.
17.3 The Client company is not, and will not be engaged in offshore gambling or gaming, arms or sex related business or illegal or criminal activities as money laundering and/or tax fraud.
Article 18: Liability
BOLDER LAUNCH, its managing directors, officers and employees will not be liable towards the UBO and/or the Company, for any action or omission relating to the discharge of its duties as service provider of the Company or to the performance of the Service Provider under the Agreement other than for damages suffered by the Client company as a result of the Service Provider’s gross negligence or willful misconduct in the discharge of its duties or in the performance of its obligations under the Agreement as evidenced by a final judgment rendered by the competent courts in the Netherlands. This non-liability includes any damages incurred in connection with the use of electronic communication, multimedia or cyber facilities, as well as any other commercially available communication facility. This provision shall continue to be in force notwithstanding the termination of the Agreement.
Article 19: Notices
Except as otherwise required by Dutch law, all announcements, notices and other communications pursuant to the Agreement will be delivered to the addresses mentioned in the heading of the Agreement or such other address as one party has communicated to the other party of the Agreement.
Sending messages to BOLDER LAUNCH by any electronic means will be at the Client’s own risk. BOLDER LAUNCH will not be responsible or liable for the non-arrival, incomplete arrival or incorrect arrival of any message sent by electronic means.
Article 20: Severability
20.1 If any term or provision of the Agreement is invalid, illegal or incapable of being enforced by any law or public policy, all other terms and provisions of the Agreement shall nevertheless remain in full force and effect.
20.2 Upon such determination that any term or provision of the Agreement is invalid, illegal or incapable of being enforced, the Parties hereto shall negotiate in good faith to modify the Agreement as to affect the original intent of the Parties as closely as possible in an acceptable manner.
Article 21: Miscellaneous
21.1 The clause headings in the Agreement are inserted for reference purposes only and shall not affect the interpretation of any of the provisions of the Agreement.
21.2 The Agreement may be amended or supplemented only by an instrument in writing, dated and signed on behalf of each of the parties hereto, unless otherwise provided in these GTC or in the Agreement.
21.3 During the first year after the Agreement has been executed, the Fees will apply for the Services, as they were mentioned in the Agreement. After the first year, BOLDER LAUNCH may change the Fees at any point in time, after giving written notice to the Client at least 10 working days before the change.
21.4 The Parties agreed that Agreements contain the entire agreement between BOLDER LAUNCH and the Client and supersedes all prior agreements, arrangements, negotiations and understandings between the parties relating to the subject matter hereof.
21.5 None of the parties of the Agreement rights and obligations under the Agreement may be assigned to any third party, without the other party of the Agreement’s prior written consent, except for the right of BOLDER LAUNCH to assign to another party any claims arising under this Agreement.
21.6 Regarding the processing of personal data, please refer to the privacy statement as attached.
Article 22: Governing Law and Jurisdiction
The law governing the Agreement and these GTC, including the question of its validity, shall be the Dutch law and any litigation relating thereto shall be subject to the jurisdiction of the Dutch Courts.
ANNEX TO THE GENERAL TERMS AND CONDITIONS OF BOLDER BUSINESS SERVICES (NETHERLANDS) B.V.
Data Protection Protocol
PREAMBLE
A This Data Protection Protocol (Protocol) sets out how the Bolder Group and its subsidiaries and affiliates (in this Data Protection Protocol referred to as Bolder, we, us or our) protect the confidentiality of the Personal Data which we collect, hold, use and disclose, for and on behalf of Clients.
B This Protocol is applicable where we process and/ or control Personal Data and where our clients are a (joint) Controller. It sets out the security practices and technical and organizational measures that we have implemented to ensure the security and confidentiality of the Personal Data.
C This Protocol shall form an integral part of the agreement for Services entered into between Bolder and the Client (the Agreement) insofar as and to the extent that such Agreement shall provide for the protection and confidentiality of Personal Data and where applicable, this Protocol shall replace any and all other provision made in such Agreement, as it relates to the same subject matter.
D For the purposes of any applicable Data Protection Law, this Protocol shall be deemed to constitute an arrangement between the Parties with regard to (a) the specific rights and obligations related to the processing or controlling or joint controlling of personal data; and (b) to ensure that sufficient safeguard is provided in respect of the technical and organizational security measures concerning the use of such Personal Data.
E Data Protection Laws impose on the Parties the obligation to monitor compliance with the measures set out herein.
NOW THEREFORE this Protocol shall form part of any Agreement in place between Bolder and a Client as regards the Agreement.
Definitions
Data Subject
the person to whom Personal Data relates.
Security Incident
an infringement of the technical or organizational security measures taken that may lead to a considerable chance of serious adverse consequences or that has serious adverse consequences for the protection of personal data.
Data Controller or Controller
shall have the meaning given to it under applicable Data Protection Laws and in the case where there shall be more than one Data Controller, each shall be a Joint Controller.
Client
the party with whom Bolder shall have contracted with for the provision of Services.
Data Leak
an incident resulting in unlawful destruction, loss, change, unauthorized disclosure of or access to personal data as a result of a security incident.
Data Protection Laws
means any laws or regulations that shall for the time being, be applicable to Personal Data relating to the protection of Personal Data but in particular shall include (without limitation):
(a) for the European Union, the Regulation (EU) 2016/679 of the European Parliament and of the council of 27 April 2016 on the protection of natural persons with regard to the processing of personal data and on the free movement of such data (hereinafter referred to as “the GDPR”);
(b) for the Cayman Islands the Cayman Data Protection Law 2019; (c) the British Virgin Islands, the Data Protection Act 2021; (d) for Singapore, the Personal Data Protection Act 2021; (e) for the Philippines, the Data Privacy Act 2012 and Implementing Rules and Regulations of the Data Privacy Act 2012; and (f) for Hong Kong, the Personal Data (Privacy) Ordinance (Cap. 486) as amended in 2012.
