Partner Terms & Conditions

Please read these terms and conditions carefully and completely before applying to become a Partner of criticaldata Aust. (hereafter referred to as “criticaldata”).

Terms & Conditions of the criticaldata Partner Agreement

The following purposes and intent of such an Agreement are to be understood as:

You desire to acquire customers for criticaldata's Internet-based backup services (hereinafter "Services") on the terms and conditions set forth below; and have already represented to criticaldata that you have the necessary expertise to undertake and perform your duties hereunder;
criticaldata is willing to pay you a commission for each customer signed up by you under that Agreement.
criticaldata wishes to retain the right to modify or eliminate its Partner program (hereinafter "Program") at any time, and you understand and acknowledges criticaldata's right to do so.

For interpretation of these terms and conditions, and any contract created by your acknowledgement of acceptance thereof, the use of words indicating the singular number shall include the plural and vice versa, and the use of words indicating the masculine gender include the feminine and neuter genders and vice versa. If you are entering into this agreement on behalf of a company or organisation, the words "you", "your" and "yourself" where used herein shall refer to the company or organisation you represent and its employees, agents, directors, officers and representatives who are involved in any way in the criticaldata Partner Program.

Definitions
1. "criticaldata Marks" means any of the trademarks, service marks, trade names, designs, logos, images and/or other proprietary names or marks owned by and used by criticaldata.
2. "criticaldata Site" means any website owned, maintained or controlled from time to time by or on behalf of criticaldata and any entity controlled by or under common control with criticaldata.
3. "Link" means a URL hyperlinked to text, a graphic, a search field or another information object on Your website, and includes a text link or a banner.
4. "Referral" means when a user of Your website (other than the website owner, webmaster, or an employee or agent of the website owner) properly identified as such, subscribes to, or otherwise makes a purchase from, the criticaldata Site.
5. "Term" means the term of this Agreement as defined in Section 9 hereof.
6. "Your website" means the website maintained by you as indicated on your Partner Program application form under "Web Addr.".
Enrolment in Partner Program
1. To enrol in the criticaldata Partner Program, you must submit a completed Partner Program application via the criticaldata Site at;
  
  https://backup.critical-data.net.au/makePartner.jsp.
  
