MICRODRIVE LLC.
Influencer Services Agreement
Definitions.
“Applicable Law” means all international, federal, state, provincial, and local laws, regulations, binding regulatory guidance, directives, and governmental requirements applicable to the Services or either party’s performance under this Agreement.
“Client Materials” means all Content, information, materials, and software (including source or object code, performance tracking codes (e.g., UTMs), pixels, or widgets), provided to microDrive by or on behalf of Client in connection with the Services, including any of the foregoing owned, licensed, or controlled by Third Parties.
"Content” means all content, information, and materials (including, all text, images, illustrations, animations, photos, videos, audio, designs, layouts, graphics, artwork, taglines, trademarks, logos, hashtags, information, data and any other creative assets and works of authorship).
“Confidential Information” means information that either party (“Discloser”) discloses to the other party (“Recipient”) under this Agreement, and that is marked as confidential or would normally be considered confidential information under the circumstances. Confidential Information of microDrive includes: (1) non-public information regarding the Services; (2) the identity of the Influencers offered to the Client as part of the Program; (3) the relationship between microDrive and the Influencers, including any financial terms pertaining to such relationship, and (4) Influencer lists and any social or other data related to Influencers that microDrive provides to Client in connection with this Agreement. Confidential Information of Client includes non-public information concerning its business, products, or customers, except to the extent such information is included in the creative briefs in connection with one or more Programs or is otherwise designed to be publicly shared in connection with a Program. “Confidential Information” does not include information that Recipient can document: (1) is independently developed by Recipient; (2) is rightfully given to Recipient by a Third Party without confidentiality obligations; (3) becomes public through no fault of Recipient.
“Influencer” means the individuals who act as social media influencers and perform social media programs.
“Intellectual Property Rights” means all intellectual property any proprietary rights throughout the world (registered or unregistered), including patent rights (including utility models), copyrights, moral rights, trademark and service mark rights, trade secret rights, and any other similar proprietary or intellectual property rights, together with all applications for any of the foregoing.
“microDrive IP” means (1) all pre-existing or independently developed Content, data or assets of microDrive; and (2) generally applicable knowledge, methods, processes, or other ideas gained, created, or generated by microDrive in connection with the Services that does not include Client’s Confidential Information.
“Order” means an ordering document, substantially in the form of Exhibit A, specifying the Services to be provided under this Agreement that is entered into between Client and microDrive, including any addenda and supplements thereto.
“Third Party” means any individual or entity which is not a party to this Agreement.
Services and Obligations.
microDrive Services. Subject to Client’s compliance with this Agreement and the scope of services described in the applicable Order, microDrive will, on a non-exclusive basis, provide the following services to Client (the “Services”): (1) source, manage, and administer influencer marketing programs (each a “Program”); (2) engage and contract with Influencers in order to administer the Program; (3) in connection with each Program, microDrive will cause the Influencers approved by Client for such Program to provide and publish the artistic, literary, dramatic, visual, vocal, musical, and other social influencer materials and content (“Branded Content”) as further described in an Order; (4) provide regular Program status reports as outlined in the applicable Order. Client acknowledges that Influencers are not microDrive’s employees, and that microDrive is neither the agent nor the representative of Influencers.
microDrive Obligations.
microDrive will not contract with any Influencer before Client has reviewed and approved such Influencer (email sufficient) (such approved Influencer’s, the “Participating Influencers”).
microDrive will comply with all applicable content guidelines that Client provides to microDrive in writing with respect to Influencer marketing, provided that Client provides such content guidelines within a reasonable time period (at least 14 days) prior to the launch of a Program.
microDrive will, and will instruct Participating Influencer(s) to, design the Branded Content in accordance with the creative briefs created by the parties.
microDrive will ensure that all Branded Content posted or published by Participating Influencers are in material compliance with FTC Endorsement and Testimonial Guidelines and the Native Advertising Guidelines (the “Guides”). Notwithstanding the foregoing, microDrive will have no liability for deviations from the Guides requested or required by Client.