Personal Data
means any data regarding a Data Subject identified or identifiable living person, collected and processed by Bolder and for the purposes of this Protocol, the types of Personal Data may include (without limitation).
(a) Demographic data such as name, gender, date of birth, age, nationality;
(b) Contact details such as home and work phone numbers, postal addresses and email addresses;
(c) Financial data such as bank account number;
(d) Government identifiers such as passport copies, driver’s license, income tax number; and
(e) Criminal records and political associations where they are revealed by client screening.
Agreement
means the agreement Bolder shall have entered into with a Client for the provision of the Services.
Services
means the services provided by Bolder to a Client as specified in the Services Agreement and shall include (without limiting the generality thereof) fund administration and ancillary services, corporate and fiduciary services, reporting and tax services.
Subject Transmission Request
means a request by a Data Subject to have their Personal Data transferred or transmitted to a third-party Controller.
Subject Access Request
means a request by a Data Subject to obtain information about the processing of their Personal Data or to have the information rectified, erased or blocked.
Party or Parties
means any party who shall be a party to a Services Agreement.
Interpretation
For the purposes of this Protocol:
(a) capitalised words used in this Protocol without definition, shall have the meaning as otherwise set out herein or as set out in any applicable Data Protection Laws.
Article 1 — Data Processing
1. Bolder obtains Personal Data of Data Subjects for the purposes of:
• administrative processing of subscription applications;
• transfers and requests for redemptions of shares or participations;
• to enable Bolder to perform a risk assessment as prescribed by applicable anti-money laundering and anti-terrorist financing laws and regulations;
• to conduct checks and monitoring in accordance with Bolder KYC policies in force from time to time and as may be required by any applicable laws and regulations;
• to enable Bolder to carry out a classification for FATCA, CRS and other similar regulations and AEOI purposes;
• to enable Bolder to process Confidential Information in accordance with the performance of the Services;
• complying with any legal obligation to which either Party is subject; and
• to optimize the global services which Bolder is able to provide to Clients.
2. The details of the processing activities carried out on behalf of the Client by Bolder (such as the subject matter of the processing, the nature and purpose of the processing, the type of personal data and the categories of data subjects) are listed in Appendix I.
3. The Parties shall not process Personal Data in a way that is incompatible with the purposes agreed above and in the Agreement.
4. Bolder takes no responsibility for obtaining consent by the Client for the purposes of sending marketing communications including newsletters or statements.
5. As a Data Controller, the Client remains responsible together with Bolder for ensuring that all uses of the Personal Data are in compliance with the Privacy Laws.
6. Bolder guarantees that the processing of Personal Data is done with due care and only processes the Personal Data made available within the framework of the Agreement, except for deviating statutory obligations and/or with the Client’s prior permission. Bolder may decide in its sole discretion on the means of processing of Personal Data and will inform the Client if any relevant changes occur.
Article 2 — Responsibilities of the parties
1. Where the Client shall pass the Personal Data of a Data Subject to Bolder, it shall ensure that it is compliant with Data Protection Laws to the extent necessary for the processing of Personal Data, including:
a. ensuring it has obtained any necessary consents in order for Bolder to process the Personal Data in accordance with the Agreement; and
b. ensuring it has provided adequate notice as required by Data Protection Laws to the processing of the Personal Data by Bolder and if applicable the transfer of data outside the European Economic Area.
2. Where Personal Data relating to a Data Subject is collected by Bolder. we shall, at the time when Personal Data is obtained, or at least within one month after that time, provide the Data Subject with all of the following information:
• Bolder’s company information and the contact details;
• the contact details of the data protection officer, where applicable;
• the purposes of the processing for which the Personal Data is intended as well as any legal basis for the processing;
• the recipients or categories of recipients of the Personal Data, if any;
• where applicable, the fact that Bolder intends to transfer Personal Data to a third country or international organization and reference to the appropriate or suitable safeguards in place.
3. In addition to the information referred to in paragraph 2 of this Article, Bolder shall, at the time when Personal Data is obtained, provide the Data Subject with the following further information necessary to ensure fair and transparent processing:
• the period for which the Personal Data will be stored, or if that is not possible, the criteria used to determine that period;
• the existence of the right to request from Bolder access to and rectification or erasure of Personal Data or restriction of processing concerning the Data Subject or to object to processing as well as the right to data portability which is the right of a Data Subject to receive the Personal Data concerning him or her, which he or she has made available, in a structured, commonly used and machine-readable format and have it transmitted to another controller without hindrance;
• where the processing is based on consent or when it concerns specific categories of Personal Data, the existence of the right to withdraw consent at any time, without affecting the lawfulness of processing based on consent before its withdrawal;
• the right to lodge a complaint with a supervisory authority;
• whether the provision of Personal Data is a statutory or contractual requirement, or a requirement necessary to enter into a contract, as well as;
• whether the Data Subject is obliged to provide the Personal Data and of the possible consequences of failure to provide such Personal Data.
4. Where Bolder intends to further process the Personal Data for a purpose other than that for which the Personal Data was collected, Bolder shall request approval from the Client first. After approval, Bolder shall provide the Data Subject prior to that further processing, with information on that other purpose and with any relevant further information as referred to in paragraph 2 and 3 of this Article.
5. Paragraphs 2, 3 and 4 of this Article shall not apply where and insofar as the Data Subject already has the information.
6. Each Party shall, in respect of Personal Data, ensure that they have provided sufficient information to the Data Subjects in order for them to understand which of their Personal Data is being shared, the circumstances in which it will be shared, the purposes for the data sharing and the identity of with whom the Personal Data shall be shared.
Article 3 — Non-Disclosure
The Parties undertake not to disclose to third parties anything that comes to the notice of the parties or their employees about the other party’s operations and/or Personal Data made available, except for information that is known to and/or accessible to anyone, or if such is necessary or mandatory, it is:
• within the framework of the implementation of the Agreement;
• under or in compliance with legislation and regulations, including any applicable regulation or supervision of the services to be provided by Bolder;
• under a statutory obligation to disclose to a judicial authority, government authority or supervisory agency;
• under a provisionally enforceable or final and binding court decision;
• the information is public other than through a breach by a Party of the terms of the Agreement; or
• with the other Party’s written consent.
