PLEASE READ THE FOLLOWING TERMS AND CONDITIONS CAREFULLY BEFORE ACCESSING OR USING THE SERVICES (DEFINED BELOW).

MainStreet Work, Inc. and its affiliates (collectively, “MainStreet”) are willing to provide the Services to you only upon the condition that you accept all the terms contained in this Services Agreement (the “Agreement”). By mutually executing one or more Program Orders with MainStreet or by accessing or using the Services, you have indicated that you understand this Agreement and accept all of its terms. If you are accepting the terms of this Agreement on behalf of a company or other legal entity, you represent and warrant that you have the authority to bind that company or other legal entity to the terms of this Agreement, and, in such event, “you” and “your” will refer to that company or other legal entity. If you do not accept all the terms of this Agreement, then you must not accept this Agreement and you may not use the Services.

Each time that you access or use MainStreet’s website (“Site”) or Services you signify that you have read, understand, and agree to be bound by these terms (“Terms”). If you do not agree to these terms you must discontinue using the Site and Services. We may modify the Terms from time to time. Unless we indicate otherwise, modifications will be effective as of the date they are posted on this page or any successor page. You should look at the Terms regularly. You may voluntarily stop using the Services at any time, but your continued use of a Service after the effective date of any modifications to the Terms means that you agree to the Terms as modified.”

1. Definitions.

“Agreement” means this Services Agreement, together with the Data Processing Addendum attached as Exhibit A.

“Customer Data” means any and all data provided and used by you in connection with the Services.

“Estimated Program Value” means MainStreet’s official estimate of the total value of tax credits or refunds, tax liability reductions, and other benefits and/or savings you will receive from any Program provided by MainStreet after completion of the Qualification Process.

“Program” means a tax credit, incentive, benefit, procurement savings, or any other program you are enrolled in as part of the Services.

“Program Advance” means a cash advance MainStreet may provide to you based on a number of factors, including your compliance with MainStreet’s underwriting process, and estimates of future benefits you will receive with respect to such Program by using the Services.

“Program Order” means each order schedule presented to you during the Qualification Process or sales cycle for each Program through the Services, or the invoice or order/payment confirmation furnished to you at the time of each renewal for such Program, as applicable.

“Qualification Process” means the review and qualification process we undertake to determine your eligibility for certain tax credits, refunds, benefits, procurement savings, and/or financial services in connection with a Program, and to calculate the Estimated Program Value or savings target.

“Services” means MainStreet’s cloud-based services and analytics platform, as well as the associated time of MainStreet personnel who assist you in reviewing and applying for tax credits and incentive programs, and other benefits and procurement savings programs and services.

2. Services.

2.1 Services. Subject to your compliance with the terms and conditions of this Agreement, during the Term (as defined below): (i) MainStreet will provide you with the Services, and you may access and use the Services solely for your internal business purposes within the usage limits specified for each the applicable Program Order; and (ii) MainStreet will make available to you at no additional cost the standard support that is made generally available to paying subscribers, in accordance with MainStreet’s policies as the same may be amended or supplemented from time to time.

2.2 Authorized Users. The Services may only be accessed and used by your employees and independent contractors, who may only access and use the Services for the sole purpose of performing their job functions or services (as applicable) for you (“Authorized Users”). The log-in credentials for each Authorized User are for a single individual only and cannot be shared or used by more than 1 person. You are responsible for all actions taken under an Authorized User’s account, whether or not such action was taken or authorized by the Authorized User. You may from time to time replace an Authorized User who no longer requires use of the Services by notifying MainStreet of the requested change (in which case new log-in credentials will be established).

2.3 Restrictions. You, on behalf of yourself and your Authorized Users, agree not to: (1) copy, modify, alter, decompile or reverse engineer the Services (including the business practices, source code, object code, and underlying structure and algorithms thereof); (2) resell or otherwise make the Services available to any third party; (3) use the Services either directly or indirectly to support any activity that is illegal or that violates the proprietary rights of others; (4) interfere with or disrupt the Services or attempt to gain access to any systems or networks that connect thereto (except as required to access and use the Services); (5) deactivate, impair, or circumvent any security or authentication measures of the Services; (6) use the Services or their outputs to train, calibrate, or validate, in whole or in part any other systems, programs or platforms, or for benchmarking, software-development, or other competitive purposes; or (7) permit any third parties to do any of the above. You are responsible for the use of the Services by your Authorized Users and their compliance with this Agreement, and agree that any breach of this provision would result in irreparable harm to MainStreet.