During the term of applicable Program, microDrive will monitor Participating Influencers' posts to confirm compliance with microDrive ’s instructions. If microDrive identifies that a Participating Influencer did not properly follow microDrive ’s instructions, microDrive will issue corrective instructions and/or take commercially reasonable steps designed to rectify such issue.
Client Obligations.
Client will: (1) cooperate with microDrive with respect to the Services; and (2) promptly respond to any microDrive requests to provide Influencer approvals or other information that are reasonably necessary for microDrive to provide the Services. If microDrive’s performance of its obligations under this Agreement is prevented or delayed by Client’s failure to cooperate with microDrive, or by any other act or omission of Client or its agents, subcontractors, consultants, or employees, microDrive’s resulting failure to perform its obligations will not constitute breach of this Agreement.
Client will obtain all rights, permissions, and licenses necessary to use the Client Materials provided to microDrive or Influencers or used in connection with the Branded Content by microDrive, Influencers, or other Third Parties, including the social media or other platforms to be utilized as part of the Services.
Orders. Each Order is subject to, and hereby incorporated into, this Agreement. If there is a conflict between this Agreement and an Order, this Agreement will control unless the Order states that a specific provision of this Agreement will be superseded by a specific provision of the Order.
Reservation of Rights. microDrive reserves the right to provide any person, entity, or other Third Party, including those that may be in competition with Client, services that are the same or substantially similar to the Services, and to use or otherwise exploit any microDrive IP.
Intellectual Property Rights.
microDrive IP. microDrive and its licensors own the microDrive IP and all Intellectual Property Rights in or associated with (and any derivatives of) the microDrive IP. The microDrive IP is protected by copyright law and other Applicable Law. No ownership rights in the microDrive IP are transferred to Client by this Agreement. Client does not have any rights in or to the microDrive IP except for the limited express rights granted in this Agreement.
License to MicroDrive IP. microDrive hereby grants Client a worldwide, irrevocable, fully paid-up, royalty-free, and fully sublicensable right and license to copy, use, reproduce, modify, adapt, publish, post, translate, create derivative works from, distribute, transmit, display, and otherwise use and exploit all microDrive IP solely as incorporated into Branded Content.
Client Materials. Client and its licensors own all right, title, and interest in and to the Client Materials. No ownership rights in the Client Materials are transferred to MicroDrive by this Agreement. microDrive does not have any rights to the Client Materials except for the limited express rights granted in this Agreement. Client hereby grants microDrive a worldwide, non-exclusive, irrevocable, royalty-free, fully paid, sublicensable license during the Term to host, store, transfer, display, perform, reproduce, modify, create derivative works of, and distribute Client Materials, solely in connection with providing and promoting the Services.
Branded Content. As between microDrive and Client, Client is the sole and exclusive owner of Branded Content, and microDrive hereby irrevocably assigns to Client all right, title, and interest in and to such Branded Content, including all Intellectual Property Rights therein or arising therefrom.
License to Branded Content. Client hereby grants microDrive a worldwide, irrevocable, fully paid-up, royalty-free, and fully sublicensable right and license to copy, use, reproduce, modify, adapt, publish, post, translate, create derivative works from, distribute, transmit, display, and otherwise use and exploit such Branded Content, in whole or in part, (1) in connection with microDrive’s performance of the Services, and (2) for the purpose of promoting microDrive and its services.
Feedback. If Client gives microDrive feedback, comments, or suggestions concerning the Services (collectively, “Feedback”), Client hereby assigns to microDrive all right, title, and interest in and to the Feedback, and microDrive is free to use the Feedback without payment, attribution, or restriction.
