Terms and conditions · Digital Notary

1. Content and Applicability

1.1 These General Terms and Conditions of Digital Notary (the "Terms") apply to all services and work offered by Digital Notary B.V. ("Digital Notary"), whether paid or unpaid, to private limited liability companies ("Companies") and/or shareholders. Digital Notary is not a notary's office and does not employ any civil-law notaries. Digital Notary provides digital services supporting the incorporation, management and administration of Companies and in doing so works with affiliated notary's offices to enable founders to incorporate Companies digitally. As part of these services, the shares of the Company are by default included in a collective deposit and thereby immobilised in book-entry form. The Shareholder Register is kept digitally and the issue, reissue and transfer of shares take place entirely digitally (in book-entry form), without the involvement of a civil-law notary. In addition, the Services of Digital Notary comprise all related activities, including facilitating access to and inspection of the digital Shareholder Register and providing additional supporting services related to the digital incorporation, management and administration of Companies.

1.2 Digital Notary B.V. provides the Services in cooperation with Nxchange B.V., a group company of Digital Notary B.V. Nxchange B.V. is an intermediary within the meaning of the Wge, which may maintain a collective deposit within the meaning of the Wge. These Terms also apply to the Services of Nxchange B.V. to companies in connection with the creation and management of the Digital Shareholder Register after incorporation of the Company.

1.3 Nxchange B.V. also operates a regulated market and a multilateral trading facility as referred to in Section 1:1 of the Financial Supervision Act (Wet op het financieel toezicht), on which financial instruments may be listed, and holds a licence as an investment firm. If the Company wishes to use the services of Nxchange B.V. for the listing of financial instruments on the Nxchange exchange platform, it will enter into a separate agreement with Nxchange for that purpose. These Terms do not apply to that agreement.

1.4 The details of Digital Notary B.V. and Nxchange B.V. are as follows:

Digital Notary B.V., Brouwersgracht 77, 1015 GC Amsterdam, the Netherlands. KvK number: 91355702. Email address: info@digitalnotary.nl. Telephone number: +31 (0)85 800 0389.
Nxchange B.V., Brouwersgracht 77, 1015 GC Amsterdam, the Netherlands. KvK number: 62712616. Email address: support@nxchange.com. Telephone number: +31 (0)20 240 43 65.

1.5 In these Terms, "Digital Notary" refers to Digital Notary B.V. or, where Services are (partly) performed by Nxchange B.V., to Digital Notary B.V. and Nxchange B.V. jointly.

2. Definitions

2.1 In these Terms, the following terms have the following meanings:

a. Shares: shares or (depositary receipts for) shares in the Company;
b. Customer: the purchaser of (one or more) Services of Digital Notary, with whom an Agreement is concluded; a Customer may be a Company or a Shareholder;
c. GDPR: the General Data Protection Regulation of the European Union and the Dutch General Data Protection Regulation Implementation Act (UAVG).
d. Corporate Action: all acts and resolutions of a Company that affect the issued capital, the share structure or the rights of shareholders, including – but not limited to – the issue, reissue, conversion or repurchase of shares, the granting or exercise of options, warrants or other rights to acquire shares, the distribution of dividends in cash or in shares, amendments to the articles of association, mergers, demergers, acquisitions, conversion of share classes, as well as all other resolutions that lead to a change in the digital shareholder register or the position of shareholders.
e. Services: services offered by Digital Notary to the Customer, including the Services as described in article 1.
f. Digital Shareholder Register: the register in which the details of holders of Shares – and the classes and numbers of Shares they hold – are kept, and which consists of collective deposits within the meaning of the Wge. Each collective deposit is held by Nxchange. The records of Nxchange show which Shareholder is entitled to which Shares. Upon an Issue of Shares, they appear in the Securities Account of the Shareholder concerned.
g. Digital Notary Platform: the secure digital environment of Digital Notary on which the Company and Shareholders can log in via a user account to purchase Services and/or to gain access to the Digital Shareholder Register and/or other data relating to the Services purchased.
h. Shareholder: a natural person or legal entity that holds, buys or wishes to buy Shares in an Issue.
i. Agreement: an agreement between Digital Notary and the Customer in connection with the provision of (one or more) Services to the Customer, or arising from an agreement for the provision of (one or more) Services between Digital Notary and the Customer.
j. Issue: the issue of Shares by a Company to one or more Shareholders via Digital Notary.
k. Company: the private limited liability company, or private limited liability company in formation, that uses the Services of Digital Notary;
l. Wft: the Financial Supervision Act (Wet op het financieel toezicht).
m. Wge: the Securities Giro Transfer Act (Wet giraal effectenverkeer).
n. WWFT: the Money Laundering and Terrorist Financing (Prevention) Act (Wet ter voorkoming van witwassen en financieren van terrorisme).