2.4 Your Responsibilities. You are responsible for providing MainStreet with accurate and complete information. As part of the Services, MainStreet may suggest tax credits, refunds or rebates, incentive programs, promotions, benefits, procurement savings, or other Programs you may qualify for and wish to apply for, and/or participate in. You acknowledge and agree that it is your decision, in your sole discretion, whether to apply for, and/or participate in, any such programs, and you are solely responsible for any impact your application for, or participation in, such Programs may have on your business, employees, customers, or partners. You must cooperate with MainStreet and follow the instructions provided by MainStreet to take advantage of any of the foregoing, and participate in good faith in the processes necessary to secure the credits, savings, and other benefits that have been identified to you. Failure to do so will void the MainStreet Guarantee or Savings Guarantee that may be applicable to your Program Order. MainStreet retains sole discretion in determining whether you have participated in good faith in any of the aforementioned processes. You must also file your complete, independently reviewed tax returns and forms on or prior to the filing deadlines applicable to your company. MainStreet is not responsible for your failure to receive a deduction, credit, discount (including any failure on your part to identify a referrer during the sign up process), promotional rate, or refund due to your non-compliance with the above requirements, or late or incomplete tax filings, and any such failure does not relieve you of your payment obligations to MainStreet. If you choose to extend your tax filing deadline, you will still be obligated to pay back any Program Advance on the schedule set forth in the applicable Program Order regardless of when you receive tax credits or other benefits from the applicable Program. Any information or documentation provided to you for a tax credit Program is only to be used to establish such tax credits on a timely-filed original income tax return, and should not be used for purposes of claiming a refund or credit on an amended return. Any advice or guidance given by or on behalf of MainStreet in connection with the Services or a particular Program is given solely for informational purposes and nothing provided by MainStreet should be construed as investment, legal, accounting, or tax advice. You should consult your lawyer, accountant, or tax professional should you need such advice.

3. Customer Data.

3.1 Customer Data. As between you and MainStreet, you own all right, title and interest in and to your Customer Data. You hereby grant to MainStreet a non-exclusive license to access, process, use, copy, modify, create derivative works based on, and distribute your Customer Data to: (a) provide the Services, including through affiliated entities and third-party service providers, to you and your Authorized Users, and (b) to create Analytics Data (defined below). You are solely responsible for the content of your Customer Data. You represent and warrant that (1) you have, and will continue to have, during the term of this Agreement, all necessary rights, authority and licenses for the access to and use of your Customer Data as contemplated by this Agreement and the software and systems on or through which you have requested us to provide services; and (2) MainStreet’s use of the Customer Data in accordance with this Agreement will not violate any applicable laws or regulations or cause a breach of any agreement or obligation between you and any third party. The Data Processing Addendum set forth in Exhibit A is hereby incorporated herein by reference.

3.2 Security; Backup. MainStreet will maintain (and will require its third-party service providers to maintain) reasonable administrative, physical and technical safeguards intended to protect the Customer Data against accidental loss and unauthorized access or disclosure, in accordance with applicable industry standards. MainStreet will follow its standard archival procedures for Customer Data. In the event of any loss or corruption of Customer Data, MainStreet will use its commercially reasonable efforts to restore the lost or corrupted Customer Data from the latest backup of such Customer Data maintained by MainStreet. MainStreet will not be responsible for any loss, destruction, alteration, unauthorized disclosure or corruption of Customer Data caused by you or by any Authorized User or third party. MAINSTREET’S EFFORTS TO RESTORE LOST OR CORRUPTED CUSTOMER DATA PURSUANT TO THIS SECTION 3.2 WILL CONSTITUTE MAINSTREET’S SOLE LIABILITY AND YOUR SOLE AND EXCLUSIVE REMEDY IN THE EVENT OF ANY LOSS OR CORRUPTION OF CUSTOMER DATA IN CONNECTION WITH THE SERVICES.

4. Fees & Payment.

4.1 Fees. You will pay the fees and charges stated in each Program Order for use of the Services with respect to each Program (“Program Fees”). The Program Fee for each Program will be specified in the applicable Program Order and is payable and charged at the start of each month (or as otherwise specified in the Program Order) for the duration of the applicable Program Order Term (defined below). The Program Order may also include success fees or supplemental fees for additional services provided during the Term (“Supplemental Fees”).