Article 4 — Security and Subprocessing
1. Bolder shall take and maintain appropriate technical and organizational measures, and if necessary, adjust these to protect the Personal Data from destruction, loss, falsification, unauthorized dissemination or unauthorized access, or any form of unlawful processing.
2. Under this Article, Bolder ensures that a duty to protect Personal Data shall be imposed on third parties to be engaged by it. Bolder assures the Client that sub-processors will be chosen with the necessary care and that the same data protection obligation as stated in this protocol and if relevant is imposed on all its sub-processors. If Bolder engages a third-party processor for carrying out specific processing activities, the obligations that shall be imposed on that processor by way of a written contract providing sufficient guarantees to implement appropriate technical and organisational measures in such manner that the processing will meet the requirements of the Data Protection Laws. A list of approved sub-processors Bolder uses or intends to use, is attached to this Agreement as Appendix II.
3. Notwithstanding the obligations under this article, Bolder may in any case engage third parties that qualify or may qualify as Processor for delivering IT solutions to the organisation. Bolder will obtain the written consent of the Client at least 14 days before engaging Processors for any task not listed in this article. Bolder will accurately inform the Client on the Processors engaged by it and any changes thereof. In case the Client has reasonable grounds to object to the use of new or more sub-processors, the Client must immediately inform Bolder of this in writing within 14 days of receipt of this notification. Bolder will, if the objection is not unreasonable, endeavor to make changes to the services available to the Client or to recommend a commercially reasonable change in the configuration of the Client or the use by the Client of the services to prevent the processing of Personal Data by the new or other sub-processor objected to, without unjustifiably burdening the Client. If Bolder cannot make this change available within a reasonable period, which period shall not exceed sixty (60) days, the Client may terminate the affected part of the Agreement, but only in respect of those services that cannot be provided by Bolder without the use of the new or other sub-processors objected to by means of written notification to Bolder.
4. If a sub-processor is located in a third country (as defined and or stated under the Data Protection Laws), at the written request of the Client and insofar as required, Bolder shall enter into a model contract (in the name of the Client). In this case, the Client instructs and authorizes Bolder to give sub-processors instructions on behalf of the Client and to use all rights of Client to the sub-processors on the basis of the model contract.
5. Bolder remains liable to the Client for compliance with the obligations of a sub-processor, in case such sub-processor does not fulfil its obligations. However, Bolder is not liable for damage and claims arising from instructions from the Client to sub-processors.
6. Where Bolder only processes Personal Data on the instructions of the Client, Bolder has the obligation to demonstrate compliance with paragraph 1 of this article and should cooperate with any reasonable audit request from the Client on 30 days notice.
Article 5 — Data retention rules
1. Bolder shall not retain or process Personal Data for longer than is necessary to carry out the agreed purposes.
2. Notwithstanding paragraph 1 of this article, the Parties shall continue to retain Personal Data in accordance with any statutory or professional retention periods applicable in their respective countries and/or industry.
Article 6 — Security incidents and data leaks
1. Bolder shall at all times during the term of the Agreement, have measures and procedures in place designed to detect Security Incidents and Data Leaks and to take relevant action, including recovery measures. Upon discovery of a Security Incident or Data Leak Bolder shall notify the Client without undue delay of Security Incidents which have resulted in a Data Leak.
Bolder shall include information in the notification regarding:
• the nature of the infringement;
• the nature of the leaked Personal Data;
• the (alleged) cause of the infringement and the (alleged) cause of the leaked Personal Data;
• a description of the infringement found and the probable consequences of the infringement for the processing of Personal Data;
• the measures recommended to limit the negative consequences of the infringement;
• the measures Bolder has taken or proposes to remedy the consequences.
2. In the event of such an infringement in connection with Personal Data, Bolder will assist with the obligation of the Client pursuant to the applicable Data Protection Laws to inform the data subjects and the Supervisory Authorities respectively, and to document the Personal Data breach. Contact details regarding the report are recorded in the customer service system. Contacts persons are specified in Appendix I attached to this Agreement.
Article 7 — Right of data subjects
1. Data Subjects have the right to obtain information about the processing of their Personal Data or to have the information rectified, erased or blocked through a Subject Access Request. Data Subjects may also request to have their Personal Data transferred or transmitted to a third-party controller through a Subject Transmission Request.
2. Where the data is to be transmitted to a third-party controller, this shall be done in a structured, commonly used and machine-readable format.
3. Bolder shall maintain a record of Subject Access Requests and Subject Transmission Requests received by Bolder, the decisions made and any information that was exchanged, transmitted or transferred.
4. The Parties agree that the responsibility for complying with a Subject Access Request or a Subject Transmission Request falls to the Party receiving the request in respect of the Personal Data held by that Party.
5. The Parties agree to provide reasonable and prompt assistance to each other as is necessary for each Party to comply with their obligations under applicable Data Privacy Laws.
Article 8 — Automated decision making
Bolder does not carry out automated profiling and will not make any decisions based on the automated processing of Personal Data without informing the Client.
Article 9 — Transfer of personal data
1. Bolder may, in the performance of the Services, transfer and provide access to Personal Data in third countries. Such transfer shall only be made to a country whose laws shall have been assessed by the European Commission to have an adequate level of protection by means of an adequacy decision and in which case the transfer shall be subject to the terms of a contract incorporating standard contractual clauses in the form adopted by the European Commission under Decision 2010/87/EU (the Model Clauses) or equivalent or replacement decision.
2. Bolder shall not transfer or provide access to Personal Data outside a country as referred to in Article 9.1 above, except with the Client’s express written permission.
