Business to Business Agreement
Troly Business Systems PTY LTD
ACN: 167 332 167
This Agreement contains the terms and conditions which govern your access to and use of the Troly Platform. The Troly Platform allows you to use various services provided by Troly which help you complete Transactions, generate valuable commercial information regarding your Products and Customers and ultimately better your interactions with your partners and Customers as a whole.
All capitalized terms used herein shall have the meanings given to them in Schedule A (Definitions).
This Agreement includes and hereby incorporates the terms and conditions of each of its schedules, namely: Schedule A (Definitions), Schedule B (Using the Troly Platform), Schedule C (Fees), Schedule D (Confidentiality and Intellectual Property), Schedule E (Personal Information), which all form an integral part hereof and which you confirm accepting.
Subject to the provisions contained in this Agreement, Troly does not claim any rights in the Materials and Product Information you provide to Troly for the purposes of using the Troly Platform.
Troly may, at its sole discretion, investigate, refuse to process, suspend, or cancel any Transaction, and require any information regarding a Transaction or a Customer. Upon request by Troly, you will stop and cancel the Transaction and if you have already transferred the Products to a carrier, you will use best efforts and will take all necessary and useful measures to stop and cancel the delivery of said Products. You will refund any Customer that has been charged for a Transaction that Troly has stopped or cancelled.
When applicable, you will promptly accept, calculate and process cancellations, returns, refunds and adjustments.. Notwithstanding anything to the contrary, Troly may, in its sole discretion, itself accept, calculate and process cancellations, returns, refunds and adjustments for the benefit of Customers. Troly may make any payments to Customers in order to fulfill any such cancellation, return, refund and adjustment and, in such case, you will reimburse Troly any amounts arising therefrom.
This Agreement will commence on the date of activation of your User account and will continue indefinitely until it is terminated by either party in accordance with the provisions herein.
Upon termination of the Agreement, all rights and obligations of the parties under this Agreement will be extinguished, except with respect to (i) Transactions which are in the process of being completed, and (ii) rights and obligations of the parties which by their nature are intended to survive expiration or termination of this Agreement.
Upon termination of this Agreement or at any time upon request by Troly, you will (i) promptly return to Troly the Confidential Information belonging to Troly, including all copies thereof, in your possession or control, and (ii) destroy or purge of your systems and files any such Confidential Information (to the extent practicable) including but not limited to all communications exchanged with Troly, promotional material or other forms of product information.
Notwithstanding anything to the contrary herein, you grant to Troly (and its Affiliates and subcontractors, if applicable) a limited, royalty-free, worldwide and non-exclusive right and license to use, reproduce, display or otherwise commercially exploit your Materials and Product Information for the purposes of this Agreement.
Except with the prior written consent of Troly, you may not (i) make a public statement related to this Agreement, the Troly Platform or the Services, (ii) use Troly’s Intellectual Property for any purpose, including for promotional purposes, or (iii) embellish or misrepresent the relationship that exists between Troly and yourself.
You represent and warrant to Troly that (i) you are duly organized, validly existing and in good standing under the laws of your jurisdiction, (ii) you have the full power and authority to enter into this Agreement, perform your obligations and grant the rights, licenses and authorizations granted hereunder, (iii) you are not a party to and you will not become a party to an agreement which prevents you or would prevent you from complying with or performing your obligations under this Agreement, (iv) you and all of your subcontractors, agents and suppliers hold all of the licenses and permits required for the sale of your Products via the Troly Platform and will comply with all Applicable Laws in the performance of the obligations under this Agreement (including all applicable data protection, privacy and money-laundering laws, regulations and requirements); and (v) the information, content, media and other materials provided or otherwise made available by you to Troly will be, at all relevant times, complete and accurate and will not infringe or otherwise violate the Intellectual Property rights, or other proprietary rights of any third party.
