Material Services Agreement between South Florida Motorsports, LLC and EzFill Holdings, Inc

Exhibit 10.1

MASTER SERVICES AGREEMENT

This MASTER SERVICES AGREEMENT (together with the exhibits and other attachments referenced herein, this “Agreement”), dated as of January 1, 2023 (the “Effective Date”), is by and between EZFILL HOLDINGS, INC., a Delaware corporation with offices located at 2999 N.E. 191st Street, Suite 500, Aventura, Florida 33180 (“Contractor”), and SOUTH FLORIDA MOTORSPORTS, LLC, a Delaware limited liability company with offices located at 347 Don Shula Drive, Miami Gardens, Florida 33056 (“SFM”). Contractor and SFM may be referred to herein individually as a “party” and collectively as the “parties.”

Background

SFM is the promoter of the Formula 1 Miami Grand Prix (the “Event”), which event is currently scheduled to be held in May of each year of the Term (as defined below) at the Miami International Autodrome located on the premises surrounding Hard Rock Stadium, 347 Don Shula Drive, Miami Gardens, Florida 33056, including, but not limited to, any off-site premises associated with the Event such as parking lots and satellite locations (the “Event Site”).

In consideration of the mutual promises and covenants set forth herein, and for other good and valuable consideration, the receipt and sufficiency of which is hereby acknowledged, the parties agree as follows:

IN WITNESS WHEREOF, SFM and Contractor have executed this Master Services Agreement as of the Effective Date.

BY CONTRACTOR:			BY SFM:
EZFILL HOLDINGS, INC., a Delaware corporation			SOUTH FLORIDA MOTORSPORTS, LLC, a Delaware limited liability company
By:	/s/ Michael McConnell		By:	/s/ Tyler Epp
Name:	Michael McConnell		Name:	Tyler Epp
Title:	CEO		Title:	President
Date:	01/18/2023		Date:	01/19/2023

EXHIBIT A

[FORM OF] STATEMENT OF WORK

Project Name: ____________________________

THIS STATEMENT OF WORK (“SOW”) dated as of                           , 202__ (the “SOW Effective Date”), by and between EZFILL HOLDINGS, INC. (“Contractor”) and SOUTH FLORIDA MOTORSPORTS, LLC (“SFM”), is executed pursuant to the Master Services Agreement executed between SFM and Contractor dated as of January 1, 2023 (the “Agreement”), into which this SOW is incorporated by reference. Capitalized terms used but not defined herein shall have the meanings ascribed to them in the Agreement.

IN WITNESS WHEREOF, the parties cause this STATEMENT OF WORK to be executed as of the SOW Effective Date.

EZFILL HOLDINGS, INC., a Delaware corporation			SOUTH FLORIDA MOTORSPORTS, LLC, a Delaware limited liability company
By:	[DO NOT SIGN]		By:	[DO NOT SIGN]
Name:			Name:
Title:			Title:
Date:			Date:

EXHIBIT B

[FORM OF] CHANGE ORDER

Project Name: ____________________________

THIS CHANGE ORDER (“Change Order”) dated as of                                , 202__ (the “Change Order Effective Date”), by and between EZFILL HOLDINGS, INC. (“Contractor”) and SOUTH FLORIDA MOTORSPORTS, LLC (“SFM”), is executed pursuant to the Master Services Agreement executed between SFM and Contractor dated as of January 1, 2023 (the “Agreement”), and Statement of Work dated                            , 202__, into which this Change Order is incorporated by reference. Capitalized terms used but not defined herein shall have the meanings ascribed to them in the Agreement.

IN WITNESS WHEREOF, the parties cause this CHANGE ORDER to be executed as of the Change Order Effective Date.