Confidentiality. Each party as Recipient will take reasonable precautions to protect Discloser’s Confidential Information and will not use (except as expressly permitted in this Agreement) or divulge to any Third Party any Confidential Information of Discloser. Notwithstanding any provision of this Agreement, (a) Recipient may disclose Discloser’s Confidential Information, in whole or in part, (1) to its employees, officers, directors, consultants and professional advisers (e.g., attorneys, auditors, financial advisors, accountants and other professional representatives) who have a need to know and are legally bound to keep such Confidential Information confidential by confidentiality obligations, or, in the case of professional advisors, are bound by ethical duties, to keep such Confidential Information confidential consistent with the terms of this Agreement; and (2) as required by law, in which case, to the extent permitted by Applicable Law, Recipient will (A) provide Discloser with prior written notification thereof, (B) provide Discloser with the opportunity to contest such disclosure, and (C) use its reasonable efforts to minimize such disclosure; and (b) microDrive as Recipient may share Confidential Information with Influencers as necessary to perform the Services. Recipient is responsible and liable for its employees’ and representatives’ compliance with this Section 4, as if their actions or inactions were an action or inaction of Recipient. The foregoing will not apply with respect to any Confidential Information five years after the disclosure thereof (or, with respect to trade secrets, for so long as such Confidential Information constitutes a trade secret under Applicable Law), or any Confidential Information that is required to be disclosed by Applicable Law.
Fees and Expenses.
Fees. Client will pay microDrive all fees described in the applicable Order (the “Fees”) in accordance with the terms therein. Unless otherwise set out in the applicable Order, Fees will be paid in advance. microDrive may bill Client through an invoice, in which case, unless otherwise specified in an Order, full payment for invoices issued in a given month is due 30 days after the date of the applicable invoice. Unpaid amounts are subject to a finance charge of 1.5% per month on any outstanding balance, or the maximum amount permitted by Applicable Law, whichever is lower, plus all expenses of collection, and may result in immediate termination of access to the Services. Client will pay all Fees in U.S. Dollars. microDrive may suspend access to the Services if Client fails to make any payment due within 10 business days after microDrive provides notice of the failure. Suspension of the Services by microDrive under this section does not relieve Client of its payment obligations under this Agreement. microDrive will not be liable to Client nor to any Third Party for any suspension of the Services pursuant to this section.
Expenses. Client will reimburse microDrive for all reasonable expenses pre-approved by Client in writing including, for any travel related costs by microDrive or Influencers in connection with the Services (“Expenses”).
Taxes. Other than federal and state net income taxes imposed on microDrive, Client will bear all taxes, duties, and other governmental charges relating to the Services
Term; Termination.
Term. The term of this Agreement will commence on the effective date of the first Order between the parties and will continue until terminated in accordance with this Agreement (the “Term”).
Termination for Breach or Insolvency. Either party may terminate this Agreement or an Order, effective upon written notice to the other party, if the other party materially breaches this Agreement (or the Order) and such breach is incapable of cure, or (if such breach capable of cure) the breaching party does not cure such breach within 30 days of receiving notice of it. Either party may terminate this Agreement, effective immediately upon written notice, if the other party files, or has filed against it, a petition for voluntary or involuntary bankruptcy or pursuant to any other insolvency law, makes or seeks to make a general assignment for the benefit of its creditors, or applies for, or consents to, the appointment of a trustee, receiver, or custodian for a substantial part of its property.
Effect of Termination. Termination of this Agreement will automatically terminate all active Orders, but termination of a single Order will not result in termination of this Agreement or any other Orders. Either party’s termination of this Agreement is without prejudice to any other remedies it may have at law or in equity and does not relieve either party of liability for breaches occurring prior to the effective date of termination. Neither party will be liable to the other for damages arising solely as a result of terminating this Agreement in accordance with its terms.