You will indemnify, defend and hold Troly, its Affiliates and their respective directors, officers, employees and agents from and against any and all claims, damages, losses and expenses (including reasonable attorney fees) (collectively, the Losses) with respect to any third party claim arising out of or related to (i) any breach of your obligations hereunder, (ii) your negligence, willful misconduct in the performance of this Agreement, (ii) your violation of any representations and warranties herein, (iii) your infringement or violation of a third party’s intellectual property or your misuse of any PII, (iv) your violation or alleged violation of any applicable retail food or other health and safety code, rule or regulation, and (v) all Taxes (or the non-payment thereof) by you, except, in all cases, to the extent that such Losses was directly caused by the gross negligence or willful misconduct of Troly, its Affiliates or their respective directors, officers, employees and agents.
The Troly Platform and the Services, including all content, software, functions, materials and information made available on or provided in connection thereto, are provided to you on an "as-is" and "as-available" basis, without warranty or condition, expressed, implied or statutory. Your use of the Services is at your sole risk. To the fullest extent permissible by law, other than as provided herein, Troly disclaims any representations or warranties regarding this agreement, the Troly Platform, the Services or the Transactions contemplated by this Agreement, including any implied warranties of performance, merchantability, fitness for a particular purpose or non-infringement. Troly does not in any way warrant that the functions of the Troly Platform and Services will meet your requirements or will be available, timely, secure, uninterrupted and error free. Troly will not be liable for any service interruption, including without limitation, system failures or other interruptions that may affect the receipt, processing, acceptance, completion, settlement or any other aspect of any transactions. Moreover, since Troly is not able to review, control or otherwise have any influence over services provided by third parties hereunder, such as suppliers in the context of industry services, you agree that Troly will not be liable for any services provided by such third parties.
Since Troly is not a party to the transactions between yourself and your Customers, if a dispute arises, you and your Customers shall expressly release Troly (and its Affiliates and their respective directors, officers, employees and agents) from claims, demands and damages (actual and consequential) of every kind and nature, known and unknown, disclosed and undisclosed, arising out of or in connection with such disputes.
To the fullest extent permitted by Applicable Laws, in no event will Troly be liable for any claim for any indirect, willful, punitive, incidental, exemplary, special or consequential damages, for loss of profits, or damages for loss of business arising out of this Agreement, or loss or inaccuracy of data of any kind, whether based on contract, tort or otherwise, even if Troly has been advised of the possibility of such damages. Furthermore, Troly’s total cumulative liability of each and every kind arising out of or in connection with this Agreement or the transactions contemplated herein shall not exceed at any time the total amounts paid by you to Troly during the prior three (3) month period prior to the loss being incurred or the loss being reported, whichever is lower, in connection with the particular service giving rise to the claim.
Troly is not liable for suppliers quality of Service. Without limiting the generality of the foregoing, Troly shall not be liable for any damages resulting from the fact that a delivery fails to meet a deadline, or deliver under certain level of service (eg. refrigerated truck), or a piece of data doesn't arrive in a 3rd party software in a timely manner, or packaging provided by a supplier didn't not meet expectations, etc.
Troly is not liable for reviews, feedback, or other information obtained by and potentially published by Troly, including without limitation, estate review, customer service quality reviews, product reviews etc. Troly is also not liable if a negative comment or experience is published and not acted on by the winery (loss opportunity to right a wrong).
You shall maintain insurance policies in the types and amounts appropriate having regard to your obligations and liability hereunder. A general commercial liability insurance policy with a coverage in the amount of no less than $2,000,000 per occurrence or the minimum required by your jurisdiction, whichever is greater. Your insurance policies shall be effective for the term of this Agreement and for 2 years thereafter (or any other longer period that may be required by Applicable Laws. Proof of insurance shall be given upon request by Troly and notification shall be sent to Troly at least 30 days prior to the cancellation or reduction of any such policy coverages. You are responsible for ensuring the adequacy, sufficiency and compliance with Applicable Laws of your insurance coverage and you understand that such coverage shall not be interpreted as a limit of liability.