4.2 Payment Terms. Unless otherwise specified in a Program Order, you agree to pay all Program Fees by credit/debit card or by bank transfer (ACH/wire). If you have provided us with credit/debit card details, we will charge that credit/debit card at the start of each month (or as specified in your Program Order) for the duration of the Term, for the Program Fees and the portion due for any applicable Supplemental Fees. If we issue an invoice to you, all invoices are payable as specified in the Payment Terms section of the applicable Program Order (or if not so specified, within thirty (30) days of issuance). All amounts are stated and shall be paid in U.S. dollars and are exclusive of taxes, duties, levies, tariffs, and other governmental charges (collectively, “Taxes”). You are responsible for payment of all Taxes and any related interest and/or penalties resulting from any payments made to us, other than any taxes based on MainStreet’s net income. All past due amounts will incur interest at a rate of 1% per month or the maximum rate permitted by law, whichever is less. Except as expressly set forth in this Agreement, all payments, once paid, are non-refundable. Additionally, you agree to pay or reimburse any costs (including attorney’s fees) MainStreet incurs to collect overdue payments (including Program Fees, Supplemental Fees, and Program Advances) from you.

4.3 Preliminary Non-Binding Estimates. Upon your signing up for a Program, MainStreet may present to you a preliminary estimate or target of the credits, refunds, saving benefits and any cash advances you may be eligible for. Any such estimates are non-binding and subject to revision after completion of the Qualification Process. If MainStreet’s final estimates of the Estimated Program Value and Program Advance after completion of the Qualification Process are different than the preliminary estimate provided by MainStreet, then you may cancel your Program Order within five (5) days after we notify you of the revised estimates, and no cancelation fees will be due. If MainStreet determines that you are not eligible for certain credits, refunds, benefits or savings as a result of the Qualification Process, MainStreet may terminate the Program Order.

4.4 Fee Calculation and Reconciliation for Tax Credit Programs. The Program Fees for each tax credit Program will be calculated as a percentage of the value of the tax credit from such Program as reflected in the tax documents provided to you to assist you with your tax filings (the “Actual Program Value”). The applicable percentage for calculating the Program Fees for each Program will be set forth on the applicable Program Order (the “Fee Percentage”). Upon entering into a Program Order for a Program, you agree to pay Program Fees based on the Estimated Program Value presented to you during the Qualification Process. MainStreet will undertake the following reconciliation process, as applicable, to ensure the total Program Fees you owe are calculated based on the Actual Program Value.

The Program Order for each Program may specify additional reconciliation events (“Reconciliation Event”), in addition to those below, that trigger the following reconciliation process. Upon the occurrence of a Reconciliation Event, MainStreet will calculate the Actual Program Value. For most Programs, the Reconciliation Event will be when your tax documents reflecting the tax refunds and tax liability reductions from the Program are presented to you for inclusion in your filing.

Notwithstanding any other provision of this Agreement: (i) any adjustments to, or denials of, any tax refund or tax liability reduction by any applicable tax authority, court, or other governmental/regulatory body shall not constitute a Reconciliation Event; (ii) no Reconciliation Event with respect to any Program shall occur after the date on which your relevant tax return is filed with the IRS; and (iii) in no event will you have any right to a full or partial refund of any Program Fees if all or part of the Actual Program Value is not sustained by any applicable tax authority, court, or other governmental/regulatory body.

Reconciliation for Overpayment of Program Fees

If the Reconciliation Event occurs during the Program Order Term and the Estimated Program Value is greater than the Actual Program Value, then the Program Fees will be proportionally reduced for the remainder of the Program Order Term so that the total Program Fees you pay during such Program Order Term will equal the Fee Percentage times the Actual Program Value for such Program Order Term. If the amount of Program Fees paid prior to the Reconciliation Event exceeds the Fee Percentage times the Actual Program Value, then MainStreet will refund the excess Program Fees previously paid and, if applicable, no further Program Fees will be due for the remainder of the Program Order Term.

If the Reconciliation Event occurs after the expiration of the Program Order Term and the amount of Program Fees you paid during the Program Order Term exceeds the Fee Percentage times the Actual Program Value, then subject to the other terms of this Agreement, MainStreet will refund the excess Program Fees you paid.

Exceptions

The above reconciliation terms shall not apply and your Program Fees will be calculated based on the Estimated Program Value if the Actual Program Value is less than the Estimated Program Value due to any of the following:

1. false, inaccurate, or incomplete information you provide to MainStreet;
2. your failure to correct and resolve errors in the applications prepared by MainStreet;
3. your failure to follow instructions provided by MainStreet or to cooperate in the process to obtain credits or other benefits for you;
4. your choice not to claim the full amount of a deduction or credit or other benefit for which you are eligible; or
5. your failure or delay in filing a complete and accurate tax return.