3. General

3.1 These Terms apply to all offers and quotations of, and to all instructions to, Digital Notary to provide (one or more of) the Services, and to every Agreement with Digital Notary in connection with the Services, including (paid or unpaid) Services to Companies and Services to Shareholders who use the Digital Notary Platform.

3.2 The applicability of any general terms and conditions of the Customer is hereby expressly rejected.

3.3 The Customer may only invoke provisions that deviate from these Terms if and to the extent that Digital Notary has accepted them in writing.

3.4 Digital Notary is not obliged to accept a request from the Customer to provide Services.

3.5 A Customer who has once contracted on the basis of these Terms agrees to the applicability of these Terms to later agreements between it and Digital Notary.

3.6 To the extent that a provision in these Terms conflicts with a provision of the (main) Agreement, the Digital Notary Licence Agreement or the Data Processing Agreement between Digital Notary and the Customer, the provision concerned of the (main) Agreement, the Digital Notary Licence Agreement or the Data Processing Agreement prevails over the conflicting provision in these Terms.

4. Services

4.1 Digital Notary provides the Services as described when the Agreement was concluded and in the Digital Notary Licence Agreement.

4.2 In performing the Services, Digital Notary acts in accordance with Dutch law, including the obligations resting on Nxchange B.V. as an intermediary within the meaning of the Wge and under the Wft and the WWFT.

4.3 Digital Notary provides the Services in cooperation with a notary's office designated by Digital Notary. Digital Notary is not a notary's office and does not employ any civil-law notaries. The civil-law notary performs the notarial acts that form part of the Services.

4.4 The Customer authorises Digital Notary to instruct the external notary's office on its behalf to perform the notarial acts that form part of the Services, such as executing the deed of incorporation of the Company or the issue or amendment of articles of association. In that connection, (the founders and/or directors of) the Customer must grant a notarial power of attorney to the civil-law notary, which the civil-law notary will present to the Customer (via the Digital Notary Platform).

4.5 The legal relationship between the external notary's office and the Customer in connection with the acts performed by the civil-law notary for the Customer is governed by the general terms and conditions of the external notary's office, including the limitations of liability contained therein. To the extent necessary, this provision constitutes a third-party clause for the benefit of the external notary's office within the meaning of Section 6:253 of the Dutch Civil Code (BW), which the external notary's office may invoke against the Customer.

4.6 Digital Notary has the right to terminate an Agreement with immediate effect (prematurely), without liability, if the civil-law notary, under the notarial duty of care, refuses to perform the Services, such as in the event of suspected identity fraud, money laundering or other illegal activities or in case of doubt about legal capacity. In that case Digital Notary remains entitled to payment for the Services purchased, including to the extent that they cannot be performed for the aforementioned reasons, and is not obliged to refund fees already paid.

4.7 Under regulations arising from the WWFT, the civil-law notary is obliged to establish the identity of (the founders, directors and/or ultimate beneficial owners (UBOs) of) the Customer. The data required for this is requested from the Customer by Digital Notary on behalf of the civil-law notary – via a secure method – and made available to the civil-law notary. In connection with the notarial duty of care, the civil-law notary may also ask the Customer for further information (information or documentation) and/or for a meeting with the Customer. If the Customer is unwilling or unable to provide the requested data or information, or does not cooperate with a request from the civil-law notary for a meeting, this may result in the Services not being able to be provided (in whole or in part), which is entirely at the Customer's risk. In that case Digital Notary retains its claim to full payment for the agreed Services, including to the extent that they cannot be performed, and is not obliged to refund fees already paid.

5. Prices and delivery

5.1 The current prices for the Services of Digital Notary are stated on the Digital Notary website. Prices are without obligation and may be changed by Digital Notary at any time before the Agreement is concluded. Periodic fees owed to Digital Notary under the Digital Notary Licence Agreement may be adjusted by Digital Notary annually as of 1 January.

5.2 All prices stated by Digital Notary on the website or in other offers are exclusive of VAT, unless stated otherwise. VAT is added to the prices at checkout.

5.3 The delivery times for Services stated by Digital Notary are indicative and not binding, unless it has been explicitly agreed that a certain delivery period is binding.

6. Payment and invoicing

6.1 Payment for Services purchased via the Digital Notary platform must be made in advance, by online payment (iDEAL or another online payment method made available). Without payment, Digital Notary is under no obligation whatsoever to provide the Services concerned.