Article 10 — Accountability and obligation to report
1. Following a reasonable request, Bolder shall provide the Client with the necessary information in order for the Client to be able to draw an informed opinion on Border’s compliance with its obligations set out under Data Protection Laws.
2. Where Border qualifies as a Joint Controller the Parties are responsible for any applicable reporting of the relevant processing of (personal) data to the relevant data protection authority. The Parties will cooperate in this regard until the obligations have been met.
Article 11 — Liability
All liability arising from or in connection with this protocol follows and is exclusively governed by the liability provisions set out in, or otherwise applicable to, the Agreement. Therefore, and in order to calculate liability limits and/or to determine the application of other limitations of liability, any liability arising from this protocol is deemed to arise under the relevant Agreement.
Article 12 — Duration and termination
1. This protocol shall be in force for as long as the Agreement is in force. On termination of the Agreement, the arrangement of this protocol shall end by operation of law without any further (legal) act being required.
2. Early termination of this protocol or the arrangement made by it is not possible.
3. Subject to a statutory provision resting with Border, Border shall, in the case of termination of the Agreement, and when the processing of Personal Data is no longer necessary to settle the Agreement’s termination, ensure that:
• the Personal Data is returned or provided to the Client or a successive contractor designated by the Client on a suitable information carrier;
• the Personal Data is destroyed, if the Client so requests;
• after return, provision or destruction, it immediately ceases and does not resume any processing of (the relevant) Personal Data.
4. Obligations under the Agreement including this protocol, which by their nature are intended to continue even after the end of the Agreement, continue to exist after the end of the Agreement.
Article 13 — Miscellaneous
1. In the event of conflict between the provisions in this protocol and the Agreement and/or any other agreements between the Parties, the provisions of this protocol with regard to the data protection obligations of the Parties shall prevail. In case of doubt as to whether clauses in these other agreements relate to the data protection obligations of the Parties, the arrangements of this protocol will prevail.
2. The invalidity or unenforceability of any provision in this protocol will not affect the validity or enforceability of the other provisions of this protocol. The invalid or unenforceable provision is (i) so modified so as to guarantee its validity or enforceability and at the same time the parties’ intentions are preserved as much as possible or, if not possible, (ii) interpreted as if the invalid or unenforceable part had never been included therein. The foregoing also applies if this protocol contains an omission.
3. Personal Data which Bolder processes is stored by Bolder on its servers and/ or on the servers of the cloud-based database located in Switzerland. This protocol is exclusively governed by the applicable law of the Agreement and any dispute in respect of this Agreement or execution thereof shall be submitted to the Bolder entity servicing the Client and before the competent court as defined in the Agreement.
4. Any amendment to this protocol shall be published on the Bolder website but shall not reduce or otherwise limit the rights of the Client.
APPENDIX I
Categories of data subjects
The transmitted Personal Data concern the following categories of Data Subjects:
• The investors or unit holders in the investment funds administrated by us or individuals connected with the investor or unit holders (for example directors, trustees, employees, representatives, shareholders, investors, clients, beneficial owners or agents) which includes, but is not restricted to, data such name, residential address, email address, place of birth, date of birth, bank account details and details relating to your investment activity;
• Individuals that represent the Client, that are advising the Client, that are in any contractual or statutory relationship with the Client, or that the Client has collected in view of its servicing towards such individuals, or are otherwise connected to such individuals.
Subject of processing
All processing activities (including the collection, organization and analysis of Personal Data) as are reasonably required to facilitate or support the provision of the Services described under the Agreement.
Nature and purpose of the processing
Bolder collects, processes and uses the Personal Data of the Data Subjects:
• where this is necessary for the performance of the Agreement;
• where this is necessary for compliance with a legal obligation (such as the anti-money laundering obligation to verify the identity of our customers (and, if applicable, their beneficial owners) and other applicable regulations, such as tax reporting regimes as FATCA and CRS; and/or
• where this is necessary for the purposes of the legitimate interests of us or a third party and such legitimate interests are not overridden by your interests, fundamental rights or freedom.
Kind of personal data
The Personal Data collected, processed and used by Border includes:
• names and contact information;
• general demographic information (such as gender, age, date of birth, marital status, nationality, employment details, residence, utility bills, etc.);
• personal identification documentation and related information such as passport numbers and employee identification numbers;
•
15.2 Without prejudice to the definition set out in the law and in case law, force majeure will be defined as any circumstance beyond BOLDER LAUNCH’s control that temporarily or permanently prevents fulfilment of the Agreement or Service, such as war or war risk, riots, whole or partial mobilization, strikes, lack of raw materials, a delay in the supply of goods by suppliers, unforeseen circumstances within the company, transport difficulties, import and/or export restrictions, frost, fire, epidemics, acts of God and any other unforeseen impediments that make the manufacture or transport of the goods fully or partially impossible. The provisions laid down in this article will also apply in the event that the circumstances referred to, occur in respect of plants, suppliers or other traders from which or whom BOLDER LAUNCH purchases goods or services. In the event that BOLDER LAUNCH is prevented from fulfilling the Agreement due to the force majeure referred to above, BOLDER LAUNCH will at its discretion, and without any legal intervention being required, be entitled either to suspend performance until the circumstance which constitutes force majeure has ceased to exist, or to dissolve the agreement in whole or in part by means of sending a letter by registered mail, without being obliged to pay damages.
Article 16: Confidentiality
16.1 The UBO and the Client company shall, at first request of BOLDER LAUNCH, disclose to BOLDER LAUNCH such information concerning itself and its affiliates, as BOLDER LAUNCH in its sole discretion deems necessary or appropriate for the proper performance of its duties.
16.2 BOLDER LAUNCH shall not disclose to any third party or use, without the UBO’s prior consent, any documents or information relating to the UBO or the Client or any of its affiliates and their respective business policies and practices, except to the extent that such information belongs to the public domain or BOLDER LAUNCH can show that such information may not reasonably be regarded as confidential or that disclosure is required for the performance of its duties under the Agreement or by law. The latter includes any obligation to disclose information on basis of law and/or regulatory requirements from the Dutch Central Bank.