Reconciliation for Underpayment of Program Fees

If the Reconciliation Event occurs during the Program Order Term and the Actual Program Value is greater than the Estimated Program Value, then the Program Fees will be proportionally increased for the remainder of the Program Order Term so that the total Program Fees you pay during such Program Order Term will equal the Fee Percentage times the Actual Program Value for such Program Order Term.

If the Reconciliation Event occurs after the expiration of the Program Order Term and the amount of Program Fees you paid during the Program Order Term was less than the Fee Percentage times the Actual Program Value, then MainStreet will notify you of the additional Program Fees due and you agree to pay such fees in accordance with this Agreement.

4.5 Fee Calculation and Reconciliation for Procurement Programs. The Program Fees for each Procurement Program will be calculated as a percentage of the savings target for such Program as reflected in your order form. The applicable percentage for calculating the Program Fees for each Program will be set forth on the applicable Program Order (the “Fee Percentage”). Upon entering into a Program Order for a Program, you agree to pay Program Fees based on the savings target presented to you during the Qualification Process. If at any time your actual amount saved exceeds the savings target for your Program Order, then the Program Fees may be proportionally increased for the remainder of the Program Order Term so that the total Program Fees you pay during such Program Order Term will equal the Fee Percentage times the actual amount saved for such Program Order Term.

4.6. Advances. As part of a Program, MainStreet may provide a Program Advance to qualified customers.

The cash advance amount that you may receive each month in connection with each tax credit Program and the day that you will receive access to each Program Advance will be specified in the applicable Program Order.

You will be responsible for paying back the Program Advance for each Program based on the payback schedule for such Program Advance provided in the Program Order for such Program. In the event this Agreement is terminated or canceled prior to the end of the Term, you will be responsible for paying back each Program Advance in full within 30 days of cancellation.

4.7 Procurement Savings Guarantee. Your procurement Program Order will include a savings target. You must participate in good faith in the negotiations request process to secure the savings that have been estimated for you. At the time MainStreet presents a MainStreet-negotiated vendor order form to you, the savings calculated therein will be used to reduce your savings target even if you choose not to move forward with that order form. Unless otherwise specified in your Program Order, if, by the end of your procurement Program Order Term, MainStreet has not saved you an amount equivalent to the Program Fees stated in your Program Order, MainStreet will refund you the difference between your actual amount saved and the Program Fees you have paid.

5. Term and Termination.

5.1 Term. For each Program Order, the “Program Order Term” shall begin as of the effective date set forth on such Program Order, and unless earlier terminated as set forth herein, (i) shall continue for the initial term specified on the Program Order (the “Initial Program Order Term”), and (ii) following the Initial Program Order Term, shall automatically renew for additional successive periods of one year each without the application of any promotions or incentives applied to the Initial Program Order Term (each, a “Renewal Program Order Term”) unless either party notifies the other party of its intention not to renew no later than thirty (30) days prior to the expiration of the Initial Program Order Term or then-current Renewal Program Order Term, as applicable. This Agreement shall commence upon the effective date set forth in the first Program Order, and, unless earlier terminated in accordance herewith, shall last until the expiration of all Program Order Terms (the “Term”).

5.2 Changes. At any time during the Term, MainStreet may adjust your Fees and Program Advances based on changes to estimated future benefits or target savings. If you choose not to continue using the Services after the change goes into effect, your right to use the Services will end and you will be required to pay any incurred Program Fees and Supplemental Fees and pay back any Program Advances as per the terms in each original Program Order.

5.3 Termination for Breach. Each party will have the right to terminate this Agreement if the other party breaches this Agreement and fails to cure such breach within 10 business days after written notice thereof.

5.4 Cancellation Policy. (a) You may cancel any tax credit Program Order as outlined herein, but you will be required to pay in full the amount of any Program Advance provided in such Program Order within 30 days after cancellation. If you cancel a tax credit Program Order up to five (5) days after MainStreet provides you with a notice of commencement of the expense classification process, you agree to pay any incurred Program Fees and Supplemental Fees through the month of cancellation. If you cancel after that time, you agree to pay the full Program Fees and Supplemental Fees as set forth in your Program Order.

