INTRODUCTION

Thank you for registering your to become a BCAP XCELERATE program partner in Australia (“territory”).   By submitting an application form on www.bcap.com.au, you acknowledge that you have read these terms and agree to be bound by them if we approve your application.  These terms will apply from the date (“effective date”) that we give you notice that we have approved your application.

 In these terms, unless the context implies otherwise, “you”, “your” and “yours” refers to the applicant for the XCELERATE Partner program named in the registration form submitted on the bcap.com.au website, and “BCAP”, “we”, “us” and “ours” refers to [BCAP Pty Limited] (trading as Business Continuity Asia Pacific) ABN 15 118 574 566.

1       GRANT OF DISTRIBUTION RIGHTS

1.1    We grant you a non-exclusive license to distribute and sublicense copies of Double-Take’s Software Products (“Double-Take”) to end users in the territory on the following terms and conditions. 

1.2    You may not distribute Double-Take, outside of the territory without our written consent, or knowingly distribute Double-Take to any sub-distributor, customer or similar who may distribute the Software outside of the territory. 

2       YOUR OBLIGATIONS

2.1    Advertising and Promotion: You will actively market and promote Double-Take to your customers in a commercially reasonable manner, including listing Double-Take in your catalogues and transmitting promotional material about Double-Take to your customers from time to time.

2.2    You will abide by our instructions, including any style guidelines we give you, in using any trademarks, service marks, or trade names of BCAP or Double-Take (“Marks”).  You agree to give us samples of any materials using the marks or referring to Double-Take when we request it.  We reserve the right to limit or stop your use of the Marks. 

2.3    Our right to review your promotional materials does not limit your obligation to comply with all relevant laws and is not an approval of your promotional content.  You may only make representations regarding Double-Take or BCAP that are consistent with our promotional and technical materials or if we give you written approval to do so.

2.4    Delivery of software to end users: You agree to deliver the Software to customers either in the sealed packages we send to you (“Product Packages”) or by direct installation onto your customers’ equipment using the procedures we notify you of.

2.5    You acknowledge that an end user license agreement between BCAP/Double-Take Inc. and end users (the “Software License”) will be reproduced on or included in the Product Packages, and that each Product Package will contain an appropriate customer registration card (the “Registration Card”).  BCAP may modify the License and/or the Card at any time. 

2.6    If you install software directly for a customer, you will deliver a copy of the License to that customer and ensure that the customer reads and consents to the Software License when
opening the Product Packages or prior to your installation of the Software.  You are responsible for ensuring that customers return the Registration Card to us.  You may not change the License or Card in any way.

2.7    Sales and Technical Training: We will provide (for a fee) certified sales and technical training to you related to Double-Take and any other of our other products.  We will also provide free sales training (content and timing at our discretion).  You will ensure your staff undertake the training required to maintain appropriate technical certification in Double-Take in order to maintain its your partner status.

2.8    We may at our option provide (for free, at our premises, yours or online) twice-yearly sales training to all your staff members involved in marketing Double-Take.  You agree to make your staff available two times per year for between two and four hours, for this purpose.   Making staff available for this training is a condition of maintaining your partner status and discounts.

2.9    Conduct of Business: You will conduct your business at your own account, in your own name, and not as an agent, employee, or partner of BCAP.   You agree to conduct your business in a manner that reflects favourably at all times on Double-Take and BCAP’s goodwill and reputation and will not make any false or misleading representations with regard to us, our affiliates or Double-Take.

3       OUR OBLIGATIONS

3.1    Training and resources: We will use our reasonable endeavours to:

(a)        provide you with marketing materials, competitive information, webinars and other resources (together the “Partner Pack”) in electronic  form for help you market Double-Take.  The Partner Pack is available at (www.business-continuity.com.au/xcelerate); and

(b)        schedule training sessions (both webinars and physical seminars) to update your staff/clients’ product knowledge and to allow your staff to undertake training to achieve the certification needed to maintain your Partner status.

3.2    End User Technical support: We will provide technical support to the service levels and on the terms and conditions on our website (www.business-continuity.com.au/support) from time to time (we will publish any amendments to the terms / service levels on our website – changes are effective 14 days from publication).

3.3    We will give you notice of the introduction of any update or upgrade to Double-Take for distribution to end users.  We will make updates and/or upgrades available to you at the same time as we do so for other Partners near your region.  We reserve the right to make an update or upgrade available at no additional charge or as a separately-priced item.

3.4    Partner Technical support: We will make trained technical support engineers available to your technical contact(s) to answer technical questions and address potential errors in Double-Take. Engineers may be available by telephone, fax, electronic mail or other means at our discretion.

3.5    We will use reasonable endeavours to create fixes for errors you report that we are able to reproduce using the current version of Double-Take software, including all required Patches and Updates. You should familiarise yourself with and follow our support service levels agreement – on our website.