EZFILL HOLDINGS, INC., a Delaware corporation			SOUTH FLORIDA MOTORSPORTS, LLC, a Delaware limited liability company
By:	[DO NOT SIGN]		By:	[DO NOT SIGN]
Name:			Name:
Title:			Title:
Date:			Date:

EXHIBIT C

STANDARD TERMS AND CONDITIONS

1. Use of Marks. Contractor shall not, by this Agreement, obtain any right to use the names, trademarks, logos, or other proprietary designations of SFM, the Formula 1 Miami Grand Prix, the Miami International Autodrome, South Florida Stadium LLC d/b/a Hard Rock Stadium, Miami Dolphins, Ltd. d/b/a Miami Dolphins, Formula One World Championship Limited (“FOWC”), Formula One Marketing Limited (“FOML”), the Fédération Internationale de l’Automobile (“FIA”), or their respective affiliates (collectively the “Marks”). Contractor shall not have the right to use, refer to, or incorporate in marketing or other materials the Marks in any manner without the prior written approval of SFM, which approval may be granted or withheld in SFM’s sole discretion in each instance. In no event shall Contractor make any public announcements, issue any press announcements, publish any case studies, publicly list SFM as a client, or take any other action identifying or publicizing Contractor’s provision of the Services without the prior written approval of SFM, which approval may be granted or withheld in SFM’s sole discretion. In the event that SFM approves any public announcements, press announcements, or other public-facing communications requested by Contractor (e.g., a press release in connection with any Form 8-K filings), Contractor shall promptly incorporate any reasonable changes requested by SFM prior to release of the announcement and/or communication.

2. Recordings. Contractor acknowledges and agrees that SFM may, at its sole discretion, televise, videotape, take photographs, write about, or otherwise record the Event or other events hosted in connection with this Agreement, which may include depictions of the Services provided by Contractor and its Workers (including Contractor’s and any Workers’ names, likenesses, images, activities, and/or products at such events and any participants at such events) (“Recordings”) and use any such Recordings at any time for commercial, promotional, or any other purpose without having to compensate Contractor. Contractor hereby consents to the commercial exploitation of such Recordings notwithstanding the fact that Contractor or its Workers may be referred to or visible therein. In addition, Contractor hereby grants SFM the non-exclusive, royalty-free right to use the name, logo, likeness, and other depictions of Contractor in advertising, promotional, and other collateral materials and merchandise. Any rights not expressly granted to Contractor under this Agreement (including, but not limited to, in connection with the Event) are expressly reserved to SFM.

3. Work Product. Contractor acknowledges that SFM shall have the right to provide any other entity with the right to use or transfer the Work Product without any additional compensation to Contractor or any Worker. Contractor hereby agrees to assign, and does hereby assign, to SFM all worldwide rights, title, and interest in and to the Work Product, including, without limitation, all copyrights, trademark rights and other proprietary rights therein. During and after the Term, Contractor shall, and shall cause the Workers to, from time to time as and when requested by SFM and at SFM’s expense, but without further consideration to Contractor or Workers, (a) execute all papers and documents and perform all other acts necessary or appropriate, in the discretion of SFM, to evidence or further document SFM’s ownership of the Work Product and the above-mentioned proprietary rights therein; and (b) assist SFM in obtaining, registering, maintaining, and defending for SFM’s benefit (which defense shall be at SFM’s expense except to the extent such defense is made in connection with any claim or other event covered by Contractor’s indemnity obligations herein), all copyrights, trademark rights, and other proprietary rights in the Work Product except as otherwise provided herein in any and all countries as SFM may determine in its sole discretion. Contractor represents and warrants to SFM that Contractor has no proprietary right in or to any Work Product and that none of the Workers has any proprietary right in or to any Work Product. SFM will have access, at all times, to all Work Product. Contractor will, and will cause its Workers to, produce such documentation, reports and other deliverables hereunder, as are necessary to enable SFM to utilize the Work Product and confirm that Contractor is properly and fully performing its duties hereunder. Upon request by SFM, Contractor shall deliver to SFM all Work Product and related documentation and deliverables.