(b) Procurement Program Orders: You may cancel any procurement Program Order, but agree to pay any incurred Program Fees and Supplemental Fees through the month of cancellation. Cancellation of your procurement Program Order will also terminate any savings guarantee applicable to that Program Order.

5.5 Additional Remedies. Without limiting other available remedies, MainStreet reserves the right to suspend or disable your and your Authorized Users’ access to the Services if any undisputed amounts payable under this Agreement become more than 30 days past due. MainStreet also reserves the right to suspend or disable access to the Services if MainStreet determines (in its sole discretion) that: (1) your or any Authorized User’s use of the Services disrupts, harms, or poses a security risk, or may cause harm, in each case to MainStreet, the Services or any third party; or (2) you or any Authorized User has used, or is using, the Services in breach of this Agreement.

5.6 Effect of Termination. Upon any expiration or termination of this Agreement, your (and your Authorized Users’) right to access and use the Services will automatically terminate. MainStreet will have no liability for any costs, losses, damages, or liabilities arising out of or related to MainStreet’s exercise of its termination rights under this Agreement. Any payment obligations as of the expiration or termination will remain in effect. The obligations and provisions of Sections 2.3, 3, 4, 5, and Sections 6 through 13 (inclusive) will survive any expiration or termination of this Agreement.

6. Confidentiality.

6.1 General. Each party understands that the other party may need to disclose certain non-public information relating to the disclosing party’s business that is marked or identified as “confidential” at the time of disclosure, or that is described in this Agreement as confidential (“Confidential Information”) in connection with the use and/or performance of the Services. Customer Data is your Confidential Information. MainStreet Confidential Information includes the non-public portions of the Services and any related documentation and pricing information of MainStreet. During the term of this Agreement and for three (3) years thereafter, each party agrees to take reasonable precautions to protect the disclosing party’s Confidential Information from unauthorized disclosure, not to use such Confidential Information except as authorized or as necessary to perform its obligations under this Agreement, and to not disclose (without the disclosing party’s prior authorization, including any such authorization given under this Agreement) to any third person any such Confidential Information (other than on a need to know basis to the receiving party’s employees, consultants and service providers who are subject to confidentiality obligations that are at least as protective of the disclosing party’s Confidential Information as this Agreement), or as specifically permitted under this Agreement. Confidential Information does not include any information that the receiving party can show: (1) through no fault of the receiving party, is or becomes generally available to the public, (2) was in its possession or was known prior to receipt from the disclosing party, (3) was rightfully disclosed to it without restriction by a third party, or (4) was independently developed without use of any Confidential Information of the disclosing party. For the avoidance of doubt, Confidential Information does not include any information regarding the tax treatment or tax structure of any transaction. The receiving party may disclose Confidential Information if the disclosure is necessary to comply with a valid court order or subpoena (in which case the receiving party will, unless prohibited by law or legal process, promptly notify the disclosing party and cooperate with the disclosing party if the disclosing party chooses to contest the disclosure requirement, seek confidential treatment of the information to be disclosed, or limit the nature or scope of the information to be disclosed). Upon request following termination of this Agreement, the receiving party will promptly return to the disclosing party or destroy all copies of the disclosing party’s Confidential Information in its possession or control, except that the receiving party may retain a  copy of the disclosing party’s Confidential Information to monitor its compliance under this Agreement and to comply with applicable regulatory requirements. For purposes of clarity, MainStreet may retain any de-identified information or Analytics Data generated using Customer Data.

6.2 Consent. To Use or Disclose Customer Data. If we are considered a return preparer under federal tax law, we cannot disclose your tax return information to third parties, or use that information for purposes other than in the preparation of your tax returns, unless such disclosure or use is otherwise authorized by law or you consent to such disclosure or use. Likewise, if we are considered a return preparer, federal tax law precludes our disclosing your tax return information to service providers outside the United States without your consent.

6.3 Disclosure of Tax Return Information Outside the U.S.. In the course of providing services to you under this Agreement, MainStreet may engage one or more independent contractors to assist MainStreet in providing such services, and any administrative, clerical or analytical functions related thereto. 

7. Ownership.

7.1 MainStreet Intellectual Property. As between MainStreet and you, MainStreet owns all worldwide right, title and interest in and to the Services, the Usage Data, and Analytics Data, including all Intellectual Property Rights therein. For purposes of this Agreement, “Intellectual Property Rights” means patent rights (including patent applications and disclosures), trademarks, copyrights, trade secrets, know-how and any other intellectual property rights recognized in any country or jurisdiction in the world.