Post-Termination Obligations. Immediately after the termination of the Agreement, in any case within 10 days from the termination of the Agreement, Client will pay all Fees and Expenses due and owing to microDrive. The following sections of this Agreement will survive any termination of this Agreement: Sections 1 (Definitions), 2.F (Reservation of Rights), 3.A (microDrive IP), 3.C (Client Materials), 3.D (Branded Content), 3.E (License to Branded Content), 3.F (Feedback), 4 (Confidentiality), 5 (Fees and Expenses), 6.C (Effect of Termination), 6.D (Post-Termination Obligations), 7 (Warranties and Disclaimers), 8 (Indemnification), 9 (Limitations of Liability), 10 (Arbitration), and 12 (Miscellaneous).
Warranties and Disclaimers.
Mutual Warranties. Each party represents and warrants to the other that: (1) this Agreement has been duly executed and delivered and constitutes a binding agreement enforceable against the party in accordance with its terms; (2) no authorization or approval from any Third Party is required (except, in microDrive’s case, in connection with onboarding applicable Influencers) in connection with the execution, delivery, or performance of this Agreement by the party; and (3) the execution and delivery of this Agreement by the party do not violate Applicable Law or the terms of any other agreement to which it is a party or by which it is otherwise bound.
microDrive Warranties. microDrive represents and warrants to Client that (1) microDrive will provide the Services in a good and workmanlike manner in accordance with industry standards; and (2) the Branded Content (excluding Client Materials incorporated therein) will not, to the best of microDrive’s knowledge, infringe or otherwise violate the copyright, trademark, or right of privacy or publicity rights of any Third Party.
Client Warranties. Client represents and warrants to microDrive that (1) Client has the necessary rights to authorize microDrive and Influencers to use the Client Materials in accordance with this Agreement and such use by microDrive or Influencers of Client Materials does not and will not violate Applicable Law or infringe any Third Party right, including any Intellectual Property Right or privacy right; (2) Client Materials do not contain any obscene, threatening, abusive, harassing, vulgar, defamatory, libelous, infringing or unlawful Content, (3) the Client Materials (including any references to Client’s competitors) will be accurate, substantiated, and not infringe, violate or misappropriate the Intellectual Property Rights or proprietary rights of any Third Party, (4) Client will comply with all applicable Federal, State, and local laws, rules, or regulations including without limitation, the Guides and applicable Third Party terms, conditions, and policies in connection with its activities under this Agreement; and (5) to the extent required by Applicable Law, Client will have and maintain a clear and conspicuous privacy policy at all times in compliance with all applicable laws and will comply with all applicable data privacy or security regulations and any self-regulatory guidelines (e.g. DAA compliance).
Disclaimer. Except for the limited warranties described in this Section 7 (Warranties and Disclaimers), microDrive makes no other express or implied warranties with respect to the Services and specifically disclaims all implied and statutory warranties, including the implied warranties of non-infringement of Third Party rights, merchantability, satisfactory quality, accuracy, profitability, title, and fitness for a particular purpose, and any warranties arising from course of dealing, usage, or trade practice. The Services are provided “as is.” microDrive does not warrant that the Services will satisfy Client’s requirements. microDrive Does not warrant that Services will be error-free or uninterrupted. microDrive does not give any warranty the availability of Influencers beyond the reasonable control of microDrive. microDrive does not provide any warranties or any guarantee with respect to any specific results with respect to Client’s advertising or any data provided by Third Parties or their platforms (e.g. social data, engagement, likes, followers etc.). Neither microDrive nor Influencer(s) will incur any liability resulting from the creative aspects of any Branded Content so long as such Branded Content reflects the instructions in the creative briefs mutually agreed by the parties. Some jurisdictions do not allow the exclusion or limitation of warranties, so the above limitation or exclusion may not apply to Client.
Indemnification.
By microDrive.