3.6    Account manager: We will appoint a staff member to assist you in your efforts to sell the Software (we may change this person at its discretion). 

4       ORDERS, DELIVERY AND ACCEPTANCE

4.1    Orders and delivery: You will order Software using procedures we inform you of from time to time.  All orders are subject to approval by us.  Orders shall be subject to these terms and conditions and the terms and conditions provided with any product quote or other communication from us at order time.

4.2    Freight and delivery charges are at your cost.  Subject to availability, we will do our best to ship within 3 days after the order has been accepted and payment received.

4.3    Acceptance and defective units: You acknowledge that you have fully examined and tested Double-Take in connection with your plans to distribute the Software and that the Software is fully acceptable to you.

4.4    We will replace or repair any Product Packages shipped that are defective, provided that the you notify us of each such defective Product Package not more than (90) days after shipment (we will pay reasonable freight charges for the return of the defective Product packages to us).  You will pay freight for the return of non-defective Product Package to BCAP. 

4.5    A “defective” Product Package for the purpose of this clause is one which does not meet an express warranty in these terms.  We are not responsible for any claim, loss, or consequential damages resulting from any defective product or packaging.

4.6    Product returns and restocking:  While you continue to maintain Partner status, you may return Product Packages containing the Software to BCAP without imposition of re-stocking charges subject to the following conditions:

(a)        You must submit its request for return to us in writing at least 14 days in advance of proposed return, indicating in the request the reason, identity, quantity, order number and invoice date of the each Double-Take License to be returned;

(b)        The Product Packages returned must be new, resalable, and in their original, unopened packaging;

(c)        You must submit to us, concurrently with its return request, a non-cancellable order for the Software equal to or greater than the value of the Product Packages being returned; and

(d)        The version of the Software being returned must be no older than the version immediately preceding the then current version.

5       PRICING AND PAYMENT

5.1    Pricing and terms: You will pay the fees and charges and on the terms and conditions in each quote for products or services rendered pursuant to these terms.  Unless otherwise stated on a quote, pricing and terms will be adjusted in accordance with clause 5.4.

5.2    Fees payable for DoubleTake (per copy) shall be at the retail price quoted at the time of purchase (“Recommended Retail Price” or “RRP”) less the relevant discount set out in clause 6.        

5.3    Professional services: You may promote and sell our installation and other professional services.  You will involve us in the scoping and pricing of all professional services before a written quotation is supplied to you.

5.4    Changes: We may change prices and terms and conditions from time to time at our discretion and without prior written notice to you. If we raise a price and you show, within 30 days of such increase, that you had a pending quote to an end user at the lower price as of the date of such increase, then we will honour the lower price for such prospective sales for a period of thirty (30) days from the date of the price increase.

5.5    Payment method and details: You agree to submit payments by cheque or direct credit as described below:

Accounts Receivable Info
Phone:  +61 2 86670570
Fax:      +61 2 93838658
Email:   accounts@bcap.com.au

5.5
Attn: Accounts Receivable
Business Continuity Asia Pacific (BCAP Pty Ltd)
PO Box 497, Cannon Hill 4172, Brisbane 4000,
Queensland, Australia.

Please email accounts receivable (accounts@bcap.com.au) for direct credit account details.

6       PARTNER STATUS AND DISCOUNTS

6.1    The three levels of Partner status are Gold, Diamond and Platinum – each qualifies you for a different discount level and access to varied resources.  Your status depends on your quarterly revenue performance and the number of trained Double-Take technicians as described in the Partner Discounts Schedule forwarded to you when your Partner status is confirmed.

6.2    All orders are to be placed at their designated discount structure.  Unless specified otherwise in the Schedule, you will proceed at first instance with Gold Partner status until you have achieved the number of trained engineers quarterly revenue required to qualify for Diamond or Platinum status. 

6.3    You are expected to maintain your agreed status level. If the status level is not maintained and falls short of the expectation, for two consecutive Quarters, your status will be reviewed.  Unless agreed action is taken by you, your status will revert to an appropriate lower level

6.4    Maintenance and Renewals: Support and Maintenance services for Double-Take purchased in advance on the same order as licenses will contribute to your quarterly order value and relevant rebates will apply.  However, annual maintenance renewals will not contribute to your Quarterly order value or the relevant rebate schemes.

7       INTELLECTUAL PROPERTY

7.1    Reservation of rights: All rights and licenses of any kind in Double-Tale not expressly granted herein are reserved exclusively to us.  You acknowledge that you have no right whatsoever, whether express or by any course of conduct:

(a)        to use, review or access the source code for Double-Take; or

(b)        to copy Double-Take (except as necessary for internal backup and archival purposes).