7.2 Feedback. If you provide any ideas, suggestions, or recommendations regarding the Services (“Feedback”), MainStreet will be free to use, disclose, reproduce, license or otherwise distribute, and exploit such Feedback as it sees fit, entirely without obligation or restriction of any kind. By providing Feedback, you grant to MainStreet a worldwide, perpetual, irrevocable, fully-paid up, royalty-free, nonexclusive license to use and exploit in any manner such Feedback.

7.3 Usage Data. You acknowledge and agree that MainStreet may generate data with respect to the use and performance of the Services (“Usage Data”) and may retain and use such Usage Data for its internal business purposes, such as developing and improving MainStreet’s products and services (including the Services).

7.4 Analytics Data. You acknowledge and agree that MainStreet may use the Usage Data and the Customer Data to create analytics, analyses, statistics, benchmarks, or other aggregated data and derivative works.

8. NO WARRANTY.

THE SERVICES ARE PROVIDED AS “AS IS,” WITHOUT WARRANTY OF ANY KIND. MAINSTREET DISCLAIMS ALL WARRANTIES, EXPRESS OR IMPLIED, INCLUDING BUT NOT LIMITED TO ANY IMPLIED WARRANTIES OF MERCHANTABILITY, FITNESS FOR A PARTICULAR PURPOSE AND NON-INFRINGEMENT, AND ANY WARRANTIES ARISING OUT OF COURSE OF DEALING OR USAGE OF TRADE. NO ADVICE OR INFORMATION, WHETHER ORAL OR WRITTEN, OBTAINED FROM MAINSTREET OR ELSEWHERE WILL CREATE ANY WARRANTY NOT EXPRESSLY STATED IN THIS AGREEMENT. MAINSTREET DISCLAIMS ANY WARRANTY THAT THE SERVICES WILL BE ERROR-FREE OR UNINTERRUPTED OR THAT ALL ERRORS WILL BE CORRECTED. You assume sole responsibility and liability for results obtained from the use of the Services and for conclusions drawn from such use. MainStreet will have no liability for any claims, losses, or damages caused by errors or omissions in any Customer Data or any results produced by the Services based upon Customer Data.

9. Limitation of Liability.

IN NO EVENT WILL MAINSTREET BE LIABLE FOR ANY SPECIAL, INCIDENTAL, EXEMPLARY, PUNITIVE OR CONSEQUENTIAL DAMAGES, OR FOR ANY LOSS OF USE, LOSS OF DATA, LOSS OF PROFITS OR LOSS OF GOODWILL, OR THE COSTS OF PROCURING SUBSTITUTE PRODUCTS, WHETHER OR NOT FORESEEABLE, ARISING OUT OF OR IN CONNECTION WITH THIS AGREEMENT OR THE USE OR PERFORMANCE OF THE SERVICES, WHETHER SUCH LIABILITY ARISES FROM ANY CLAIM BASED UPON CONTRACT, WARRANTY, TORT (INCLUDING NEGLIGENCE), PRODUCT LIABILITY OR OTHERWISE, AND WHETHER OR NOT MAINSTREET HAS BEEN ADVISED OF THE POSSIBILITY OF SUCH LOSS OR DAMAGE. MAINSTREET’S TOTAL AGGREGATE LIABILITY ARISING UNDER THIS AGREEMENT, FROM ALL CAUSES OF ACTION AND ALL THEORIES OF LIABILITY, WILL NOT EXCEED THE AMOUNTS PAID TO MAINSTREET BY YOU FOR THE SERVICES DURING THE 12 MONTH PERIOD PRIOR TO THE FIRST CLAIM FOR LIABILITY HEREUNDER. The parties agree that the limitations and exclusions contained in this Section 9 and elsewhere in this Agreement will survive and apply even if any exclusive remedy specified in this Agreement is found to have failed of its essential purpose.

10. U.S. Government End Users.

The Services are “commercial computer software” and “commercial computer software documentation,” respectively, as such terms are used in FAR 12.212 and DFARS 227.7202. If access to the Services is being acquired by or on behalf of the U.S. Government, then, as provided in FAR 12.212 and DFARS 227.7202-1 through 227.7202-4, as applicable, the U.S. Government’s rights in the Services will be only those specified in this Agreement.