Defense. At Client’s option and request, microDrive will defend Client and its officers, directors, employees, agents, service providers, licensors, and affiliates (collectively, the “Client Indemnified Parties”) from any actual or threatened Third Party claim, proceeding, suit, or inquiry arising out of or based on microDrive’s breach of Section 7.B.2 (microDrive Warranties) (each a “Client Indemnifiable Claim”). If Client requests microDrive to defend it from any Client Indemnifiable Claim, Client will: (1) give microDrive prompt written notice of the Client Indemnifiable Claim; (2) grant microDrive full and complete control over the defense and settlement of the Client Indemnifiable Claim; (3) provide assistance in connection with the defense and settlement of the Client Indemnifiable Claim as microDrive may reasonably request; and (4) comply with any settlement or court order made in connection with the Client Indemnifiable Claim. Notwithstanding the previous sentence, microDrive will not enter into any settlement that involves an admission of guilt or liability of any Client Indemnified Party without Client’s prior written consent. Client may participate in the defense of a Client Indemnifiable Claim at its own expense and with counsel of its own choosing.
Indemnification. microDrive will indemnify the Client Indemnified Parties from and pay: (1) all damages, costs, and attorneys’ fees finally awarded against the Client Indemnified Parties in any Client Indemnifiable Claim; (2) all out-of-pocket costs (including attorneys’ fees) reasonably incurred by the Client Indemnified Parties in connection with the defense of a Client Indemnifiable Claim (other than attorneys’ fees and costs incurred without microDrive’s consent after microDrive has accepted defense of the Client Indemnifiable Claim); and (3) all amounts that microDrive agrees to pay to any Third Party to settle any Client Indemnifiable Claim.
Exceptions. microDrive will have no obligation for any infringement or misappropriation relating to the Services or Branded Content to the extent that it arises out of or is based upon: (1) Client Materials, (2) use of the Services in combination with other products or services; (3) designs, requirements, or specifications required by or provided by Client; (4) use of the microDrive IP by Client outside the scope of the license granted to Client; (5) any modification of the Services or Branded Content not made or authorized in writing by microDrive; or (6) Client’s breach of this Agreement. This Section 8.A states microDrive’s sole and exclusive liability, and Client’s sole and exclusive remedy, for the actual or alleged infringement or misappropriation of any Third Party intellectual property right by the Services or Branded Content.
By Client.
Defense. At microDrive’s option and request, Client will defend microDrive and its officers, directors, employees, agents, service providers, licensors, and affiliates (collectively, the “microDrive Indemnified Parties”) from any actual or threatened Third Party claim, proceeding, suit, or inquiry arising out of or based on (1) Client’s breach of Section 7 (Warranties and Disclaimers); or (2) the use of Client Materials by microDrive or Influencers, except where such use breaches this Agreement (each a “microDrive Indemnifiable Claim”). If microDrive requests Client to defend it from any microDrive Indemnifiable Claim, microDrive will: (1) give Client prompt written notice of the microDrive Indemnifiable Claim; (2) grant Client full and complete control over the defense and settlement of the microDrive Indemnifiable Claim; (3) provide assistance in connection with the defense and settlement of the microDrive Indemnifiable Claim as Client may reasonably request; and (4) comply with any settlement or court order made in connection with the microDrive Indemnifiable Claim. Notwithstanding the previous sentence, Client will not enter into any settlement that involves an admission of guilt or liability of any microDrive Indemnified Party without microDrive’s prior written consent. microDrive may participate in the defense of a microDrive Indemnifiable Claim at its own expense and with counsel of its own choosing.
Indemnification. Client will indemnify the microDrive Indemnified Parties from and pay: (1) all damages, costs, and attorneys’ fees finally awarded against the microDrive Indemnified Parties in any microDrive Indemnifiable Claim; (2) all out-of-pocket costs (including attorneys’ fees) reasonably incurred by the microDrive Indemnified Parties in connection with the defense of a microDrive Indemnifiable Claim (other than attorneys’ fees and costs incurred without Client’s consent after Client has accepted defense of the microDrive Indemnifiable Claim); and (3) all amounts that Client agrees to pay to any Third Party to settle any microDrive Indemnifiable Claim.
Limitations of Liability.