  criticaldata will review your application and will notify you within 7 days to advise you whether your application has been accepted or rejected. criticaldata may reject your application if we determine that Your website is unsuitable for the criticaldata Partner Program for any reason. If your application is rejected, you may reapply at any time, and your resubmitted application will be reviewed and considered.
2. By submitting the Partner Program application form, you acknowledge that you have evaluated independently the desirability of participating in the criticaldata Partner Program and are not relying on any guarantee or statement other than any contained in this Agreement.
criticaldata's Rights and Responsibilities
1. criticaldata will provide you with graphical and textual Links that will enable users of Your website to click through to the criticaldata Site, as set forth in more detail in Section 5 hereof.
2. For each customer who signs up for the Services for a term of twelve (12) months, and contingent upon the installation of the Services and payment by the customer of at least two (2) months of Services, criticaldata shall pay you a commission in accordance with the terms and conditions set out in Schedule A hereto.
3. criticaldata further agrees to pay an ongoing monthly commission (Referral Bonus) of 20% for every referral from you which results in a purchase/subscription from the criticaldata Site based on the listed scheduled fees. In respect of purchases/subscriptions based on less than the listed scheduled fee, your referral bonus shall be payable according to the sliding scale as set out in Schedule B hereto. Payments of the Referral Bonus are made at the end of the month and based on the net amount of the client purchases, after deduction of any applicable charge-backs, discounts or refunds. All payments are made in Australian (AUD) Dollars, based on the exchange rate at the date the cheque/transfer is issued. All referral relationships must be identified when the Referral subscribes as a monthly subscriber on the criticaldata Site. Your Partner Account must be fully registered and approved through completion of this agreement before any Referral Bonuses can be tracked and paid. The final amount of the Referral Bonus is calculated on the net invoice to the referral, exclusive of any applicable sales tax or goods & services tax. No Referral Bonus will be paid on referrals who themselves are claiming a Referral Bonus or who are themselves signing up for criticaldata Partner Program.
4. There is no limit on the amount of Referral Bonuses to be paid out. There is no maximum Referral Bonus payout during the term of the agreement, but payment of all Referral Bonuses shall cease immediately upon termination of the Agreement for whatever cause. Payouts are made to Partners with an account balance of a minimum of AUD $50. All payouts shall be made in Australian Dollars by direct bank transfer. You shall be responsible for informing criticaldata of your full and accurate bank details, sufficient to enable criticaldata to make such transfer. criticaldata shall in no way, or to any extent be liable for loss to, or non-payment of, the Partner, in the event you fail to provide the necessary, correct details to criticaldata, to enable criticaldata to make such transfer. Commission rates will be set solely by criticaldata in its discretion and may be changed at any time upon notice by criticaldata which will be posted on the criticaldata Site at http://www.critical-data.net.au/partners/partners.html.
5. criticaldata has the right, in its sole discretion, to modify any of the terms & conditions contained in this agreement at any time by posting a notice of change, together with a revised agreement on this web site. If you continue to participate in our Partners program following the posting of a notice of change and revised agreement, you will be deemed to have accepted the revisions to the agreement.
6. criticaldata is, and during the Term hereof will remain, solely responsible for the development, maintenance and operation of the criticaldata Site
Your Rights and Responsibilities
1. You will observe the highest level of integrity and fair dealing and will do nothing to discredit, dishonour, reflect adversely upon, or in any way injure the reputation or business of criticaldata. You specifically acknowledge that any promotion of criticaldata's business in any way involving spam, or an attempt to spam, will result in an immediate and automatic termination of any Agreement between you and criticaldata, whereupon any and all monies which may be owing by criticaldata to you shall immediately be forfeit to criticaldata, by way of liquidated damages, but whereby such forfeiture shall not preclude any action by criticaldata against you for any further damages of any nature whatsoever. Furthermore, should criticaldata suffer any loss or damage by reason of your actions in connection with the agreement, you hereby indemnify fully, and agree to hold harmless, criticaldata against any suits claims, demands or actions in respect thereof.
2. To remain in good standing under the Program, you must acquire a minimum of 1 new Unit per month. A "Unit" is defined as $50 of recurring monthly revenue ("RMR") criticaldata reserves the right to modify the minimum requirements in its sole discretion, upon 30 days’ prior notice to you.
3. You are, and during the Term hereof will remain, solely responsible for the development, maintenance and operation of any website you may wish to use in connection with your marketing activities under the Agreement and for all materials and content that appear on such website. criticaldata reserve the right to refuse acceptance of Your website into the criticaldata Partner Program for any reason, including without limitation, the posting of any content which is libellous, defamatory, obscene, pornographic, abusive or overly violent, or that promotes illegal activity or behaviour or discrimination or harassment based on age, disability, gender, national origin, race or sexual orientation, or in criticaldata's sole determination, content which adversely impacts criticaldata's reputation or violates any law or regulation.
4. In the event you wish to use a website to assist your marketing efforts under the Agreement, you will select any Qualifying Links you wish to display from the Qualifying Links provided by criticaldata on the criticaldata Site and will place the selected Qualifying Links on the website you utilise, so as to enable users of Your website to click on the Qualifying Links to click through to the criticaldata Site.
5. In the event you choose to utilise a web site, you will display such Qualifying Links on such website in the form, manner and presentation described in the Links Usage Procedures attached as Schedule "A" to this Agreement and in accordance with such additional instructions as may be prescribed by criticaldata. You understand that criticaldata may modify the Links Usage Procedures and/or the Usage Instructions at any time. You will not reformat, resize, or otherwise modify the Qualifying Links without the prior written consent of criticaldata. You will not be entitled to a commission for Referrals of Qualifying Links that have been reformatted or otherwise modified without such prior written consent.
6. Should you utilise a website, you agree not to make any representations, warranties or other statements concerning criticaldata, the criticaldata Site, any of criticaldata's products or services, or criticaldata Site policies, except as expressly authorised in this Agreement or by criticaldata in writing. You are responsible for notifying criticaldata of any malfunctioning of the Qualifying Links or any other problems that arise with respect to your participation in the Partner Program. criticaldata will respond promptly to all concerns upon such notification by you.
7. You will not solicit any criticaldata advertiser or client without the prior written approval of criticaldata.
8. You will not create, publish or distribute any item that contains references to criticaldata or criticaldata's business or your affiliation with criticaldata without first submitting such item to criticaldata and receiving criticaldata's written consent.
9. In the event you wish to utilise a website as an adjunct to your marketing activities under the Agreement, and as long as you remain a Partner, you agree not use metatags or hidden keywords in the HTML code of Your website, and not to bid on keywords or key phrases or otherwise advertise or participate in any pay-per-click campaign with any Internet search engine or any other business, with respect to products or services, or the marketing of products or services, competitive with those of criticaldata.
10. You acknowledge that any customers executing contracts with criticaldata for the Services shall be customers of criticaldata, and you agree not to solicit such customers on behalf of yourself or any other entity for services competitive with criticaldata's or attempt to disconnect such customers from criticaldata's services. In the event that you contact a customer in violation of this Section, criticaldata will suffer immeasurable and irreparable harm. Therefore, you agree that in addition to any other damage which may be available to criticaldata (including financial and injunctive relief), this Agreement may be terminated and criticaldata's obligation to pay you any commissions hereunder will cease upon such termination.
Ownership and Licenses
1. The parties to the Partner Agreement shall retain all ownership of and right, title and interest in and to their respective names, logos, trademarks, service marks, copyrights and proprietary technology, including, without limitation, those names, logos, trademarks, service marks, copyrights and proprietary technology currently used or which may be developed and/or used by such party in the future.
2. criticaldata hereby grants you during the Term, subject to the terms and conditions of this Agreement, including the Links Usage Procedures set forth in Schedule "A" hereto, a revocable, non-exclusive, worldwide, royalty-free license to use, reproduce, display and transmit the Qualifying Links and the accompanying criticaldata Marks on your website, or any other marketing material or means you may employ, solely for the purpose of creating links from Your website to the criticaldata Site. Except as expressly set forth in this Agreement or permitted by applicable law, you may not copy, distribute, modify, reverse engineer, or create derivative works from criticaldata Marks or the criticaldata Site. You may not sublicense, assign or transfer any such licenses for the use of criticaldata Marks, and any attempt to sublicense, assign or transfer the same will be deemed void.
3. During the term of the agreement, you will not adopt, use, or register, or apply for registration of, whether as a corporate name, trade mark, service mark or other indication of origin, any of the criticaldata Marks, service marks or trade names, or any word or mark that is confusingly similar to the criticaldata Marks in any jurisdiction.
4. You hereby grant criticaldata during the term of the agreement a revocable, non-exclusive, worldwide, royalty-free license to use, reproduce and transmit any graphic or banner ad submitted by you solely for co-branding purposes or as a return link from the criticaldata Site to Your website.
criticaldata's Representations and Warranties