6.2 Digital Notary may choose to invoice certain Services afterwards. In that case a maximum payment term of 14 days applies. In the event of late payment, the Customer is in default immediately and owes the statutory interest for late payment under Section 6:119a of the Dutch Civil Code from the due date of the invoice up to and including the day of full payment. Any costs of a debt collection agency engaged by Digital Notary are for the account of the client.

6.3 In all cases the Customer receives from Digital Notary a digital invoice for the Services that meets the applicable requirements under Dutch law.

6.4 Any right of the Customer to set off an invoice from Digital Notary against any counterclaim of the Customer, or to suspend any payment to Digital Notary, on any ground whatsoever, is hereby excluded.

6.5 This article does not apply to Services of Digital Notary that are offered free of charge.

7. The Digital Notary Platform

7.1 Digital Notary provides the Company and Shareholders with access to the Digital Shareholder Register via a user account on the Digital Notary Platform. The Platform can be accessed via the Digital Notary website and/or the Digital Notary app.

7.2 Digital Notary takes appropriate technical and organisational measures to secure the Digital Notary Platform and the user accounts in order to safeguard the confidentiality and integrity of Customer data and to prevent access or misuse by unauthorised third parties. Digital Notary does not guarantee that misuse or unauthorised access will be prevented at all times.

7.3 User accounts are secured by means of a username (in the form of an email address) and a password, which must meet the conditions set by Digital Notary for choosing a password (the "Login Details"). The Customer may periodically be asked to change the password.

7.4 The Customer is obliged to keep the Login Details strictly confidential and will provide them only to staff authorised to log in on behalf of the Customer. The Customer guarantees that unauthorised parties do not gain access to the Login Details. The Customer is obliged to log out at the end of each session.

7.5 Misuse of Login Details is at the Customer's risk, unless the Login Details have come into the hands of third parties through an act or omission of Digital Notary. In the event of (suspected) misuse of Login Details, the Customer will notify Digital Notary as soon as possible. In that case Digital Notary is entitled to (temporarily) block access to the Digital Notary Platform or to take other appropriate measures.

7.6 The Customer will always follow guidelines or instructions from Digital Notary for the use of the Digital Notary Platform.

7.7 Digital Notary endeavours to ensure that the Digital Notary Platform functions properly and is available to the Customer day and night (provided the Customer's equipment meets the technical requirements of the Digital Notary Platform). However, Digital Notary does not guarantee that the Platform is available at all times (100% of the time) and/or functions without errors, viruses or bugs. Digital Notary is entitled to temporarily suspend access to the Platform if this is necessary for periodic or incidental maintenance. In the case of planned maintenance, it will try to schedule this at night and/or at the weekend where possible. Where possible, the Customer will be notified of this in advance.

7.8 For technical questions about the use or availability of the Digital Notary Platform, or to report malfunctions or security incidents, you can contact Digital Notary customer service at support@digitalnotary.nl.

8. Privacy

8.1 Digital Notary and the Customer will each comply with the obligations resting on them under the GDPR.

8.2 Information about the processing of personal data by Digital Notary (including personal data of website visitors, Customers or persons associated with the Customer) for which it is the controller within the meaning of the GDPR is set out in the Privacy Statement of Digital Notary. The current version is published on the Digital Notary website and can be found at digitalnotary.nl/privacybeleid.

8.3 The processing of personal data by Digital Notary on behalf of the Company under the Digital Notary Licence Agreement (including in the context of the digital incorporation of the Company, identification of shareholders and directors, managing the Digital Shareholder Register and the use of the Digital Notary Platform by the Company) is governed by the Data Processing Agreement between Digital Notary and the Company.

9. Liability

9.1 Digital Notary B.V. and Nxchange B.V. are each separately, and not jointly and severally, liable for any breach and/or unlawful act of either of them in connection with the Agreement or the Services.

9.2 The liability of Digital Notary in connection with an Agreement and/or Services provided, including both contractual and non-contractual liability, is limited as follows:

9.1.1 Digital Notary is not liable for acts (including Corporate Actions) of a Company or for a Company's failure to act.
9.1.2 Digital Notary is not liable for loss suffered in connection with or arising from an Issue, or the making of payments or the receipt of funds in connection with the Issue, purchase or sale of Shares, without prejudice to article 9.1.4.
9.1.3 Digital Notary is not liable for business, consequential or indirect loss, of whatever nature and however caused, including loss of turnover, loss of profit or loss of goodwill, business or customers, or loss due to business interruption.
9.1.4 In the event of loss, theft and/or other unauthorised destruction of Shares in the Digital Shareholder Register for which Digital Notary would be liable, the liability of Digital Notary is limited to compensating the value of the lost Shares in money.
9.1.5 Digital Notary is not liable for shortcomings of the notary's office involved in performing the Services. Nor is Digital Notary liable if the designated civil-law notary has wrongly refused its services and loss results from this. Any claim of the Customer against the notary's office is governed by the general terms and conditions of the notary's office.