The Troly Platform and Services are provided to you on a non-exclusive basis and you hereby agree and acknowledge that Troly may provide such Troly Platform and Services to your competitors.
Neither party shall be liable for delays in or for failure to perform hereunder due to causes beyond reasonable control, including without limitation acts of God, acts or omissions of the other party or a third party, service failures, Internet or telecommunications outages, acts of civil or military authorities, fire, strikes, power surges or outages, epidemics, flood, earthquakes, riots, wars and cyberwars. Each party shall use all reasonable efforts to provide the other party with notice of any such events.
This Agreement constitutes the entire agreement between the parties with respect to the access to and use of the Troly Platform and the Services provided thereunder and supersedes any previous understanding or agreement, whether oral or written. No waiver of any provision of this Agreement will constitute a waiver of any other provision nor will any waiver of any provision of this Agreement constitute a continuing waiver unless otherwise expressly provided.
You and Troly are independent contractors and nothing contained in this Agreement will create any partnership, joint venture, agency, franchise, sales representative, or employment relationship between the parties.
You may not assign this Agreement without the prior written consent of Troly. Subject to the foregoing restriction, this Agreement will be binding on and will inure to and be enforceable against the parties and their respective successors and assigns. Troly may perform any of its obligations hereunder through one or more of its Affiliates and/or other subcontractors.
Troly may amend any of the terms and conditions contained in this Agreement at any time and at its sole discretion by posting the relevant amended and restated terms and conditions on the Troly Platform. Any such amendments to the terms and conditions shall be effective as of the date of posting on the Troly Platform. Your continued use of the Troly Platform or the Services provided thereunder after Troly’s posting of any amended terms and conditions will constitute your agreement to, and acceptance of the amended terms and conditions.
Troly will send you notices and other communications regarding this Agreement or the Services at the e-mail address(es) designated for notifications and updates in your User Account. Questions regarding these terms and conditions, the Services or your User Account should be sent to email@example.com.
This Agreement shall be construed and enforced in accordance with the laws of New York, without giving effect to the principles of conflicts of law.
Any disagreement, conflict, controversy, question or other dispute concerning this Agreement or resulting from its interpretation or from its application will be definitely and necessarily settled by arbitration according to the International Chamber of Commerce (ICC) Rules of Arbitration in force at the time of the arbitration. Arbitration shall take place in English before a single arbitrator appointed by the parties according to the aforementioned ICC Rules of Arbitration and the arbitration sessions shall be held in New York. Notwithstanding anything to the contrary, (i) a claim may be asserted in a small claims court that is a Governing Court if such claim qualifies, and (ii) either party may bring suit in a court of New York, thereby submitting to the jurisdiction of New York and waiving our respective rights to any other jurisdiction, in the case of infringement, violation or misuse of Intellectual Property rights.
Affiliate means, with respect to any Person, any other Person that directly or indirectly Controls, is Controlled by or is under common Control with that Person.
Confidential Information means all technical and non-technical information, knowledge or data of a proprietary or confidential nature disclosed by one party to the other hereunder, regardless of its nature or form, whether written, pictorial or oral, including without limitation, (i) Intellectual Property, (ii) business plans, strategies and commercial and financial information, (iii) drawings, specifications, standards, manuals, reports, formulas, compilations, processes, information, lists, computer software, programs, devices, methods, and any other information, knowledge or data which is valuable to a party and not generally known to the public through legitimate origins, provided such information is marked as confidential or proprietary or would otherwise reasonably be expected to be confidential or proprietary based on its nature or the circumstances in which such information, knowledge or data becomes available.
Control (including the terms Controls and Controlled) means, with respect to any Person, either (i) ownership directly or through other entities of more than 50% of all beneficial equity interest in such Person, or (ii) the possession, directly or indirectly, of the power to direct or cause the direction of the management and policies of such Person through the ability to exercise voting power, by contract or otherwise.
Customer means any Person who has purchased, may purchase in the future, or otherwise may be interested in purchasing Products sold by you using the Troly Platform.