7.2    You acknowledge and agree that all right title and interest in all reports, designs, specifications and other materials and all rights in all media made and/or developed under these terms directed to the enhancement or improvement of the Software, whether prepared by you or us in relation to these terms, shall be our sole and exclusive property.

7.3    Rights to other intellectual property: You do not acquire any right to any trade names, service marks or trademarks used by us or any affiliates (collectively “Marks”), or our copyrights, patent rights, commercial symbols, trade secrets, goodwill, or any other form of intellectual or commercial property or those of our affiliates.  You agree that you will not use Marks, property or rights in any manner, except as permitted under these terms.  You acknowledge that we are the owner or licensee of the Marks we use relating to Double-Take and related services, and agree that you will not assert conflicting or competing rights to such Marks.

7.4    You may not remove or alter any copyright, patent, trademark, confidential, or proprietary notices, incorporated in, marked on or affixed to Software Packaging, diskettes, manuals, and/or literature by BCAP, nor alter the manner in which they are presented on such materials.

7.5    You agree to use all proprietary notices necessary to maintain full protection of all of our copyright, patent, Marks or trade secrets rights in the Double-Take.

7.6    Confidential Information: For the purposes of this clause, "Confidential Information" means all information relating to the business, computer systems or affairs of you and us, our respective representatives or customers, which is or has been:

(a)           disclosed under or in connection with these terms, whether orally, electronically, in writing or otherwise; or

(b)           learnt or acquired in the performance of obligations under these terms;

(c)           other than any such information which:

(i)         was in the public domain at the time of its provision;

(ii)        became part of the public domain after its provision, otherwise than through a disclosure by the receiver of confidential information or any person that the receiver has disclosed that information to; or

(iii)       is or came lawfully into the possession of the receiver otherwise than as a result of a disclosure in breach of an obligation of confidence.

7.7    You and we each acknowledge that Confidential Information is valuable to each party and undertakes to keep the Confidential Information of the other party secret and to protect and preserve the confidential nature and secrecy of the Confidential Information of the other party.  Neither you nor we will disclose Confidential Information of the other party to any person except as permitted by these terms or required by law.

7.8    Permitted disclosures: You or we may disclose Confidential Information of the other party on a need to know basis to employees or agents, if required to perform obligations under these terms; legal advisers in order to advise a party in relation to its rights under these terms; or where disclosure is required by law.

7.9    Survival of obligations of confidentiality: The obligations of confidentiality imposed by this agreement survive the termination of this agreement.

8       WARRANTIES AND INDEMNITIES

8.1    Limited Warranty: We warrant to you that

(a)           the physical diskette(s) or CD-ROM(s) and documentation containing Double-Take will be free from defects in materials and workmanship for a period of 90 days;

(b)           We are the owner, or the lawful licensee of Double-Take; and

(c)           We have the unrestricted right and authority to appoint you as partner and undertake our obligations on these terms.

—the above warranties specifically exclude defects resulting from accidents, abuses, unauthorized repairs, modifications, enhancements, or misapplications.

8.2    We may modify the Warranty in clause 9.1 in our discretion from time to time by giving you 14 days notice to this effect.

8.3    EXCEPT AS EXPRESSLY STATED IN THIS AGREEMENT, WE MAKE NO REPRESENTATIONS, WARRANTIES, OR GUARANTEES, EITHER EXPRESS OR IMPLIED, ORAL OR WRITTEN, TO YOU OR ANY OF YOUR CUSTOMERS, WITH RESPECT TO DOUBLE-TAKE AND ANY SERVICES COVERED BY OR FURNISHED PURSUANT TO THESE TERMS, INCLUDING WITHOUT LIMITATION ANY IMPLIED WARRANTY (A) OF MERCHANTABILITY, (B) OF FITNESS FOR A PARTICULAR PURPOSE, OR (C) ARISING FROM COURSE OF PERFORMANCE, COURSE OF DEALING, OR USAGE OF TRADE.  YOU AND YOUR CUSTOMERS RECEIVE ALL SOFTWARE AND OTHER MATERIALS HEREUNDER "AS IS".  YOU AND YOUR CUSTOMERS ARE SOLELY RESPONSIBLE FOR THE SELECTION OF THE LICENSED SOFTWARE TO ACHIEVE THEIR INTENDED RESULTS AND FOR THE RESULTS ACTUALLY OBTAINED.

8.4    Indemnity: We will defend and indemnify you in connection with any and all claims, actions, losses, costs and expenses relating to infringement of any third party intellectual property rights by Double-Take in the form provided by us to you, provided that that this indemnification obligation shall be effective only if:  you have made all payments required by these term, have given prompt notice of the claim and permitted us an opportunity to defend, have reasonably cooperated in the defence of the claim, and the infringement does not result from your modification of Double-Take or its incorporation with other software, hardware, or apparatus.