9.3 Any liability of Digital Notary towards the Customer in connection with the Agreement and/or Services is limited to either i) the net invoice value of what Digital Notary delivered to the Customer in the three months preceding the event causing the loss (less any amounts credited), or, if the loss is covered by an insurance policy under which Digital Notary is an insured party, ii) the amount actually paid out by the insurer in that respect less the deductible (if the amount paid out is higher than the amount referred to under i)), and iii) on the understanding that any liability of Digital Notary towards the Customer is limited to a maximum amount of EUR 50,000.

9.4 Any claim of the Customer against Digital Notary, other than a claim acknowledged by Digital Notary, lapses in any event 12 months after the Customer became aware of the existence of the claim, unless the Customer has informed Digital Notary within that period of the existence of the claim by means of a specified and properly substantiated written notice and has demanded performance, without prejudice to the statutory complaint periods (to the extent these are shorter) and other statutory or contractual defences of Digital Notary.

9.5 The limitations of liability described in this article also apply in the event that Digital Notary would be liable for errors of third parties engaged by it, without prejudice to article 9.1.5.

9.6 Limitations of liability under these Terms do not apply to loss resulting from intent or deliberate recklessness of Digital Notary, in the case of personal injury or death, or to other loss that by law cannot be excluded or limited by contract.

9.7 The limitations of liability under this article 9 also apply to any liability of employees, directors, representatives, group companies and/or (other) (legal) persons affiliated with Digital Notary who are involved in the performance of the Agreement. To the extent necessary, this provision constitutes a third-party clause for their benefit within the meaning of Section 6:253 of the Dutch Civil Code (BW), which these (legal) persons may invoke directly against the Customer.

10. Indemnity

10.1 The Customer indemnifies Digital Notary against all claims of third parties in connection with or arising from:

Acts (including Corporate Actions) of the Company or a Company's failure to act;
Unauthorised use and/or misuse of the Digital Notary Platform and the Digital Shareholder Register by the Customer or persons associated with the Customer and/or their use in breach of the guidelines of Digital Notary;
Misuse of Login Details by the Customer, except to the extent that the Login Details have come into the hands of third parties through an act or omission of Digital Notary.

11. Suspension and termination

11.1 In the event of a failure in performance by the Customer, Digital Notary is entitled to suspend its obligations towards the Customer or to terminate the Agreement in whole or in part, without prejudice to further rights, such as any right to compensation for costs, damages or statutory interest. In the case of a failure in performance that is not permanently or temporarily impossible, this right of suspension or termination only arises after Digital Notary has given the Customer written notice of default and the Customer has not performed within 14 days.

11.2 Upon termination under this provision, all outstanding invoices of Digital Notary under the Agreement or other Agreements become immediately due and payable, without prejudice to the further rights of Digital Notary.

12. Communication, complaints, choice of law and disputes

12.1 Communication with the Customer will take place via the email address provided by the Customer to Digital Notary. The Customer is responsible for keeping the email address details in their account on the Digital Notary Platform up to date.

12.2 If you have complaints about Digital Notary, you can contact our customer service by sending an email to support@digitalnotary.nl. We will handle your complaint as soon as possible.

12.3 If you have complaints about the work of the civil-law notary, you can contact the notary's office directly via the internal complaints procedure of the notary's office. The services of the civil-law notary are also governed by the Notarial Complaints and Disputes Regulation (Verordening Klachten- en geschillenregeling Notariaat). More information can be found at www.knb.nl (the website of the Royal Dutch Association of Civil-law Notaries) and www.degeschillencommissie.nl.

12.4 The Agreement is governed exclusively by Dutch law.

12.5 Disputes in connection with or arising from the Agreement and/or the Services of Digital Notary, including both contractual and non-contractual claims, will be submitted exclusively to the District Court of Amsterdam, except to the extent that the Customer may turn to another court under mandatory provisions of consumer law from which no contractual deviation is possible.

13. Final provisions

13.1 Digital Notary has the right to update and amend these Terms from time to time, provided the Customer is notified at least 30 (thirty) days in advance (by email or via the Digital Notary Platform). If the Customer does not agree to the updated or amended Terms, it may terminate the Agreement without any right to further recourse (without prejudice to the obligations resting on the Company upon termination of the Licence Agreement, where applicable). An updated or amended version of the Terms replaces the existing (current) version from the date stated in the notice of update/replacement. The applicable Terms are published on the website www.digitalnotary.nl.

13.2 The Customer may not transfer its rights or obligations arising from the Agreement to third parties, except with the prior written consent of Digital Notary.