Intellectual Property means all proprietary and intellectual property rights worldwide, arising under statutory provisions or either common law or civil law, whether registered or not, which may be granted or recognized under any given legislation, including without limitation, all patents, patentable and non-patentable ideas, inventions, innovations, arts, processes, manufactures, developments, improvements, industrial designs, moral rights, database rights, slogans, logos, confidential information, trade secrets, trademarks, trade names, business names, domain names, copyrights, and any and all rights of an equivalent nature.
Applicable Laws means, in respect of any Person, any laws, ordinances, rules, regulations, orders, licenses, permits, judgements, decisions or other requirements, now or in the future in effect, of any governmental authority (on a federal, state or provincial level, as applicable) of competent jurisdiction.
Person means any individual, corporation, partnership, limited liability company, governmental authority, association, joint venture, division or other entity, whether or not having a distinct legal existence.
PII refers to Personal Identifiable Information and means any information that can be associated with or traced to any individual, including an individual’s name, complete telephone number, e-mail address, or other similar specific factual information, regardless of the media on which such information is stored and includes such information that is or may be generated, collected, stored or obtained in the context of this Agreement, irrespective of whether marked or otherwise identified as personal.
Products refer to any and all of the products that you are entitled to display and sell via the Troly Platform.
Materials mean technology, trademarks, content, data material and other items or information provided or made available by to Troly for marketing purposes under this Agreement.
Services include without limitation any and all of the services and products made available to you by Troly via the Troly Platform for the purposes of helping you complete Transactions, generate valuable commercial information regarding your Products and Customers and ultimately better your interactions as a whole.
Taxes has the meaning attributed to such term in Section 12.1.1.
Transaction means the purchase of Products by any Customer via any online or offline channel.
Troly Platform refers to the marketplace destined for the online direct sale of wine via the website www.troly.io, the mobile application known as “Troly” and all of the transactional pages related thereto, including without limitation, Troly’s software technology, business software, the plugin for WordPress.
User Account means the user account that you will have to activate via the Troly Platform in order to be able to use the Services.
In order to use the Troly Platform and Services, you must first activate a User Account.
To activate your User Account, you will provide to Troly any required information, including your address, phone number, email address, credit card information, bank account information and any other information necessary or useful. By activating a User Account, you authorize Troly to verify your information (including your credit card and banking information), to obtain credit reports from time to time and to obtain credit authorizations from the issuer of your credit card.
You are responsible for (i) the accuracy and completeness of the information, content and other materials provided or otherwise made available by you to Troly for the registration of your User Account and use of the Services, (ii) the confidentiality of your account login credentials, and (iii) any and all actions and activities carried out under your User Account.
Troly reserves the right, at all times and for any reason, to (i) refuse to activate, (ii) terminate, and (iii) remove information and content from a User Account.
You may only use your User Account for the purpose of accessing and using the Troly Platform and Services provided by Troly. You may not use your User Account for any illegal or unauthorized purpose, nor may you, in the use of the Troly Platform and Services, violate any Applicable Laws. Without limiting the generality of the foregoing, you must take all necessary measures and are responsible for not selling alcohol to any Person not entitled to purchase alcohol beverages, including without limitation, to Persons who are under the age legally required to make such a purchase.
All Fees incurred by you under this Agreement are due immediately as of the provision of the Service. Where possible, Fees due will be retained by Troly on any remittance of funds owed by you as a result of processing your Customer payments, as part of everyday reconciliation processing. Once monthly, any outstanding balance will be applied to your credit card on file. All fees are in United States Dollars (USD).
i. Implementation and
Charged as part of the initial configuration or ongoing configuration of your account and training of your team.
$395 per session
ii. Access and Usage
Cost of using the Troly, charged based on features as available on your sign-up date.
$20 per month to access, 1%-of-sales processed to use continue using.
iii. Premium Support
Access to a dedicated account manager and phone-based support.
$395 per month, on a month-by-month basis
iv. Web Consulting
Troly may offer additional services including, but not limited to, Website build, ad-hoc website development, marketing advisory or industry workshops.