4. Representations and Warranties. Contractor represents and warrants to SFM that (a) Contractor has the full power, authority, and legal right to enter into and perform this Agreement and the person signing this Agreement on behalf of Contractor has been properly authorized and empowered to sign on behalf of Contractor; (b) this Agreement is a legal, valid, and binding obligation of Contractor, enforceable against Contractor in accordance with its terms; (c) the Services to be performed for SFM by Contractor will not violate or infringe any right of any person or entity; (d) Contractor has all necessary authorizations, licenses, and permits required to perform the Services and to conduct its business; (e) Contractor will perform the Services and any other obligations hereunder in a professional and diligent manner and will avoid any conflicts of interest in the performance of its obligations; (f) Contractor has not taken and will not take any action that interferes in any manner with any of SFM’s rights under this Agreement or that is otherwise inconsistent with the terms of this Agreement; and (g) Contractor will perform all Services in accordance with all applicable laws, rules, regulations, and self-regulatory practices, including, but not limited to, those related to privacy, data protection, and the prohibition of employment of persons not eligible to be lawfully employed, forced labor, child labor, and discrimination. Contractor hereby represents and warrants that Contractor has read and reviewed the Formula 1 Statement of Commitment to Respect for Human Rights found at https://www.formula1.com/en/toolbar/statement-of-commitment-to-respect-for-human-rights.html, and that Contractor’s business practices are consistent with said Statement of Commitment. Contractor hereby represents, warrants, and covenants to SFM that in performance of the services hereunder, Contractor (i) has complied and will comply with all applicable laws governing bribery, money laundering, and other corrupt practices, including the U.S. Foreign Corrupt Practices Act, and (ii) has not, and will not, directly or indirectly, offer, give, pay, promise to pay, or authorize the payment of any bribes, kickbacks, influence payments, or other unlawful or improper inducements, in whatever form (including gifts, travel, entertainment, contributions, or anything else of value). SFM may, in addition to its other remedies, immediately terminate this Agreement in the event that SFM receives information which it reasonably determines to be evidence of a breach by Contractor of this Section.

5. SFM Data. All SFM Data (as defined below) shall be the sole and exclusive property of SFM. Contractor shall implement and maintain administrative, physical, and technical safeguards that prevent any unauthorized collection, use or disclosure of, or access to Confidential Information, SFM Data, or SFM’s networks. In addition to and without limiting Contractor’s obligations hereunder, without SFM’s prior written approval, Contractor shall not, and shall not permit others to: (a) use SFM Data other than as necessary to perform the Services under this Agreement; (b) disclose, sell, assign, lease or otherwise provide SFM Data to third parties, including Contractor’s third-party service providers; or (c) commercially exploit any SFM Data. Without limiting the foregoing, no ownership rights in SFM Data shall accrue to Contractor by reason of entering, deleting, modifying, or otherwise processing any SFM Data. “SFM Data” means any data and information that: (1) is contained in any of SFM’s networks; (2) is input in any of SFM’s networks by Contractor; (3) results from Contractor’s use of SFM’s networks or equipment; and/or (4) is derived from any of the foregoing, including, without limitation, all lists or other records containing any such information, even if such information is aggregated or anonymized. Contractor represents and warrants that the Services do not violate any laws, rules, regulations, or self-regulatory practices including, but not limited to, those related to privacy and data protection. In the event of any loss or corruption of SFM Data, Contractor shall use best efforts to restore the lost or corrupted data from the latest backup of such data maintained by Contractor in accordance with its archival procedures, which procedures shall be consistent with best industry practices. Contractor shall destroy SFM Data in Contractor’s possession promptly upon request from SFM. In the event Contractor collects or receives SFM Data that includes PII, Contractor shall (x) notify SFM of the collection of all PII; (y) restrict access to such PII to those Contractor personnel who have a need to access it in order to enable Contractor to perform its obligations under this Agreement, and (z) store and transmit it securely, in accordance with best industry security practices. “PII” means any information which by itself or in combination with other information can identify, locate, or contact an individual. Contractor shall immediately notify SFM of any actual or reasonably likely unauthorized access, use, loss, or disclosure of any Confidential Information, SFM Data, Work Product, or customer information (a “Security Breach”) and take commercially reasonable actions to assist SFM in investigating, remedying, and taking any other action SFM deems necessary. Without limiting any other indemnification obligations set forth herein, Contractor shall indemnify, defend, and hold harmless each of the Indemnified SFM Parties from and against any and all Claims arising from, relating to, or in connection with any Security Breach directly or indirectly caused by the acts or omissions of Contractor, including any failure to maintain the administrative, physical, and technical safeguards required by this Agreement or any other applicable agreement.