Exclusion of Damages. Neither microDrive nor its suppliers, officers, affiliates, representatives, contractors, or employees will be liable to Client for any consequential, incidental, special, or exemplary damages arising out of or related to this Agreement, including lost profits, loss of business, or loss of data, even if microDrive is apprised of the likelihood of such damages occurring.
Damages Cap. microDrive’s total liability of all kinds arising out of or related to this Agreement (including warranty claims), regardless of the forum and regardless of whether any action or claim is based on contract, tort, or otherwise, will not exceed the total Fees paid or payable by Client to microDrive during the six months immediately preceding the claim (determined as of the date of any final judgment in an action).
Applicability. Some jurisdictions do not allow the exclusion or limitation of damages. This Section 9 (Limitations of Liability) will apply solely to the extent not prohibited under Applicable Law.
Arbitration. Any claim, dispute, or controversy between the parties arising out of or relating to this Agreement which cannot be satisfactorily settled by the parties will be finally and exclusively settled by binding arbitration (“Arbitration”) upon the written request of either party. The Arbitration will be administered under the American Arbitration Association’s Commercial Dispute Resolution Procedures in force when the notice of arbitration is submitted (the “Rules”). The Arbitration will be conducted by one arbitrator selected in accordance with the Rules. The seat of the Arbitration will be in Dallas, Texas. The Arbitration will be conducted in English. The Arbitration award will be final and binding upon the parties, and judgment upon such award may be entered in any court having jurisdiction. The Arbitration proceedings and any award will be each party’s Confidential Information. The arbitrator’s award may include compensatory damages against either party but the arbitrator will not be authorized to and will not award punitive damages against either party. The parties agree to keep confidential the existence of the arbitration, the arbitral proceedings, the submissions made by the parties, and the decisions made by the arbitrator, including its awards, except as required by Applicable Law and to the extent not already in the public domain. Nothing in this Agreement will be deemed to waive, preclude, or otherwise limit the right of either party to: (A) seek injunctive relief in a court of law; or (B) to file suit in a court of law to address an intellectual property infringement claim.
Miscellaneous.
Governing Law. This Agreement is governed by Texas law without reference to its conflict of laws principles. The United Nations Convention on Contracts for the International Sale of Goods will not apply to this Agreement. Subject to Section 10 (Arbitration), all claims arising under this Agreement will be litigated exclusively in the federal or state courts of Dallas, Texas. The parties submit to the jurisdiction in those courts. In any proceeding to enforce rights under this Agreement, the prevailing party will be entitled to recover costs and attorneys’ fees.
Non-solicitation.
Service Providers. Client will not, during the Term and for one (1) year thereafter, directly or indirectly (including using recruiters or agencies) recruit or solicit any of microDrive’s employees or independent contractors (collectively, “Service Providers”) who are involved in the performance of the Services.
Influencers. Client will not, during the Program Term (as defined in the applicable SOW) and for six (6) months thereafter, directly or indirectly (including using recruiters or agencies) recruit or solicit any Influencer(s). For the avoidance of doubt, this Section 11.B(2) includes all Influencers that microDrive presents to Client, including those who are not assigned to contribute to a Program. Notwithstanding the foregoing, if an Influencer participates in a Client Affiliate Program during the term of a Program and Client desires for such Influencer to continue in such Affiliate Program following the term of a Program, such Influencer may do so subject to microDrive’s prior written approval (email sufficient) in each instance. For the purposes of this Section 11.B(2) “Affiliate Program” means an affiliate marketing program that enables an Influencer to earn commission payment(s) based on Client sales driven through one or more social media platforms via the applicable Influencer’s inclusion of unique tracking codes or links provided by Client.
Liquidated Damages. If Client breaches its obligations under this Section 11.B, microDrive, in addition to any other remedies, is entitled to liquidated damages of an amount equivalent to 50% of the total annual compensation of each Service Provider or Influencer recruited or solicited by the microDrive, for each violation of this Section 11.B (“Liquidated Damages”). The parties intend that the Liquidated Damages constitute compensation, and not a penalty. The parties acknowledge and agree that the harm to microDrive caused by Client’s breach of this Section 11.B is impossible to accurately estimate as of the Effective Date, and that the Liquidated Damages are a reasonable estimate of the anticipated or actual harm that might arise from such breach.