11. Indemnification.

You agree to indemnify and hold MainStreet and its licensors, suppliers, vendors, partners, and affiliated entities, and each of their respective officers, directors, members, employees, consultants, contract employees, representatives and agents harmless from and against any and all claims, liabilities, damages (actual and consequential), losses and expenses (including attorneys’ fees) arising from or in any way related to any claims relating to (a) your violation of this Agreement, (b) any liens by third parties on your account, and (c) your use of the Services in any manner inconsistent with this Agreement.

12. Force Majeure.

MainStreet will not be in breach of this Agreement if its performance is prevented or delayed for circumstances beyond its reasonable control, including but not limited to acts of God, inclement weather, flood, lightning or fire, strikes or other labor disputes or industrial action, act or omission of government or other competent authority, terrorism, war, riot, or civil commotion, pandemic, unavailability of supply or power outage, hackers, viruses, disruption in transmission, or disruption in telecommunications services.

13. General.

This Agreement will be governed by and construed in accordance with the laws of the State of California, without regard to or application of conflict of laws rules or principles. The United Nations Convention on Contracts for the International Sale of Goods will not apply. Any controversy or claim relating to the Agreement shall be settled by arbitration in San Francisco, California under JAMS’ Streamlined Arbitration Rules. The arbitrator(s) may award costs and attorneys’ fees to the prevailing party, and judgment on any award rendered by the arbitrator(s) may be entered in any court having jurisdiction thereof. You may not assign or transfer this Agreement, or any rights granted hereunder, by operation of law or otherwise, without MainStreet’s prior written consent, and any attempt by you to do so, without such consent, will be void. MainStreet may freely assign this Agreement. Except as expressly set forth in this Agreement, the exercise by either party of any of its remedies under this Agreement will be without prejudice to its other remedies under this Agreement or otherwise. All notices or approvals required or permitted under this Agreement will be in writing and delivered by confirmed email transmission, by overnight delivery service, or by certified mail, and in each instance will be deemed given upon receipt. All notices or approvals will be sent to the addresses set forth in the applicable Program Order or to such other address as may be specified by either party to the other in accordance with this Section. The failure by either party to enforce any provision of this Agreement will not constitute a waiver of future enforcement of that or any other provision. Any waiver, modification or amendment of any provision of this Agreement will be effective only if in writing and signed by authorized representatives of both parties. If any provision of this Agreement is held to be unenforceable or invalid, that provision will be enforced to the maximum extent possible, and the other provisions will remain in full force and effect. This Agreement, together with the Program Orders, is the complete and exclusive understanding and agreement between the parties regarding its subject matter, and supersedes any and all prior or contemporaneous agreements, proposals, understandings or communications between the parties, oral or written, regarding its subject matter, unless you and MainStreet have executed a separate agreement governing use of the Services. Any terms or conditions contained in any purchase order or other ordering document that are inconsistent with or in addition to the terms and conditions of this Agreement are hereby rejected by MainStreet and will be deemed null. The parties to this Agreement are independent contractors and this Agreement will not establish any relationship of partnership, joint venture, employment, franchise, or agency between the parties. Neither party will have the power to bind the other or incur obligations on the other’s behalf without the other’s prior written consent.

14. Contact Information.

If you have any questions regarding this Agreement, you may contact MainStreet at support@mainstreet.com.

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Exhibit A

Data Processing Addendum

This Data Processing Addendum (“DPA”) forms part of the attached Services Agreement (the “Agreement”) between you (“Customer”) and MainStreet.

1. Subject Matter and Duration.

1.1 Subject Matter. This DPA reflects the parties’ commitment to abide by Data Protection Laws concerning the Processing of Customer Personal Data in connection with MainStreet’s performance of its obligations under the Agreement. All capitalized terms that are not expressly defined in this DPA will have the meanings given to them in the Agreement. If and to the extent language in this DPA conflicts with the Agreement, this DPA shall control.

1.2 Duration and Survival. This DPA will become legally binding upon the effective date of the Agreement. MainStreet will Process Customer Personal Data until the relationship terminates as specified in the Agreement. MainStreet’s obligations and Customer’s rights under this DPA will continue in effect so long as MainStreet Processes Customer Personal Data.

2. Definitions.

2.1 “Customer Personal Data” means Personal Data Processed by MainStreet on behalf of Customer.

2.2 “Data Protection Laws” means all applicable data privacy, data protection, and cybersecurity laws, rules and regulations to which the Customer Personal Data are subject.

2.3 “Personal Data” shall have the meaning assigned to the terms “personal data” and/or “personal information” under Data Protection Laws.