6. Workers. Contractor may not assign any subcontractors to perform any Services for SFM without SFM’s prior written consent. Contractor shall not be relieved of its duties and obligations hereunder by virtue of any subcontract and shall remain as fully responsible for the acts and omissions of its subcontractors as Contractor is for its own acts and omissions and those of its agents, servants, and employees. Contractor shall cause its Workers to perform the Services under the general direction of the project manager designated by SFM. However, Contractor shall determine, in Contractor’s sole discretion, the manner and means by which such Services shall be performed. Contractor shall provide sufficient supervision of all Workers in the performance of the Services. Contractor shall remain responsible for the services and work product of all Workers and their compliance with the terms of this Agreement and with all applicable laws, regulations, codes, and standards. All Workers shall be appropriately dressed and equipped, at Contractor’s sole expense, to fulfill the Services. For the avoidance of doubt, Contractor shall supply and equip its Workers with all tools, hardware, and components to properly transport, deliver, and transfer/pump/dispense fuel. Contractor shall require the Workers to follow SFM’s rules and policies relating to security of, access to, or use of the Event Site. All Workers shall be and remain employees and/or independent contractors of Contractor at all times during their performance of Services for SFM and shall not be deemed employees of SFM.

7. Taxes. Contractor shall bear and be solely responsible for paying all salaries, wages, and fees to its Workers and for withholding and paying all applicable payroll taxes, employer contributions, benefits, and the like. Contractor shall be responsible for paying any and all income and other taxes and withholdings assessed, arising from, or otherwise related to any amounts paid by SFM to Contractor under this Agreement and in connection with Contractor’s performance of the Services hereunder (except for taxes on SFM’s net income). Contractor acknowledges and agrees that it is the sole responsibility of Contractor to report as income its compensation received from SFM and to make the requisite tax filings and payments to the appropriate sovereign, international, federal, state, or local tax authorities. Contractor shall be solely responsible for all taxes, stamp duties, license fees, and other such levies imposed by tax authorities outside the United States. Contractor represents and warrants that, by virtue of this Agreement, SFM shall not have any obligation to withhold any part of Contractor’s compensation for any reason. Accordingly, no part of Contractor’s compensation shall be subject to withholding by SFM for any reason, including, but not limited to, the payment of social security, unemployment, disability insurance, or any other similar state or federal tax obligations. However, in the event that SFM is held responsible for withholding or paying any amount to any person, entity, governmental agency, or authority in connection with any payments by SFM to Contractor, SFM shall have the right to pay or withhold such amounts on future payments (if any) to Contractor and/or to recover from Contractor any such amounts that such person, entity, governmental agency, or authority claims should have been paid or withheld, including any interest and/or penalties. Without limiting any other indemnification obligations set forth herein, Contractor agrees to indemnify and hold harmless the Indemnified SFM Parties from and against any and all Claims arising from, relating to, or in connection with any of the matters identified in this section.