Article 17: Covenants
17.1 The UBO and the Client company will during the term of the Agreement and after its termination fully indemnify BOLDER LAUNCH, its managing directors, officers and its employees, and hold each and any of them harmless, against any past, pending and future claims of whatever nature (none excluded), exercised by third parties, for damages, directly or indirectly, incurred as a result of the performance by BOLDER LAUNCH of its duties under the Agreement or relating to the discharge of its duty as service providers of the Client company or incurred as a result of actions or omissions of any managing director and/or holders of powers of representation (if any), unless such damages result from gross negligence of or willful misconduct by the Service Provider as evidenced by a final judgment rendered by the competent courts in the Netherlands. The indemnity granted to BOLDER LAUNCH, its managing directors, officers and its employees, includes all liabilities, damages, losses, taxes, charges, fines, costs, amounts paid in settlement, expenses and legal and other professional fees which each and any of them may at any time incur.
17.2 The UBO and the Company have disclosed to BOLDER LAUNCH all the information relating to the condition (financial or otherwise), the business, affairs, objects and actions or transactions of the Company, material for disclosure to an intending administrative service provider of the Company.
17.3 The Client company is not, and will not be engaged in offshore gambling or gaming, arms or sex related business or illegal or criminal activities as money laundering and/or tax fraud.
Article 18: Liability
BOLDER LAUNCH, its managing directors, officers and employees will not be liable towards the UBO and/or the Company, for any action or omission relating to the discharge of its duties as service provider of the Company or to the performance of the Service Provider under the Agreement other than for damages suffered by the Client company as a result of the Service Provider’s gross negligence or willful misconduct in the discharge of its duties or in the performance of its obligations under the Agreement as evidenced by a final judgment rendered by the competent courts in the Netherlands. This non-liability includes any damages incurred in connection with the use of electronic communication, multimedia or cyber facilities, as well as any other commercially available communication facility. This provision shall continue to be in force notwithstanding the termination of the Agreement.
Article 19: Notices
Except as otherwise required by Dutch law, all announcements, notices and other communications pursuant to the Agreement will be delivered to the addresses mentioned in the heading of the Agreement or such other address as one party has communicated to the other party of the Agreement.
Sending messages to BOLDER LAUNCH by any electronic means will be at the Client’s own risk. BOLDER LAUNCH will not be responsible or liable for the non-arrival, incomplete arrival or incorrect arrival of any message sent by electronic means.
Article 20: Severability
20.1 If any term or provision of the Agreement is invalid, illegal or incapable of being enforced by any law or public policy, all other terms and provisions of the Agreement shall nevertheless remain in full force and effect.
20.2 Upon such determination that any term or provision of the Agreement is invalid, illegal or incapable of being enforced, the Parties hereto shall negotiate in good faith to modify the Agreement as to affect the original intent of the Parties as closely as possible in an acceptable manner.
Article 21: Miscellaneous
21.1 The clause headings in the Agreement are inserted for reference purposes only and shall not affect the interpretation of any of the provisions of the Agreement.
21.2 The Agreement may be amended or supplemented only by an instrument in writing, dated and signed on behalf of each of the parties hereto, unless otherwise provided in these GTC or in the Agreement.
21.3 During the first year after the Agreement has been executed, the Fees will apply for the Services, as they were mentioned in the Agreement. After the first year, BOLDER LAUNCH may change the Fees at any point in time, after giving written notice to the Client at least 10 working days before the change.
21.4 The Parties agreed that Agreements contain the entire agreement between BOLDER LAUNCH and the Client and supersedes all prior agreements, arrangements, negotiations and understandings between the parties relating to the subject matter hereof.
21.5 None of the parties of the Agreement rights and obligations under the Agreement may be assigned to any third party, without the other party of the Agreement’s prior written consent, except for the right of BOLDER LAUNCH to assign to another party any claims arising under this Agreement.
21.6 Regarding the processing of personal data, please refer to the privacy statement as attached.
Article 22: Governing Law and Jurisdiction
The law governing the Agreement and these GTC, including the question of its validity, shall be the Dutch law and any litigation relating thereto shall be subject to the jurisdiction of the Dutch Courts.
ANNEX TO THE GENERAL TERMS AND CONDITIONS OF BOLDER BUSINESS SERVICES (NETHERLANDS) B.V.
Data Protection Protocol
PREAMBLE
A This Data Protection Protocol (Protocol) sets out how the Bolder Group and its subsidiaries and affiliates (in this Data Protection Protocol referred to as Bolder, we, us or our) protect the confidentiality of the Personal Data which we collect, hold, use and disclose, for and on behalf of Clients.
B This Protocol is applicable where we process and/ or control Personal Data and where our clients are a (joint) Controller. It sets out the security practices and technical and organizational measures that we have implemented to ensure the security and confidentiality of the Personal Data.
C This Protocol shall form an integral part of the agreement for Services entered into between Bolder and the Client (the Agreement) insofar as and to the extent that such Agreement shall provide for the protection and confidentiality of Personal Data and where applicable, this Protocol shall replace any and all other provision made in such Agreement, as it relates to the same subject matter.
D For the purposes of any applicable Data Protection Law, this Protocol shall be deemed to constitute an arrangement between the Parties with regard to (a) the specific rights and obligations related to the processing or controlling or joint controlling of personal data; and (b) to ensure that sufficient safeguard is provided in respect of the technical and organizational security measures concerning the use of such Personal Data.
E Data Protection Laws impose on the Parties the obligation to monitor compliance with the measures set out herein.
NOW THEREFORE this Protocol shall form part of any Agreement in place between Bolder and a Client as regards the Agreement.
Definitions
Data Subject
the person to whom Personal Data relates.
Security Incident
an infringement of the technical or organizational security measures taken that may lead to a considerable chance of serious adverse consequences or that has serious adverse consequences for the protection of personal data.