Injunctive Relief. If either party breaches Section 4 (Confidentiality), the other party may suffer irreparable harm, and monetary damages may be inadequate to compensate the non-breaching party. Accordingly, either party may, in addition to any other remedies available, seek injunctive or other equitable relief in response to any such breach.
Further Assurances. Each party will execute and deliver any documents or instruments, and take any further actions that are reasonably required, to provide the other party the full benefits and rights described in this Agreement.
Assignment. Client may not assign this Agreement or Client’s rights (or delegate its performance obligations) without microDrive’s prior written consent, and any attempt to do so is void. microDrive may assign this Agreement and/or microDrive’s rights (and/or delegate its performance) without Client’s consent. This Agreement binds and benefits the parties’ permitted successors and assigns.
Publicity. microDrive may publicly list Client as a member of microDrive’s Client portfolio and use Client’s name, image, and likeness for marketing or promotional purposes, including on microDrive’s website, promotional materials, and communications with potential investors. Subject to Client’s prior written approval (email sufficient), microDrive may issue press releases and publish or make available case studies concerning the Program and the Services provided under this Agreement.
Severability. If any provision of this Agreement or portion of a provision is invalid, illegal, or unenforceable, the rest of this Agreement will remain in effect.
No Waiver. Neither party will be treated as having waived any rights by not exercising (or delaying the exercise of) any rights under this Agreement.
Entire Agreement. This Agreement (including any Exhibits and Orders) constitutes the entire agreement and supersedes any other agreement of the parties relating to its subject matter (including any nondisclosure agreements entered into in anticipation of this Agreement). Any additional provisions (including any “click wrap” terms, terms referenced via URL, or otherwise) in any purchase order or other document provided by Client will be void and have no binding effect on microDrive, except as described in Section 2.D (Orders). No usage of trade or other regular practice or method of dealing between the parties will be used to modify, interpret, or supplement the terms of this Agreement.
Amendment. This Agreement may only be amended in a writing signed by both parties and stating that it is amending this Agreement.
Relationship. The parties are independent contractors of each other. Each party is responsible for instructing and managing its employees and personnel. This Agreement does not create any agency, partnership, or joint venture relationship between the parties.
No Third-Party Beneficiaries. There are no third-party beneficiaries of this Agreement.
Subcontractors. microDrive may use subcontractors or other Third Parties to perform its obligations under this Agreement, but microDrive will remain responsible for all such obligations.
Notices. All notices under this Agreement must be in writing and will be considered given: (1) upon delivery, if delivered personally or by internationally recognized courier service; (2) three business days after being sent, if delivered by U.S. registered or certified mail (return receipt requested); or (3) upon acknowledgement of receipt, if delivered by email. Either party may update its notice address by notice to the other party in accordance with this Section. To be effective, all notices to microDrive must be sent to:
Microdrive LLC.
4925 N O’Connor Rd suite 200
Irving Texas 75038
Email: notices@microdrive.com
Force Majeure. microDrive will not be liable for any delay or failure to perform under this Agreement as a result of any cause or condition beyond microDrive’s reasonable control, so long as microDrive uses reasonable efforts to avoid or remove those causes of delay or non-performance.
Interpretation. If microDrive provides a translation of the English language version of this Agreement, the translation is provided solely for convenience, and the English version will prevail. Any heading, caption, or section title contained in this Agreement is for convenience only and does not define or explain any provision. Any use of the term “including” or any variations should be construed as if followed by the phrase “without limitation.”
Counterparts. This Agreement may be executed in counterparts (which may be exchanged by email). Each counterpart should be considered an original, but all counterparts together should constitute the same Agreement.