criticaldata represents and warrants that it has all the requisite corporate power and authority to enter into this Agreement and to perform its obligations hereunder. criticaldata does not warrant that the criticaldata Site or anything contained thereon will meet your requirements or that performance or operation of the criticaldata Site will be uninterrupted or error-free. criticaldata AND ITS LICENSORS MAKE NO OTHER WARRANTY OF ANY KIND, WHETHER EXPRESS, IMPLIED, STATUTORY OR OTHERWISE, INCLUDING WITHOUT LIMITATION WARRANTIES OF MERCHANTABILITY, FITNESS FOR A PARTICULAR USE OR PURPOSE, COURSE OF DEALING OR PERFORMANCE AND NON-INFRINGEMENT.
Your Representations and Warranties:
1. if you are an individual, you are 18 years of age or older and have valid legal capacity to enter into this Agreement and to perform your obligations hereunder, or if you are the representative of a company, you have all of the requisite corporate power and authority to enter into this Agreement on behalf of the company and the company has requisite corporate power and authority to perform its obligations hereunder, and, in either case, no other consent, approval or authority is necessary or required to bind you as an individual or as a company to all the terms and conditions hereof;
2. you have read this Agreement and you understand and agree to all of its terms & conditions;
3. the content on any website you may utilise, and/or the technology used by you in connection with such website and/or the means by which users access such website;
  1. are owned or validly licensed for use by you or, alternatively, are in the public domain;
  2. do not constitute or contain defamatory, libellous, obscene, pornographic or excessively violent material or promote illegal activity or behaviour or discrimination or harassment based on age, disability, gender, national origin, race or sexual orientation;
  3. do not infringe or violate any copyright, patent, trademark or other intellectual property right, or otherwise violate or breach any duty toward or rights, including without limitation, rights of privacy and publicity, of any other person;
  4. do not result in any consumer fraud, product liability, breach of contract to which you are a party or cause injury to any third party; and
4. you will not create a means for benefiting from this Agreement by soliciting any customer of criticaldata, or by bidding on keywords or key phrases or otherwise advertising or participating in any pay-per-click campaign with any Internet search engine or any other business with respect to products or services, or the marketing of products or services, competitive with those of criticaldata.
Term and Termination