8. Non-Conforming Services and Additional Services.

a. Contractor shall promptly correct any Services identified by SFM as failing to conform to this Agreement, any SOW or any Change Order. Contractor shall bear all costs of correcting such non-conforming Services. If Contractor does not correct such non-conforming Services within a reasonable time following written notice from SFM, SFM may terminate this Agreement, and Contractor shall be responsible for the cost of any substitute, remediation, or corrective services incurred by SFM.

b. Any changes in the Services (including, but not limited to, additional Services), the fees or compensation, and/or time periods in required to perform the Services under this Agreement, including any SOWs and/or any Change Orders, shall only be made upon the execution of an SOW and/or Change Order (as applicable) signed by both SFM and Contractor. If Contractor proceeds with such changes or additions to the Services without obtaining an SOW and/or Change Order (as applicable), it shall be assumed that Contractor has performed such additional Services at no additional charge or fees. The requirement for SOWs and/or Change Orders (as applicable) under this Section cannot be waived and it is a condition precedent to Contractor being entitled to any payment for any additional Services performed. Additional Services performed by Contractor without authorization of any SOW and/or Change Order (as applicable) will not entitle Contractor to an increase in fees or compensation or an extension of the date in which completion of the Services shall occur.

9. Risk of Loss. Contractor hereby waives, for Contractor and its Workers (to the fullest extent that Contractor may waive such rights), and their respective heirs, personal representatives, successors and assigns, any and all rights that Contractor or any Worker may have to any recovery from any of the Indemnified SFM Parties, whether for damages, costs and expenses incurred, or otherwise, if Contractor or its Worker sustains any personal injury or property damage in performing the Services under this Agreement, to the extent the personal injury or property damage does not arise from the gross negligence or willful misconduct of such Indemnified SFM Party. Contractor and its Workers hereby acknowledge and voluntarily assume the risk of injury, including the potential for serious injury or death to Contractor, its Workers, and/or any other party, arising from their use of any equipment, machines, vehicles, or other property owned or maintained by the Indemnified SFM Parties (the “Equipment”) in connection with the Services performed by Contractor under this Agreement. Contractor shall ensure that any Worker using the Equipment is properly trained, and to the extent applicable, licensed and/or certified, to operate such Equipment. Contractor is responsible for any loss or damage to the Equipment caused by its Workers, whether by accident, misuse, neglect, or otherwise. Contractor shall pay the Indemnified SFM Parties, on demand, all costs incurred for making any repairs to the Equipment; provided, however, that in the event such damage to the Equipment is so severe that repair would be impractical, Contractor shall pay to the Indemnified SFM Parties, on demand, the cost of replacing the Equipment.

10. Notices. All formal notices, demands, and other communications between the parties required or appropriate hereunder (including, but not limited to, notice of termination and similar one-time notices of similar importance, but not including routine day-to-day communications between the parties in the course of performing their obligations or exercising their rights under this Agreement) shall be made in writing and delivered either by (i) personal delivery, (ii) certified or registered mail, postage prepaid, or (iii) recognized overnight courier service which delivers only upon the signed receipt of the addressee, which in any case shall be delivered to the following addresses: if to Contractor, at the address set forth on the first page of this Agreement; and if to SFM, South Florida Motorsports, LLC, 347 Don Shula Drive, Miami Gardens, Florida 33056, Attn: Legal Department, with copy via electronic mail (not to constitute legal notice) to ***@***. Notice shall be deemed delivered (y) on the date of delivery if notice is given via personal delivery or recognized overnight courier service, and (z) on the third (3rd) day after the postmark date if mailed by certified or registered mail, postage prepaid.

11. Events and Governing Rules. Each party’s rights and obligations hereunder, as well as any work schedules and other logistics relating to the Services performed by Contractor, shall at all times be subject to the requirements of parties holding events at the Event Site. In addition, this Agreement shall be subject to the then-current rules and regulations of the FOWC, FOML, and/or the FIA (collectively, “Governing Rules”) applicable to the Services and Contractor’s work hereunder. To the extent the Services, Work Product, and/or Contractor’s work interfere with the staging or presentation of any events or otherwise conflict with Governing Rules, Contractor shall cooperate in good faith with SFM’s requests to mitigate or cease such interference and/or conflicts.