2.4 “Process” or “Processing” means any operation or set of operations which is performed on Personal Data or sets of Personal Data, whether or not by automated means, such as collection, recording, organization, structuring, storage, adaptation or alteration, retrieval, consultation, use, disclosure by transmission, dissemination, or otherwise making available, alignment or combination, restriction, erasure, or destruction.

2.5 “Security Incident(s)” means the breach of security leading to the accidental or unlawful destruction, loss, alteration, unauthorized disclosure of, or access to Customer Personal Data attributable to MainStreet.

2.6 “Services” means any and all services that MainStreet performs under the Agreement, including through affiliated entities and third-party service providers.

2.7 “Third Party(ies)” means MainStreet’s authorized contractors, agents, vendors and third-party service providers (i.e., sub-processors) that Process Customer Personal Data.

3. Data Use and Processing.

3.1 Processing Customer Personal Data. MainStreet and its Third Parties shall Process Customer Personal Data only as specifically authorized by this DPA, the Agreement, or any applicable Program Order.

3.2 Authorization to Use Third Parties. To the extent necessary to fulfill MainStreet’s contractual obligations under the Agreement, Customer hereby authorizes (i) MainStreet to engage Third Parties and (ii) Third Parties to engage sub-processors.

3.3 MainStreet and Third-Party Compliance. MainStreet agrees to enter into a written agreement with Third Parties regarding such Third Parties’ Processing of Customer Personal Data that imposes on such Third Parties data protection and security requirements for Customer Personal Data. 

3.4 Personal Data Inquiries and Requests. Where required by Data Protection Laws, MainStreet agrees to provide reasonable assistance and comply with reasonable instructions from Customer related to any requests from individuals exercising their rights in Customer Personal Data granted to them under Data Protection Laws (e.g., access, rectification, erasure, data portability, etc.). If a request is sent directly to MainStreet, MainStreet shall notify Customer without undue delay.

3.5 Sale of Customer Personal Data Prohibited. MainStreet shall not sell Customer Personal Data as the term “sell” is defined by the CCPA. MainStreet shall not disclose or transfer Customer Personal Data to a Third Party or other parties that would constitute “selling” as the term is defined by the CCPA.

3.6 Data Protection Impact Assessment and Prior Consultation. Where required by Data Protection Laws, MainStreet agrees to provide reasonable assistance at Customer’s expense to Customer where, in Customer’s judgment, the type of Processing performed by MainStreet requires a data protection impact assessment and/or prior consultation with the relevant data protection authorities.

3.7 Demonstrable Compliance. MainStreet agrees to provide information that is reasonably necessary to demonstrate compliance with this DPA upon reasonable request.

3.9. Information Security Program. MainStreet agrees to implement commercially reasonable technical and organizational measures designed to protect Customer Personal Data consistent with Data Protection Laws.

3.10. Security Incidents. Upon confirming the existence of a Security Incident, MainStreet agrees to provide written notice without undue delay and within the time frame required under Data Protection Laws. Where possible, such notice will include all available details required under Data Protection Laws for Customer to comply with its own notification obligations to regulatory authorities or individuals affected by the Security Incident.

3.11. Audits. Where Data Protection Laws afford Customer an audit right, Customer (or its appointed representative) may, not more than once annually, carry out an audit of MainStreet’s Processing of Customer Personal Data by having MainStreet complete a data protection questionnaire of reasonable length. Any such audit shall be subject to MainStreet’s security and confidentiality terms and guidelines.

3.12. Data Deletion. At the expiry or termination of the Agreement, MainStreet will, upon Customer’s request, delete or return all Customer Personal Data (excluding any back-up or archival copies which shall be deleted in accordance with MainStreet’s data retention schedule), except where necessary to monitor compliance with surviving contractual provisions, or where MainStreet is required to retain copies under applicable laws or regulatory requirements, in which case MainStreet will isolate and protect that Customer Personal Data from any further Processing except to the extent required by applicable laws.

4. Processing Details.

Subject Matter: The subject matter of the Processing is the Services pursuant to the Agreement.

Duration: The Processing will continue until the expiration or termination of the Agreement.

Categories of Data Subjects: Data subjects whose Personal Data will be Processed pursuant to the Agreement.

Nature and Purpose of the Processing: The purpose of the Processing of Customer Personal Data by MainStreet is the performance of the Services.

Types of Customer Personal Data: Customer Personal Data that is Processed pursuant to the Agreement.