Development: $125 hourly
Website Transf/er: $1,250
Websit//e Connection $250
v. Website Hosting Fee
Make your website available on the Internet. Includes server configuration, SSL certificates, annual registration of one (1) domain name, daily backups and minor-version website updates available for your CMS (not 3rd party plugins).
$500 per annum
vi. Industry Services
(optional, when subscribed)
Fees for services requested through Troly Add-OnsMarketplace, such as payment processing and shipping.
As quoted in each Add-ons
You request for Troly to package your customer and product data prior to having your account terminated.
viii. Administrative and Recovery
Applicable to all recovery work associated with seeking payment of any outstanding invoices
$750 fee per action, plus 10% of the invoice total per outstanding month.
All fees incurred outside of the Troly, or where Troly has agreed in writing to provide a separate invoice for, will be paid by you via electronic bank transfer or credit card. Should an invoice become outstanding, Troly may at its sole discretion, transfer the outstanding invoice balance to your Troly account and pay itself automatically via payment withholding and/or via your credit card.
For all fees incurred as a result of Troly introducing you directly to a supplier and/or for services not provided or tracked within Troly, we reserve the right to act as a mediator and apply the supplier outstanding balance onto your monthly invoice charged onto your credit card for as long as the supplier was contracted via Troly.
Platform Access and Usage Fees will be charged based on the extend of your usage of Troly. This may include but is not limited to a monthly platform access fee charged for accessing the suite of services, a module access fee for each various module are using and a platform usage fee based on the transactions your have recorded in the platform. These fees can be discussed with your sales representative and will be locked from the date you sign up to Troly. Troly reserves the right to rollout new additional features which may not be available to you and an upgrade process required within 12 months, granting access to new feature may change your pricing structure.
Account Termination Fees may be charged if you have been using Troly for less than 12 months, or if you require additional assistance from Troly or one of our partners to extract any data otherwise not available for standard download in Troly.
You may be allowed to access ready-to-use, fully integrated industry services provided through Troly by external providers, including but not limited to payment gateway, shipping, industry supplies or services, branding and communications.
The scope and prices will have been pre-negotiated with the provider and will not require you to enter a direct contractual agreement with each provider.
Fees vary based on services requested, charged to your account upfront and Troly will promptly list each service your transaction history and reports.
It should be noted that Troly is acting as an agent for each supplier and has (i) no control over the timeframe or quality of deliveries and (ii) can not be held responsible for failures to perform, as per
In normal circumstances, you will not be charged any account administration fee other than Clause 3.1.2.
Outstanding invoices will incur an administration fee limited to 10% of the value of the invoice, per calendar month.
All outstanding invoices requiring collection services will incur a one-off penalty equivalent to 25% of the invoice value.
For the purposes of this Agreement, "Intellectual Property" means any and all proprietary and intellectual property rights arising under statutory provisions or common or civil law, whether registered or not, which may be granted or recognized under any given legislation, including, without limitation, all patents, patentable and non-patentable ideas, inventions, innovations, arts, processes, manufactures, developments, improvements, industrial designs, moral rights, database rights, slogans, logos, confidential or proprietary information, trade secrets, trademarks, trade names, business names, domain names, copyrights and any and all rights of an equivalent nature.
It is understood and agreed that Troly is the owner of all rights, title, and interest in and to, arising from and the Troly Platform and the Services, including any and all improvements, modifications and other proprietary information relating thereto and any and all information, content, ideas or materials generated by the use of the Troly Platform and Services. Therefore, the Company
You agree and undertake: (i) not to contest, usurp or violate, directly and indirectly, any of the Intellectual Property belong to Troly or that of a third party developer of the Troly Platform or Services, or participate in or facilitate the commission of any such act; (ii) not to reproduce, duplicate, modify, copy, sell, resell or exploit any portion of Intellectual Property belonging to Troly or that of a third party developer of the Troly Platform or Services; and (iii) not to sell, rent, market, distribute, license, grant a right of use, give, assign or otherwise transfer to any person your User Account or right of use of the Services.