12. Accommodations and Venues in Miami-Dade County. To the extent Contractor requires the use of hotel rooms (or similar transient rentals), dining destinations, restaurants, theaters, performing arts venues, and/or event facilities and venues in connection with the Event and/or the Services, if commercially feasible, Contractor shall use transient rentals and other venues located in Miami-Dade County, Florida.

13. Miscellaneous.

a. Entire Agreement. This Agreement, including any SOWs and/or any Change Orders, constitutes the sole and entire agreement between the parties hereto relating to the subject matter contained herein and supersedes all prior and contemporaneous oral or written agreements, statements, commitments, understandings, negotiations, and representations of the parties.

b. No Amendments. Except as expressly provided herein, this Agreement may not be changed or amended except by a writing executed by both parties, it being understood that any differing terms or conditions that may appear in any purchase order, invoice, confirmation, or similar document issued by Contractor, even if signed by the parties after the Effective Date hereof, shall have no force or effect, and the terms and conditions of this Agreement shall control all such additional documents. In no event shall SFM’s use of Contractor’s or any third-party billing portal or program, or any terms or conditions thereof, operate to substitute, amend, or supplement the terms and conditions of this Agreement, and unless specifically agreed to in writing by SFM (and subject to additional costs that SFM may charge Contractor in its discretion), SFM shall not be required to bill Contractor using Contractor’s or any third-party billing portal or program.

c. Assignment. No party may assign this Agreement without the prior written consent of the other party hereto, except that SFM may freely assign this Agreement without Contractor’s consent to (a) an Affiliate of SFM (as defined below); or (b) any third party together with the business to which it pertains. No assignment by Contractor of any right or obligation hereunder shall be effective and any such attempt shall be null and void. This Agreement shall inure to the benefit of and be binding upon SFM and Contractor and their respective successors and assigns (to the extent this Agreement is assigned as permitted hereunder).

d. Affiliates. An Affiliate (as defined below) of SFM may, by executing an attachment and agreeing to be bound by the provisions of this Agreement, receive Services by Contractor, and Contractor and such Affiliate(s) will be bound by the provisions of this Agreement as if they were an original party hereto. Each agreement or SOW between any Affiliate and Contractor will be a separate agreement for which such Affiliate (and not SFM) will be fully liable for any obligations listed in such agreement or SOW. “Affiliate” means an entity controlling, controlled by, or under common control with a party to this Agreement at any time during the Term.

e. No Third-Party Beneficiaries. This Agreement is for the sole benefit of the parties hereto and their respective successors and permitted assigns, and nothing herein is intended to confer upon any other person or entity any legal or equitable right, benefit, or remedy under or by reason of this Agreement.

f. Force Majeure. Neither party shall be liable nor deemed to be in default for any delay or failure in performance of the Services or any other obligation under this Agreement to the extent resulting directly or indirectly from acts of God (fires, floods, storms, hurricanes, pandemic, civil authority, earthquakes, tornadoes, etc.), acts of public enemy, war, civil disturbance, sabotage, accidents, insurrections, blockades, embargoes, acts of any governmental or quasi-governmental authority, a pandemic, epidemic and/or other actual or anticipated public health crisis or emergency (each, a “Force Majeure Event”). Notwithstanding the above, Contractor shall use best efforts to mitigate any failure or delays due to a Force Majeure Event, at Contractor’s sole cost, to ensure compliance with all schedule requirements described in this Agreement, including, without limitation, any SOWs and/or Change Orders. If the Force Majeure Event shall continue unabated for sixty (60) days, SFM shall thereafter have the right to terminate this Agreement immediately upon written notice to Contractor without incurring additional liability (except as provided elsewhere in this Agreement) as a result of such termination.