The Term of this Agreement will commence on the date on which criticaldata accepts your completed Partner Program application and will continue in full force and effect until terminated pursuant to this Section. Either party shall have the right, in its sole discretion for any reason whatsoever, to terminate this Agreement at any time by giving the other party 30 days written notice; provided, however, that criticaldata shall have the right to terminate this Agreement immediately in the event it deems the content on Your website objectionable for any of the reasons set forth in Section 5. Upon termination by either party, the licenses set forth in Section 7 shall automatically terminate, and within 7 day(s) after termination, you will ensure that all Qualifying Links and criticaldata Marks are removed from any website you employ, or may have employed, and all files or other items containing the Qualifying Links and/or the criticaldata Marks have been deleted and erased from the memory of your computers and those of Your website servers. Sections 7, 8, 9, 10, 11, and 12 will survive the termination or expiration of this Agreement. Further, you will be entitled to no additional commissions for Referrals generated by You after the effective date of the termination or expiration of this Agreement.
Indemnity and Limitation of Liability

You agree to defend, indemnify and hold criticaldata harmless from and against any and all third party claims, damages, liabilities, costs and expenses (including reasonable legal fees and expenses) directly or indirectly arising out of or from or relating to your engagement as a Partner under this Agreement, including the operation of or content on any website you may have utilised, and any breach of any of your warranties hereunder or any representations you make on behalf of criticaldata without its written authorization. EXCEPT FOR LIABILITY ARISING OUT OF OR RELATED TO BREACH OF THE CONFIDENTIALITY PROVISIONS HEREIN AND SECTION 7.2 HEREOF, OR WITH RESPECT TO A MATTER COVERED BY THE ABOVE INDEMNITY, OR RESULTING FROM GROSS NEGLIGENCE OR WILLFUL MISCONDUCT BY EITHER PARTY, NEITHER PARTY OR ANY OF criticaldata's VENDORS OR AFFILIATES WILL BE LIABLE FOR ANY LOST REVENUES OR PROFITS OR COSTS OF PROCUREMENT OF SUBSTITUTE GOODS OR SERVICES, OR FOR ANY INDIRECT, SPECIAL, INCIDENTAL, EXEMPLARY, PUNITIVE OR CONSEQUENTIAL DAMAGES, INCLUDING DAMAGES FOR LOST DATA, HOWEVER CAUSED AND UNDER ANY THEORY OF LIABILITY, INCLUDING BUT NOT LIMITED TO CONTRACT, PRODUCTS LIABILITY, STRICT LIABILITY AND NEGLIGENCE, AND WHETHER OR NOT SUCH PARTY WAS OR SHOULD HAVE BEEN AWARE OR ADVISED OF THE POSSIBILITY OF SUCH DAMAGE. IN NO EVENT WILL criticaldata's LIABILITY ARISING OUT OF THIS AGREEMENT EXCEED THE NET AMOUNT PAYABLE TO YOU UNDER THIS AGREEMENT.
Confidentiality