Data Controller or Controller
shall have the meaning given to it under applicable Data Protection Laws and in the case where there shall be more than one Data Controller, each shall be a Joint Controller.
Client
the party with whom Bolder shall have contracted with for the provision of Services.
Data Leak
an incident resulting in unlawful destruction, loss, change, unauthorized disclosure of or access to personal data as a result of a security incident.
Data Protection Laws
means any laws or regulations that shall for the time being, be applicable to Personal Data relating to the protection of Personal Data but in particular shall include (without limitation):
(a) for the European Union, the Regulation (EU) 2016/679 of the European Parliament and of the council of 27 April 2016 on the protection of natural persons with regard to the processing of personal data and on the free movement of such data (hereinafter referred to as “the GDPR”);
(b) for the Cayman Islands the Cayman Data Protection Law 2019; (c) the British Virgin Islands, the Data Protection Act 2021; (d) for Singapore, the Personal Data Protection Act 2021; (e) for the Philippines, the Data Privacy Act 2012 and Implementing Rules and Regulations of the Data Privacy Act 2012; and (f) for Hong Kong, the Personal Data (Privacy) Ordinance (Cap. 486) as amended in 2012.
Personal Data
means any data regarding a Data Subject identified or identifiable living person, collected and processed by Bolder and for the purposes of this Protocol, the types of Personal Data may include (without limitation).
(a) Demographic data such as name, gender, date of birth, age, nationality;
(b) Contact details such as home and work phone numbers, postal addresses and email addresses;
(c) Financial data such as bank account number;
(d) Government identifiers such as passport copies, driver’s license, income tax number; and
(e) Criminal records and political associations where they are revealed by client screening.
Agreement
means the agreement Bolder shall have entered into with a Client for the provision of the Services.
Services
means the services provided by Bolder to a Client as specified in the Services Agreement and shall include (without limiting the generality thereof) fund administration and ancillary services, corporate and fiduciary services, reporting and tax services.
Subject Transmission Request
means a request by a Data Subject to have their Personal Data transferred or transmitted to a third-party Controller.
Subject Access Request
means a request by a Data Subject to obtain information about the processing of their Personal Data or to have the information rectified, erased or blocked.
Party or Parties
means any party who shall be a party to a Services Agreement.
Interpretation
For the purposes of this Protocol:
(a) capitalised words used in this Protocol without definition, shall have the meaning as otherwise set out herein or as set out in any applicable Data Protection Laws.
Article 1 — Data Processing
1. Bolder obtains Personal Data of Data Subjects for the purposes of:
• administrative processing of subscription applications;
• transfers and requests for redemptions of shares or participations;
• to enable Bolder to perform a risk assessment as prescribed by applicable anti-money laundering and anti-terrorist financing laws and regulations;
• to conduct checks and monitoring in accordance with Bolder KYC policies in force from time to time and as may be required by any applicable laws and regulations;
• to enable Bolder to carry out a classification for FATCA, CRS and other similar regulations and AEOI purposes;
• to enable Bolder to process Confidential Information in accordance with the performance of the Services;
• complying with any legal obligation to which either Party is subject; and
• to optimize the global services which Bolder is able to provide to Clients.
2. The details of the processing activities carried out on behalf of the Client by Bolder (such as the subject matter of the processing, the nature and purpose of the processing, the type of personal data and the categories of data subjects) are listed in Appendix I.
3. The Parties shall not process Personal Data in a way that is incompatible with the purposes agreed above and in the Agreement.
4. Bolder takes no responsibility for obtaining consent by the Client for the purposes of sending marketing communications including newsletters or statements.
5. As a Data Controller, the Client remains responsible together with Bolder for ensuring that all uses of the Personal Data are in compliance with the Privacy Laws.
6. Bolder guarantees that the processing of Personal Data is done with due care and only processes the Personal Data made available within the framework of the Agreement, except for deviating statutory obligations and/or with the Client’s prior permission. Bolder may decide in its sole discretion on the means of processing of Personal Data and will inform the Client if any relevant changes occur.
Article 2 — Responsibilities of the parties
1. Where the Client shall pass the Personal Data of a Data Subject to Bolder, it shall ensure that it is compliant with Data Protection Laws to the extent necessary for the processing of Personal Data, including:
a. ensuring it has obtained any necessary consents in order for Bolder to process the Personal Data in accordance with the Agreement; and
b. ensuring it has provided adequate notice as required by Data Protection Laws to the processing of the Personal Data by Bolder and if applicable the transfer of data outside the European Economic Area.
2. Where Personal Data relating to a Data Subject is collected by Bolder. we shall, at the time when Personal Data is obtained, or at least within one month after that time, provide the Data Subject with all of the following information:
• Bolder’s company information and the contact details;
• the contact details of the data protection officer, where applicable;
• the purposes of the processing for which the Personal Data is intended as well as any legal basis for the processing;
• the recipients or categories of recipients of the Personal Data, if any;
• where applicable, the fact that Bolder intends to transfer Personal Data to a third country or international organization and reference to the appropriate or suitable safeguards in place.
3. In addition to the information referred to in paragraph 2 of this Article, Bolder shall, at the time when Personal Data is obtained, provide the Data Subject with the following further information necessary to ensure fair and transparent processing:
• the period for which the Personal Data will be stored, or if that is not possible, the criteria used to determine that period;
• the existence of the right to request from Bolder access to and rectification or erasure of Personal Data or restriction of processing concerning the Data Subject or to object to processing as well as the right to data portability which is the right of a Data Subject to receive the Personal Data concerning him or her, which he or she has made available, in a structured, commonly used and machine-readable format and have it transmitted to another controller without hindrance;
• where the processing is based on consent or when it concerns specific categories of Personal Data, the existence of the right to withdraw consent at any time, without affecting the lawfulness of processing based on consent before its withdrawal;
• the right to lodge a complaint with a supervisory authority;
• whether the provision of Personal Data is a statutory or contractual requirement, or a requirement necessary to enter into a contract, as well as;
• whether the Data Subject is obliged to provide the Personal Data and of the possible consequences of failure to provide such Personal Data.