g. Governing Law and Venue. This Agreement and any dispute or proceeding relating to, arising from, or in connection with this Agreement shall be governed by, construed, and enforced in accordance with the laws of the State of Florida, excluding conflict of law rules to the extent they would require or permit the laws of any jurisdiction other than Florida to apply. Any dispute, claim or controversy arising out of or relating to this Agreement, or the breach, termination, enforcement, interpretation or validity thereof, including the determination of the scope or applicability of this agreement to arbitrate, shall be resolved exclusively by binding, arbitration in Miami, Florida, under the auspices of JAMS, pursuant to its Comprehensive Arbitration Rules and Procedures. Such proceedings shall be resolved by one arbitrator if the amount of the claim, as determined by JAMS following an initial case management conference, is One Million U.S. Dollars (US$1,000,000) or less, or three arbitrators if the amount of the claim is more than One Million U.S. Dollars (US$1,000,000). If the parties cannot agree on arbitrator(s) from a list provided by JAMS, the arbitrator(s) shall be selected by JAMS using its rules for selection of arbitrators. Any award issued as a result of such arbitration shall be final and binding between the parties, and shall be enforceable by any court having jurisdiction over the party against whom enforcement is sought, including, without limitation, the United States District Court for the Southern District of Florida and the Eleventh Judicial Circuit Court in Miami-Dade County, Florida, which courts the parties irrevocably agree to submit themselves to, and not contest, for purposes of forum and the exercise of personal jurisdiction. A ruling by the arbitrator shall be non-appealable. The parties agree to abide by and perform any award rendered by the arbitrators. If either party seeks enforcement of any award rendered by the arbitrator, then the prevailing party to such proceeding(s) (as designated by the arbitrator) shall be entitled to recover its costs and expenses (including reasonable attorneys’ fees) from the non-prevailing party, in addition to any other relief to which it may be entitled. Each party covenants and agrees to act as expeditiously as practicable in order to resolve all disputes by arbitration. Each party further agrees that process may be served upon such party in any manner authorized under the laws of the United States or Florida, and waives any objections that such party may otherwise have to such process. The parties agree to keep confidential all arbitration proceedings, all awards in their arbitration, together with all materials in the proceedings created for the purpose of the arbitration and all other documents produced by another party in the proceedings not otherwise in the public domain.

h. Equitable Remedies. The parties agree that irreparable damage would occur if any provision of this Agreement were not performed in accordance with the terms hereof, including Contractor’s obligations to prevent the unauthorized disclosure of any Confidential Information, and that the parties shall be entitled to equitable relief, including injunctive relief or specific performance of the terms hereof, without having to post bond, in addition to any other remedy to which they are entitled at law or in equity. In the event of any unauthorized use or disclosure by a Worker of SFM’s Confidential Information, Contractor shall take, at its own expense, all actions that may be required to prevent the continuing unauthorized use, disclosure or dissemination of the Confidential Information, including, but not limited to, judicial actions for seizure and injunctive relief. If Contractor fails to take such actions in a timely and adequate manner, SFM may take the same in Contractor’s name or in SFM’s own name, as third-party beneficiary, and at Contractor’s expense.

i. No Waiver. No delay or failure by either party to exercise or enforce at any time any right or provision of this Agreement shall be considered a waiver thereof or of such party’s right thereafter to exercise and/or enforce each and every right and provision of this Agreement. To be valid, a waiver must be in writing, but need not be supported by consideration. No single waiver shall constitute a continuing or subsequent waiver. No payment made by SFM shall be considered as acceptance of satisfactory performance of Contractor’s obligations under this Agreement, nor shall any payment be construed as acceptance of substandard or careless work or as relieving Contractor from Contractor’s full responsibilities under this Agreement or as a waiver of SFM’s rights, after making such payment, to claim and/or enforce Contractor’s breach of this Agreement.

