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Submitted URL: https://protect-us.mimecast.com/s/08sQC0R23ATv4m3xSrYzVq?domain=click.smartsheet.com
Effective URL: https://www.smartsheet.com/legal/user-agreement
Submission: On May 02 via api from US — Scanned from US
Effective URL: https://www.smartsheet.com/legal/user-agreement
Submission: On May 02 via api from US — Scanned from US
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SMARTSHEET USER AGREEMENT
TERMS OF SERVICE
* User Agreement
* Security Practices
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* Service Level Agreement
PRIVACY
* Privacy Notice
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OTHER AGREEMENTS
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POLICIES
* Limits Policy
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MISCELLANEOUS
* Site Terms
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* Australian Modern Slavery Act Statement
BY CLICKING A BOX INDICATING ACCEPTANCE OF, OR EXECUTING AN ORDER THAT
INCORPORATES, THIS USER AGREEMENT (“Agreement”), THE INDIVIDUAL OR LEGAL ENTITY
(“Customer”) AGREES THE TERMS AND CONDITIONS OF THIS AGREEMENT GOVERN CUSTOMER’S
ACCESS TO AND USE OF THE SERVICES PROVIDED BY SMARTSHEET INC. ("Smartsheet").
THIS AGREEMENT IS EFFECTIVE AS OF THE DATE OF SUCH ACCEPTANCE OR EXECUTION
(“Effective Date”). IF ANY TERMS OR CONDITIONS IN THE SMARTSHEET AGREEMENT
SUPPLEMENT APPLY TO CUSTOMER (e.g., if customer is a U.S. government entity or
educational institution) OR A SPECIFIC SERVICE (e.g., Smartsheet Gov or Event
Reporting), THOSE TERMS AND CONDITIONS ARE ALSO INCORPORATED HEREIN BY REFERENCE
AND FORM PART OF THIS AGREEMENT.
ANY INDIVIDUAL AGREEING TO BE BOUND BY THIS AGREEMENT ON BEHALF OF A LEGAL
ENTITY REPRESENTS THAT SUCH INDIVIDUAL HAS THE AUTHORITY TO BIND SUCH ENTITY TO
THE TERMS AND CONDITIONS CONTAINED HEREIN.
CUSTOMER SHALL NOT ACCESS OR USE THE SERVICES WITHOUT PRIOR WRITTEN CONSENT OF
SMARTSHEET IF CUSTOMER IS OR BECOMES A DIRECT COMPETITOR TO SMARTSHEET OR ITS
AFFILIATES.
1. Services.
* 1.1 Right to Access and Use. Subject to the terms and conditions of this
Agreement and in consideration of the fees specified in any Order or SOW,
Smartsheet hereby grants Customer a worldwide, non-exclusive,
non-transferable right to access and use Smartsheet’s online Services during
the applicable Term for Customer’s own business purposes. Users may exercise
such limited right on behalf of Customer.
* 1.2 Restrictions. Customer’s access to and use of the Services during any
Term is subject to the applicable restrictions in an Order, SOW, and
Smartsheet’s Limits Policy and Acceptable Use Policy available on the Site as
of such Term’s start date. Customer shall not permit a set of login
credentials for a Service to be used by more than one User and shall not
commercially sell, resell, license, sublicense, distribute, or frame the
Services to a third party. Customer shall access and use the Services in
compliance with this Agreement, the Documentation, and applicable laws and
regulations, and shall promptly notify Smartsheet of any known unauthorized
access or use. Customer is responsible for Users’ access to and use of the
Services.
2. Security and Processing of Customer Content.
* 2.1 Security. Smartsheet has implemented and will maintain information
security practices and safeguards as described in the Security
Practices available at www.smartsheet.com/legal/security which include
physical, organizational, and technical measures designed to preserve the
security, integrity, and confidentiality of the online Services and Customer
Content and to protect against information security threats. Smartsheet may
update such security practices and safeguards from time to time, provided
that any such update does not materially reduce the overall level of security
or commitments as described therein.
* 2.2 Processing. Customer represents and warrants that it has all rights,
permissions, and consents necessary to: (a) submit all Customer Content to
the Services; and (b) grant Smartsheet the limited rights to process Customer
Content as set forth herein. Customer hereby grants Smartsheet a worldwide,
non-exclusive, non-transferable, right to use and otherwise process Customer
Content under this Agreement only: (x) as required by applicable law; (y) as
requested by Customer in writing or as allowed by Customer via a Service’s
access controls; or (z) as necessary to provide, support, or optimize the
Services or prevent or address technical problems with the Services or
violations of this Agreement. Smartsheet’s limited right to process Customer
Content hereunder will not excuse any obligation of Smartsheet relating to
Customer Content under this Agreement. If Customer requires, in its sole
discretion, specific terms for processing Customer Content which includes
personal information, Customer may submit a form agreeing to the terms of the
Data Processing Addendum ("DPA") available at www.smartsheet.com/legal/DPA,
and the DPA on the Site at the time of such submission will be incorporated
into this Agreement on the date of such submission or the Effective Date,
whichever is later.