8.5    Partner Indemnity: You agree to defend and indemnify us, and hold us harmless, in connection with any and all claims, actions, proceedings, liabilities, judgments, damages, orders, losses, costs and expenses of any kind (including reasonable attorneys fees and legal costs) relating to:

(a)        representations by you to third parties regarding the functions, compatibility or capabilities of Double-Take; and

(b)        actions against us by any third parties (including but not limited to your customers, end users, retailers, partners, joint ventures, suppliers and competitors) in connection with your copying, packaging, distributing, advertising or installing of Double-Take.

9       TERM AND TERMINATION

9.1    Term: These terms commence on the date we issue confirmation of your partner status (“effective date”) and continue until terminated under this agreement. 

9.2    Each year, we will review the your discount status and may re-level you if appropriate.  e.g. if you have not made your annual commitment, we, at our own discretion, may re-level you to Platinum status.

9.3    General Termination: Either party may terminate by giving written notice if the other party materially violates any material term and fails to remedy such violation within thirty (30) days after written notice thereof.    If you cause termination because of a material breach, any monies owed to us for previously placed orders shall become due and payable to us on termination.  

9.4    We may terminate this Agreement without cause on thirty (30) days notice, in which event all Software Packages you ordered before the date of delivery of such notice will remain deliverable and payable as provided in these terms. 

9.5    Any outstanding balance owed to us is payable immediately on termination under these terms, however arising.

9.6    Insolvency: Either party may terminate this Agreement upon written notice if the other party commits an act of bankruptcy, becomes the subject of an involuntary bankruptcy or insolvency proceeding and fails to discharge or terminate such proceeding within sixty days, voluntarily files for bankruptcy, administration or liquidation, becomes insolvent, makes any assignment for the benefit of creditors, or ceases business operations.

9.7    Return of Materials: If your partnership status is revoked or cancelled for whatever reason, you must immediately stop using and return to as all copies of Double-Take, marketing materials and related documents in your possession, or destroy all copies Double-Take and provide us with written confirmation that you have taken such actions. 

9.8    You must also immediately cease to identify yourself as an authorised Partner for us or otherwise affiliated in any manner with us or Double-Take.

10     LIMITATION

10.1  IN NO EVENT WILL EITHER YOU OR WE BE LIABLE TO THE OTHER FOR SPECIAL, INDIRECT, INCIDENTAL OR CONSEQUENTIAL DAMAGES IN RELATION TO THESE TERMS, EVEN IF SUCH PARTY HAS BEEN ADVISED OF THE POSSIBILITY OF SUCH DAMAGES.

11     GENERAL

11.1  Entire Agreement and changes: You and we each acknowledge that they have not been induced to enter into this Agreement by any representation or warranty not in these terms.  These terms contain the entire agreement between you and us with respect to the subject matter of these terms and supersede all existing agreements and all oral, written or other communications between you and us concerning its subject matter.  We may modify these terms at any time by giving you fourteen (14) days written notice.

11.2  Assignment: You may not assign your rights under these terms without written consent from us.  Any assignment by you without consent is null and void.  We may freely assign our rights under these terms in connection with an internal restructure or any sale or transfer by us of substantially all of our business.  You agree to execute any documents required to effect such assignment.

11.3  Non-Solicitation: You acknowledge that our employees are highly important to the success of our company. From the effective date and for one (1) year after termination or expiration of your appointment, you will not solicit, whether as an employee or as an independent contractor, any of our employees or contractors, except where such solicitation results from a general recruitment effort such as an advertisement in a newspaper, trade publication or electronic equivalent.  

11.4  Enforceability: If any of these terms (or part of any term) is held to be invalid, illegal or unenforceable, the validity, legality or enforceability of the remainder of these terms shall not in any way be affected or impaired thereby.

11.5  Law and Forum: These terms shall be governed in all respects by the laws of the Queensland, Australia.  The parties submit to the exclusive jurisdiction of the courts of Queensland, Australia.

11.6  Notices: Any notice to be given under this agreement to you may be sent by email to the address provided to us during your registration or from which the you have last sent email correspondence, and will be deemed to have been received by you within 48 hours of sending if no notice of non-receipt has been received by the sender.

11.7  Non-Waiver: The failure of either of us to insist upon strict performance of any term does not constitute a waiver of future violations of that term.

11.8  Authority: I hereby represent and warrant that I am authorized by the person/company named in the registration form relating to these terms, to consent to these terms on their behalf.

11.9  Survival: The provisions of these terms relating to confidentiality, indemnities, and return of materials shall survive any termination or expiration of these terms for three (3) years.

11.10   No Third Party Rights: These terms do not create any rights in any third parties, except assigns, successors or heirs expressly permitted hereunder.

11.11   Taxes: You shall pay any and all applicable sales, use, or excise taxes, or any other charges or duties levied by federal, state, city, county, or other governmental authority.   You will supply us with any appropriate exemption certificates.

 

END