4. Where Bolder intends to further process the Personal Data for a purpose other than that for which the Personal Data was collected, Bolder shall request approval from the Client first. After approval, Bolder shall provide the Data Subject prior to that further processing, with information on that other purpose and with any relevant further information as referred to in paragraph 2 and 3 of this Article.
5. Paragraphs 2, 3 and 4 of this Article shall not apply where and insofar as the Data Subject already has the information.
6. Each Party shall, in respect of Personal Data, ensure that they have provided sufficient information to the Data Subjects in order for them to understand which of their Personal Data is being shared, the circumstances in which it will be shared, the purposes for the data sharing and the identity of with whom the Personal Data shall be shared.
Article 3 — Non-Disclosure
The Parties undertake not to disclose to third parties anything that comes to the notice of the parties or their employees about the other party’s operations and/or Personal Data made available, except for information that is known to and/or accessible to anyone, or if such is necessary or mandatory, it is:
• within the framework of the implementation of the Agreement;
• under or in compliance with legislation and regulations, including any applicable regulation or supervision of the services to be provided by Bolder;
• under a statutory obligation to disclose to a judicial authority, government authority or supervisory agency;
• under a provisionally enforceable or final and binding court decision;
• the information is public other than through a breach by a Party of the terms of the Agreement; or
• with the other Party’s written consent.
Article 4 — Security and Subprocessing
1. Bolder shall take and maintain appropriate technical and organizational measures, and if necessary, adjust these to protect the Personal Data from destruction, loss, falsification, unauthorized dissemination or unauthorized access, or any form of unlawful processing.
2. Under this Article, Bolder ensures that a duty to protect Personal Data shall be imposed on third parties to be engaged by it. Bolder assures the Client that sub-processors will be chosen with the necessary care and that the same data protection obligation as stated in this protocol and if relevant is imposed on all its sub-processors. If Bolder engages a third-party processor for carrying out specific processing activities, the obligations that shall be imposed on that processor by way of a written contract providing sufficient guarantees to implement appropriate technical and organisational measures in such manner that the processing will meet the requirements of the Data Protection Laws. A list of approved sub-processors Bolder uses or intends to use, is attached to this Agreement as Appendix II.
3. Notwithstanding the obligations under this article, Bolder may in any case engage third parties that qualify or may qualify as Processor for delivering IT solutions to the organisation. Bolder will obtain the written consent of the Client at least 14 days before engaging Processors for any task not listed in this article. Bolder will accurately inform the Client on the Processors engaged by it and any changes thereof. In case the Client has reasonable grounds to object to the use of new or more sub-processors, the Client must immediately inform Bolder of this in writing within 14 days of receipt of this notification. Bolder will, if the objection is not unreasonable, endeavor to make changes to the services available to the Client or to recommend a commercially reasonable change in the configuration of the Client or the use by the Client of the services to prevent the processing of Personal Data by the new or other sub-processor objected to, without unjustifiably burdening the Client. If Bolder cannot make this change available within a reasonable period, which period shall not exceed sixty (60) days, the Client may terminate the affected part of the Agreement, but only in respect of those services that cannot be provided by Bolder without the use of the new or other sub-processors objected to by means of written notification to Bolder.
4. If a sub-processor is located in a third country (as defined and or stated under the Data Protection Laws), at the written request of the Client and insofar as required, Bolder shall enter into a model contract (in the name of the Client). In this case, the Client instructs and authorizes Bolder to give sub-processors instructions on behalf of the Client and to use all rights of Client to the sub-processors on the basis of the model contract.
5. Bolder remains liable to the Client for compliance with the obligations of a sub-processor, in case such sub-processor does not fulfil its obligations. However, Bolder is not liable for damage and claims arising from instructions from the Client to sub-processors.
6. Where Bolder only processes Personal Data on the instructions of the Client, Bolder has the obligation to demonstrate compliance with paragraph 1 of this article and should cooperate with any reasonable audit request from the Client on 30 days notice.
Article 5 — Data retention rules
1. Bolder shall not retain or process Personal Data for longer than is necessary to carry out the agreed purposes.
2. Notwithstanding paragraph 1 of this article, the Parties shall continue to retain Personal Data in accordance with any statutory or professional retention periods applicable in their respective countries and/or industry.
Article 6 — Security incidents and data leaks
1. Bolder shall at all times during the term of the Agreement, have measures and procedures in place designed to detect Security Incidents and Data Leaks and to take relevant action, including recovery measures. Upon discovery of a Security Incident or Data Leak Bolder shall notify the Client without undue delay of Security Incidents which have resulted in a Data Leak.
Bolder shall include information in the notification regarding:
• the nature of the infringement;
• the nature of the leaked Personal Data;
• the (alleged) cause of the infringement and the (alleged) cause of the leaked Personal Data;
• a description of the infringement found and the probable consequences of the infringement for the processing of Personal Data;
• the measures recommended to limit the negative consequences of the infringement;
• the measures Bolder has taken or proposes to remedy the consequences.
2. In the event of such an infringement in connection with Personal Data, Bolder will assist with the obligation of the Client pursuant to the applicable Data Protection Laws to inform the data subjects and the Supervisory Authorities respectively, and to document the Personal Data breach. Contact details regarding the report are recorded in the customer service system. Contacts persons are specified in Appendix I attached to this Agreement.
Article 7 — Right of data subjects
1. Data Subjects have the right to obtain information about the processing of their Personal Data or to have the information rectified, erased or blocked through a Subject Access Request. Data Subjects may also request to have their Personal Data transferred or transmitted to a third-party controller through a Subject Transmission Request.
2. Where the data is to be transmitted to a third-party controller, this shall be done in a structured, commonly used and machine-readable format.
