exv10w31a



 





Exhibit 10.31A




Rebate addendum to the




Product License and Distribution Agreement




Between




DoubleTake, Inc. (“Provider”)




and




Dell Product, L.P. (“Dell”)




Dated November 16, 2001



This Addendum (the “Addendum”) entered into on June 13, 2007 (“Effective Date”) between
Provider and Dell supplements and amends the terms of the Product License and Distribution
Agreement between Provider and Dell dated the 16th day of November, 2001 (the
“Agreement”). Except as specifically set forth in this Addendum, all terms and conditions of the
Agreement shall remain in full force and effect. To the extent that there is any conflict or
inconsistency between this Addendum and the Agreement, this Addendum shall govern and control
solely with respect to the subject matter hereof.




Provider and Dell agree:




(1) Defined terms in this Addendum are:





“Rebate Period” means each 12 month period beginning on the Effective Date above and
continuing for 3 years.




“Dell Fiscal Year” means the 12 months period between February of one year and January of
the following year.




* 




“Rebate” means an amount to be paid by Provider to Dell as provided under this Addendum.




“Products” means all Provider and Affiliate products, services, maintenance and renewals
sold in each Worldwide region through the Dell S&P.




“Worldwide” means Dell Americas (US — Latin America — Canada) and Asia Pacific, Japan.
EMEA regions will be excluded from this agreement until Dell Q2, FY09. EMEA will be
included in the definition of Worldwide beginning in Dell Q2, FY09. New Zealand and
Australia will be excluded from this agreement until Dell Q2, FY09. New Zealand and
Australia will be included in the definition of Worldwide beginning in Dell Q2, FY09.




“* Sales” means the total dollar amount invoiced by Provider or an Affiliate either directly
to Dell or to an authorized distributor for the sale of all Products sold in each Worldwide
region through Dell S&P during a *. In the event that Provider acquires an Affiliate
during the Rebate Period, the total dollar amount invoiced by Affiliate after the date of
acquisition will be included in the calculation of *.




“* Rebate” means an amount to be paid by Provider to Dell as provided under this Addendum.
Quarterly Rebate will start from dollar one and apply to all Products sold in each Worldwide
region through Dell S&P.




“* Report” means a report that includes * Sales in each Worldwide region and the
corresponding * Rebate.




“Affiliate” means companies which are under the control of a party, such control being
exercised through the ownership or control, directly or indirectly, of more than fifty
percent (50%) of all of the voting power of the shares entitled to vote for the election of
directors or other governing authority under the Agreement.



* The asterisk denotes that confidential portions of this exhibit have been omitted in reliance on Rule 24b-2 of the Securities Exchange Act of 1934. The confidential portions have been submitted separately to the Securities and Exchange Commission.




 









 






* 



(2) * Rebate Percentage





* Rebates will be calculated in each Worldwide region as the Quarterly Sales for that region
in a * multiplied by the applicable Rebate Percentage below:




* 



(3) * Reporting and Payment





Provider shall submit the * Report which includes a calculation of * Rebate to be paid to
each Worldwide region on such * Sales within thirty (30) days of the end of each * of a
Rebate Period. This report shall be emailed to the contact list in Attachment 1: Contact
list and Payment Methods.




Provider shall pay the * Rebate directly to each Worldwide region within * days of the end of
each *. Dell shall not be obligated to reimburse or pay any rebate amounts previously paid
to Dell by Provider. * Rebate shall be sent to each Worldwide Region as described in
Attachment 1: Contact list and Payment Methods.



(4) Renewal





The provisions of this Addendum shall automatically renew for successive one year terms
unless either party notifies the other in writing of non-renewal at least ninety (90) days
prior to the beginning of a new 12 month term.



(5) Offset of Rebate Amounts





Dell may not offset or reduce any amounts owed to Provider in anticipation of a future rebate
payment under this Addendum.


IN WITNESS WHEREOF, the parties have caused this Addendum to be executed and do each hereby warrant
and represent that their respective signatory whose signature appears below has been and is on the
date of this Addendum duly authorized by all necessary and appropriate corporate action to execute
this Addendum.




	 	 	 	 	 	 	 
	 	 	 	 	Dell Product, L.P.
	 
	 	 	 	 	 	 
	 
	 	 	 	 	 	 
	By:

	 	/s/
Craig Huke

	 	By:
	 	/s/ Scott Crawley

	 

	 	 
	 	 	 	 
	 
	 	 	 	 	 	 
	Name:

	 	Craig Huke

	 	Name:
	 	Scott Crawley

	 

	 	 
	 	 	 	 
	 
	 	 	 	 	 	 
	Title:

	 	Chief Financial Officer

	 	Title:
	 	Director

	 

	 	 
	 	 	 	 
	 
	 	 	 	 	 	 
	Date:

	 	06/15/07

	 	Date:
	 	06/26/07

	 

	 	 
	 	 	 	 





* The asterisk denotes that confidential portions of this exhibit have been omitted in reliance on Rule 24b-2 of the Securities Exchange Act of 1934. The confidential portions have been submitted separately to the Securities and Exchange Commission.