During the term of this Agreement, you may have access to certain confidential or proprietary information of criticaldata, which information a reasonable person would consider confidential or which is marked as "confidential" or "proprietary" by criticaldata ("Confidential Information"). Confidential Information does not include information that is generally known and available, or in the public domain, through no fault of yours. You agree:
1. not to disclose any Confidential Information to any third parties;
2. not to use any Confidential Information for any purpose whatsoever except as may be required in order to carry out your obligations and responsibilities under this Agreement; and
3. to keep the Confidential Information confidential using at least the same degree of care you use to protect your own confidential information.
You acknowledge and agree that due to the unique nature of the Confidential Information, there can be no adequate remedy at law for any breach of your obligations hereunder, that any such breach may allow you or a third party to unfairly compete with criticaldata resulting in irreparable harm to criticaldata and, therefore, that upon any such breach or threat thereof, criticaldata shall be entitled to injunctive and other appropriate equitable relief in addition to whatever remedies it may have at law, without the necessity of proving damages. In addition, if the non-breaching party prevails in any legal dispute hereunder, it shall be entitled to collect its reasonable legal fees and expenses. All obligations under this Section shall survive for a period of two years after termination of the Agreement.
General Provisions
1. criticaldata may modify any of the terms and conditions contained in the Agreement at any time and from time to time. criticaldata will attempt in good faith to notify you via e-mail of any such modification and will post a change notice on the criticaldata Site. If a modification is unacceptable, you may terminate the Agreement by giving notice as provided in Section 8. If you do not provide criticaldata with notice of your termination within 7 days after any modifications are posted and continue to display the Qualifying Links on any website you may choose to utilise in your activities under the Agreement, then you will be deemed to have accepted the modifications.
2. Each party shall act as an independent contractor of the other and this Agreement will not be construed to create any partnership, joint venture, agency or employment relationship between them. Neither party will have the right or authority to create any obligation or responsibility on the other's behalf or to obligate or bind the other in any respect.
3. Neither party shall be liable hereunder by reason of any failure or delay in the performance of its obligations on account of strikes, lock-outs, labour disputes, shortages of materials, riots, insurrection, fires, flood, storm, explosions, earthquakes, hurricanes, blizzards, other acts of God, war, governmental action, or any other cause that is beyond the reasonable control of such party.
4. The Agreement shall be governed by and construed in accordance with the laws of the state of Queensland and, in the event of your acceptance of these terms, you hereby attorn to the jurisdiction of the courts of Queensland.
5. Any notice to be given under this Agreement shall be in writing and shall be deemed delivered if delivered by e-mail: if to you, to you at the e-mail address provided in your Partner Program application form; and if to criticaldata, by email to our partnerships department.
6. You may not assign this Agreement, in whole or in part, by operation of law or otherwise, without the prior written consent of criticaldata.
7. The Agreement and any schedules attached thereto will constitute the entire agreement between the parties to this Agreement pertaining to the subject matter thereof and supersede all prior and contemporaneous agreements, understandings, negotiations and discussions, whether oral or written, of the parties and there are no warranties, representations or other agreements between the parties in connection with the subject matter of this Agreement except as specifically set forth herein.
8. Any provisions of the Agreement which are or may be rendered invalid, unenforceable or illegal, shall be ineffective only to the extent of such invalidity, unenforceability or illegality, without affecting the validity, enforceability or legality of the remaining provisions of the Agreement, it being the intent and purpose that this Agreement should survive and be valid to the maximum extent permitted by applicable law.
9. No consent or waiver, express or implied, by a party of any breach or default by the other party in the performance of such other party of its obligations under the Agreement shall be deemed or construed to be a consent or waiver to or of any other breach or default in the performance by such other party of the same or any other obligations under such Agreement of the other party. Failure on the part of a party to complain of any act or failure to act of another party or to declare another party in default, irrespective of how long such failure continues, shall not constitute a waiver by the first mentioned party of its rights under the Agreement hereby formed. The remedies specified in the Agreement are in addition to any other remedies that may be available at law or in equity.

SCHEDULE "A"

criticaldata LINKS USAGE PROCEDURES

You may use any buttons, banners or text links ("Qualifying Links") solely for the purpose authorised herein by criticaldata and only in compliance with the specifications, directions, information and standards supplied by criticaldata and modified by criticaldata from time to time.
You agree to comply with any requirements established by criticaldata concerning the style, design, display and use of the Qualifying Links; to correctly use the trademark symbol ™ or registration symbol ® with every use of the trademarks, service marks and/or trade names as part of the Qualifying Links as instructed by criticaldata; to use the registration symbol ® upon receiving notice from criticaldata of registration of any trademarks, service marks and/or trade names that are part of the Qualifying Links.
You may not alter the Qualifying Links in any manner, or use the Qualifying Links in any manner that, without limiting the foregoing, may dilute, diminish, or otherwise damage criticaldata's rights and goodwill in any criticaldata trademark, trade name and/or service mark that are part of the Qualifying Links.
You may not use the Qualifying Links in any manner that implies sponsorship or endorsement by criticaldata of services or products offered on your website or on any other website or by any other party.
If the Qualifying Links are used online they should not be animated in any way, except as otherwise agreed by criticaldata.

SCHEDULE "B"

DISCOUNTED PURCHASES/SUBSCRIPTIONS COMMISSION SCALES

For all sales made at a price other than the listed scheduled fee, a commission will apply as follows;