For the purposes of this Agreement, "Confidential Information" means any data or information belonging to Troly, whether in tangible or intangible form, in whatever medium provided, including (i) any report, study, interpretation, forecast, know-how, composition, plan, strategy, strategic partnership, financial information, work-in-progress, specification and document concerning or in connection to the operations of Troly’s business, (ii) intellectual property, trade secrets, product and service development plans or tools, research, ideas, discoveries, concepts, designs, formulas, technology, devices, inventions, improvements, methods, drawings, processes or procedures, whether or not protected or protectable by intellectual property law and scientific or technical information, (iii) the substance of agreements with clients, suppliers, and third parties as well as customer, supplier and prospective client lists, (iv) marketing arrangements and strategies, channels of distribution and pricing policies, (v) any commercial, operational, legal, financial, strategic, tactical, regulatory or governmental information, (vi) information relating to existing or prospective partners or customers, acquisitions, divestitures or joint ventures, (vii) information provided for inspection or review in any physical, electronic and/or virtual data room established or to be established by or on behalf of Troly, and (x) any other information that should reasonably be recognized as information of Troly or its Affiliates and such other information normally understood to be confidential or otherwise designated as such in writing by Troly, as well as information discerned from, based on or relating to any of the foregoing which may be prepared by you, all of which you expressly acknowledge and agree shall be confidential and proprietary information belonging to Troly.
You agree (i) to maintain the confidentiality of Confidential Information belonging to Troly and not, directly or indirectly, disclose it, in whole or in part, to any person without the prior written consent of Troly, (ii) not, directly or indirectly, to use Confidential Information belonging to Troly or otherwise take advantage of it, in any manner, for any purpose other than the performance of your obligations hereunder, (iii) not to incorporate Confidential Information belonging to Troly into any information, document, report or study whatsoever without the prior written consent of Troly, (iv) not to assist or collaborate with any third party using, directly or indirectly, Confidential Information belonging to Troly, (v) disclose Confidential Information belonging to Troly only to your directors, officers, employees and professional advisors who are required to know such Confidential Information for the performance of your obligations hereunder and provided, however, that such persons are bound by the obligations of confidentiality no less restrictive than that those set forth herein, (vi) to use best efforts and take all necessary and useful means to prevent any unauthorized disclosure or reproduction of Confidential Information belonging to Troly, and (vii) to indemnify Troly for any and all claims, damages, losses and expenses (including reasonable attorney fees) arising out of or related to any breach of your obligations of confidentiality by you or your directors, officers, employees and representatives and to pay to Troly all benefits or other profits that may be derived from any unauthorized disclosure or use of Confidential Information belonging to Troly, the whole, without restricting any and all other rights and remedies that Troly may have.
You may choose to connect your Troly account to external providers for the purpose of automatically synchronising some data with various systems. All software connected to Troly may incur additional charges, may decide to change for their infrastructure or no longer support data synchronisation from Troly and Troly may also replace, terminate or modify the scope or terms under which data synchronisation takes place.
For the sole purpose of connecting and external business system, you understand and agree that Troly may need to share your Confidential Information.
Notwithstanding anything to the contrary, PII pertaining to any person that you or Troly may receive, have access to or collect by virtue of performing this Agreement shall remain the exclusive property of said persons, irrespective of the form on which such PII is received, accessed or collected. With this regard, each party acknowledges and agrees to fully comply with Applicable Laws pertaining to PII and the protection of such information. Moreover, each party agrees to not use PII for any purpose other than performing its obligations under this Agreement, nor to provide access to PII to any third party, except solely on a "need-to-know" basis.
With regards to the detention, collection, and processing of PII, each party agrees to comply with Applicable Law at all times. If said detention, collection or use takes place within the European Economic Area (EEA), the terms of the Standard Contractual Clauses shall apply and are hereby incorporated by reference.
Terms and Conditions