j. Severability. If any provision of this Agreement shall be held illegal, invalid, or unenforceable, in whole or in part, such provision shall be modified to the minimum extent necessary to make it legal, valid, and enforceable, as close as possible to the parties’ original intent, and the legality, validity, and enforceability of the remaining provisions shall not be affected.

k. Waiver of Jury Trial. EACH OF THE PARTIES HEREBY KNOWINGLY, VOLUNTARILY, AND INTENTIONALLY WAIVES ANY RIGHT IT MAY HAVE TO A TRIAL BY JURY IN RESPECT OF ANY LITIGATION (INCLUDING BUT NOT LIMITED TO ANY CLAIMS, COUNTERCLAIMS, CROSS-CLAIMS, OR THIRD-PARTY CLAIMS) ARISING FROM, RELATING TO, OR IN CONNECTION WITH THIS AGREEMENT AND THE SERVICES PROVIDED HEREUNDER. FURTHER, EACH OF THE PARTIES CERTIFIES THAT THE OTHER PARTY HAS NOT REPRESENTED, EXPRESSLY OR OTHERWISE, THAT SUCH PARTY WILL WAIVE ITS RIGHT TO ENFORCE THIS WAIVER OF JURY TRIAL PROVISION IN THE EVENT OF LITIGATION.

l. Attorney’s Fees. In connection with any legal suit, action, or proceeding arising from, relating to, or in connection with this Agreement, the prevailing party shall be entitled to receive an award of its costs, including reasonable attorneys’ fees and expenses and court costs, whether incurred or paid, regardless of forum or tribunal level.

m. Interpretation. In construing or interpreting this Agreement, the word “or” shall not be construed as exclusive, and the word “including” shall not be limiting. The headings of this Agreement are for convenience only and shall in no way define, describe, or limit the scope or intent of this Agreement or any provision hereof. Contractor and SFM are represented in this transaction by separate counsel, or have been advised to seek their own independent counsel concerning the interpretation and legal effect of this Agreement and have either obtained such counsel or have intentionally refrained from doing so and have knowingly and voluntarily waived such right. The parties hereto have participated jointly in the negotiation and drafting of this Agreement. In the event of an ambiguity where a question of intent or the need for interpretation arises, this Agreement shall be construed as if drafted jointly by Contractor and SFM, and no presumption or burden of proof shall arise favoring or disfavoring either party by virtue of the authorship of any provisions of this Agreement.

n. Survival. The following sections shall survive the termination of this Agreement for any reason whatsoever: (i) sections 4.0, 5.3, 5.4, 6.0, 7.0, 8.0, 9.0, and 10.0 of the Master Services Agreement; and (ii) sections 1, 2, 3, 4, 5, 6, 7, 8, 9 and 13 of these Terms and Conditions.

o. Time of the Essence. Time is of the essence in the performance of the Services under this Agreement. Contractor shall be liable for any and all damages incurred by SFM by reason of delays in Contractor’s performance of the Services, unless such delays result directly from a Force Majeure Event (and only for the duration of such Force Majeure Event). Without prejudice to SFM’s rights under this Agreement, if, in the judgment of SFM acting reasonably, Contractor has failed or will fail to perform, in full or partially, any of its obligations under this Agreement in a timely manner, then SFM may serve written notice upon Contractor and, unless SFM receives prompt and adequate assurances of Contractor’s ability and willingness to perform, SFM shall be entitled to terminate this Agreement (without liability or obligation to Contractor or any other party) on a date specified by SFM in said notice and make alternative arrangements (at Contractor’s sole cost). In the event of such termination, all sums advanced by SFM shall be promptly refunded to SFM or equitably adjusted for partial non-performance, and Contractor shall be liable for any and all damages sustained or arising as a result of such termination.

p. Counterparts. This Agreement may be executed by all parties in multiple counterparts, each of which shall be deemed an original and all of which taken together shall be deemed to be one and the same document. Signatures sent by facsimile, email, or other generally accepted electronic means (e.g., PDF) shall be deemed original signatures.