3. Bolder shall maintain a record of Subject Access Requests and Subject Transmission Requests received by Bolder, the decisions made and any information that was exchanged, transmitted or transferred.
4. The Parties agree that the responsibility for complying with a Subject Access Request or a Subject Transmission Request falls to the Party receiving the request in respect of the Personal Data held by that Party.
5. The Parties agree to provide reasonable and prompt assistance to each other as is necessary for each Party to comply with their obligations under applicable Data Privacy Laws.
Article 8 — Automated decision making
Bolder does not carry out automated profiling and will not make any decisions based on the automated processing of Personal Data without informing the Client.
Article 9 — Transfer of personal data
1. Bolder may, in the performance of the Services, transfer and provide access to Personal Data in third countries. Such transfer shall only be made to a country whose laws shall have been assessed by the European Commission to have an adequate level of protection by means of an adequacy decision and in which case the transfer shall be subject to the terms of a contract incorporating standard contractual clauses in the form adopted by the European Commission under Decision 2010/87/EU (the Model Clauses) or equivalent or replacement decision.
2. Bolder shall not transfer or provide access to Personal Data outside a country as referred to in Article 9.1 above, except with the Client’s express written permission.
Article 10 — Accountability and obligation to report
1. Following a reasonable request, Bolder shall provide the Client with the necessary information in order for the Client to be able to draw an informed opinion on Border’s compliance with its obligations set out under Data Protection Laws.
2. Where Border qualifies as a Joint Controller the Parties are responsible for any applicable reporting of the relevant processing of (personal) data to the relevant data protection authority. The Parties will cooperate in this regard until the obligations have been met.
Article 11 — Liability
All liability arising from or in connection with this protocol follows and is exclusively governed by the liability provisions set out in, or otherwise applicable to, the Agreement. Therefore, and in order to calculate liability limits and/or to determine the application of other limitations of liability, any liability arising from this protocol is deemed to arise under the relevant Agreement.
Article 12 — Duration and termination
1. This protocol shall be in force for as long as the Agreement is in force. On termination of the Agreement, the arrangement of this protocol shall end by operation of law without any further (legal) act being required.
2. Early termination of this protocol or the arrangement made by it is not possible.
3. Subject to a statutory provision resting with Border, Border shall, in the case of termination of the Agreement, and when the processing of Personal Data is no longer necessary to settle the Agreement’s termination, ensure that:
• the Personal Data is returned or provided to the Client or a successive contractor designated by the Client on a suitable information carrier;
• the Personal Data is destroyed, if the Client so requests;
• after return, provision or destruction, it immediately ceases and does not resume any processing of (the relevant) Personal Data.
4. Obligations under the Agreement including this protocol, which by their nature are intended to continue even after the end of the Agreement, continue to exist after the end of the Agreement.
Article 13 — Miscellaneous
1. In the event of conflict between the provisions in this protocol and the Agreement and/or any other agreements between the Parties, the provisions of this protocol with regard to the data protection obligations of the Parties shall prevail. In case of doubt as to whether clauses in these other agreements relate to the data protection obligations of the Parties, the arrangements of this protocol will prevail.
2. The invalidity or unenforceability of any provision in this protocol will not affect the validity or enforceability of the other provisions of this protocol. The invalid or unenforceable provision is (i) so modified so as to guarantee its validity or enforceability and at the same time the parties’ intentions are preserved as much as possible or, if not possible, (ii) interpreted as if the invalid or unenforceable part had never been included therein. The foregoing also applies if this protocol contains an omission.
3. Personal Data which Bolder processes is stored by Bolder on its servers and/ or on the servers of the cloud-based database located in Switzerland. This protocol is exclusively governed by the applicable law of the Agreement and any dispute in respect of this Agreement or execution thereof shall be submitted to the Bolder entity servicing the Client and before the competent court as defined in the Agreement.
4. Any amendment to this protocol shall be published on the Bolder website but shall not reduce or otherwise limit the rights of the Client.
APPENDIX I
Categories of data subjects
The transmitted Personal Data concern the following categories of Data Subjects:
• The investors or unit holders in the investment funds administrated by us or individuals connected with the investor or unit holders (for example directors, trustees, employees, representatives, shareholders, investors, clients, beneficial owners or agents) which includes, but is not restricted to, data such name, residential address, email address, place of birth, date of birth, bank account details and details relating to your investment activity;
• Individuals that represent the Client, that are advising the Client, that are in any contractual or statutory relationship with the Client, or that the Client has collected in view of its servicing towards such individuals, or are otherwise connected to such individuals.
Subject of processing
All processing activities (including the collection, organization and analysis of Personal Data) as are reasonably required to facilitate or support the provision of the Services described under the Agreement.
Nature and purpose of the processing
Bolder collects, processes and uses the Personal Data of the Data Subjects:
• where this is necessary for the performance of the Agreement;
• where this is necessary for compliance with a legal obligation (such as the anti-money laundering obligation to verify the identity of our customers (and, if applicable, their beneficial owners) and other applicable regulations, such as tax reporting regimes as FATCA and CRS; and/or
• where this is necessary for the purposes of the legitimate interests of us or a third party and such legitimate interests are not overridden by your interests, fundamental rights or freedom.
Kind of personal data
The Personal Data collected, processed and used by Border includes:
• names and contact information;
• general demographic information (such as gender, age, date of birth, marital status, nationality, employment details, residence, utility bills, etc.);
• personal identification documentation and related information such as passport numbers and employee identification numbers;
• financial and payment data such as bank account numbers and transaction information;
• information related to the provision of the Services
APPENDIX II
1. POT Verhuizingen / Logistiek B.V.
2. Avantage Cloud Solutions B.V.
3. Remondis B.V.
4. Docusign
ANNEX II TO THE GENERAL TERMS AND CONDITIONS OF BOLDER BUSINESS SERVICES (NETHERLANDS) B.V.