* 2.3 Use of Third Parties. Smartsheet may engage third parties to act on
Smartsheet’s behalf in connection with Smartsheet’s provision of the Services
provided that: (a) such third parties are subject to applicable
confidentiality and data security obligations that are substantially as
protective as those set forth in this Agreement; and (b) Smartsheet is
responsible for such third parties’ acts and omissions in relation to
Smartsheet’s obligations under this Agreement. Unless otherwise agreed by the
parties, all third parties engaged to process Customer Content on behalf of
Smartsheet are identified at www.smartsheet.com/legal/subprocessors.
3. Intellectual Property and Proprietary Rights.
* 3.1 Smartsheet. As between the parties, all right, title, and interest in
and to Smartsheet Properties is owned by Smartsheet notwithstanding any other
provision in this Agreement. Except as expressly set forth in this Agreement,
Smartsheet does not convey any rights to Customer or any User.
* 3.2 Customer. As between the parties, Customer retains all its right,
title, and interest in and to Customer’s Confidential Information, including
Customer Content, and all intellectual property and proprietary rights
therein. Except as expressly set forth in this Agreement, Smartsheet acquires
no right, title, or interest from Customer under this Agreement in or to
Customer Content.
* 3.3 Feedback. Customer grants Smartsheet a worldwide, irrevocable,
perpetual, sublicensable, transferable, non-exclusive license to use and
incorporate into Smartsheet’s products and services any feedback or
suggestions for enhancement that Customer or a User provides to Smartsheet
(“Feedback”), without any obligation of compensation. Feedback is provided by
Customer “as-is,” without representations or warranties, either express or
implied, including any warranties of merchantability or fitness for a
particular purpose.
4. Ancillary Services; Third Party Products.
* 4.1 Professional Services. Smartsheet and Customer may enter into SOWs or
Orders under this Agreement for the provision of Professional Services. If
Smartsheet provides Professional Services to Customer, Customer’s rights to
access and use Customizations resulting from such Professional Services are
subject to the limitations and restrictions set forth in Section 1 (Services)
of this Agreement.
* 4.2 Smartsheet API. Smartsheet may make an application programming
interface or other similar development tools available within an online
Service which establishes an interface with such Service (“Smartsheet API”).
Unless Customer has entered into Smartsheet's separate developer agreement
and Smartsheet has provided Customer with an application ID for
authentication purposes, Customer shall not use or enable a third party to
use any Smartsheet API: (a) in a manner that causes Customer to exceed the
limits of its authorized use of the applicable Service as set forth in this
Agreement or an applicable Order; or (b) to access a Smartsheet account not
otherwise controlled by Customer.
* 4.3 Free Services. Smartsheet may make a Service available with a clear
and conspicuous written notice specifying that the Service is provided free
of charge, on a trial basis and/or to be used at your own risk (“Free
Services”). Notwithstanding any other provision of this Agreement, Customer
acknowledges and agrees that: (a) Free Services are made available without
any support, maintenance, warranty, commitment to availability, security, or
accuracy, or other related obligation of any kind under this Agreement,
unless otherwise required by applicable law; (b) Free Services may not
include or allow access to all features and functionality available to paying
customers; (c) Smartsheet may terminate the use of a Free Service at any
time, unless otherwise specified in writing, and Smartsheet will not be
liable for such termination; (d) data, information, and content submitted to
a Free Service may be permanently lost, and Smartsheet will not be liable for
such loss; and (e) if Customer has not provided a billing address to
Smartsheet in connection with its access to and use of Free Services, all
notices required under this Agreement will be sent via email.
* 4.4 Third Party Products. If Customer separately procures services,
applications, or online content from a third party (“Third Party Products”)
for use with the Services, any such use is subject to the end-user license or
use agreement that Customer accepts from or establishes with the third party.
Third Party Products are not Services and, as between the parties, Smartsheet
has no liability with respect to Customer’s procurement or use of Third Party
Products.
5. Fees and Payment.
* 5.1 Fees. Customer will pay Service fees specified in each Order or SOW.
All Orders are non-cancelable and Service fees are non-refundable once paid
except as otherwise expressly provided in this Agreement or the applicable
Order or SOW. Smartsheet may increase the unit price specified in an Order
for any Renewal Term upon written notice to Customer (including via email),
provided that if the number of units purchased by Customer for such Renewal
Term is equal or greater than the number of units up for renewal, then such
notice must be provided at least forty-five (45) days prior to the start of
the Renewal Term. Unless otherwise provided in a SOW, Customer will reimburse
Smartsheet for reasonable, out-of-pocket expenses incurred by Smartsheet in
the course of providing Professional Services in accordance with Smartsheet’s
Travel and Expense Policy.
* 5.2 Payment. Unless otherwise provided in the applicable Order or SOW,
Smartsheet will charge Customer for Subscription Service fees on an annual
basis in advance and Professional Service fees on a time and materials basis
monthly in arrears and all amounts due under this Agreement are payable in
United States dollars net thirty (30) days from the date of the invoice.
Customer agrees to promptly notify Smartsheet in writing of any changes to
its billing information during any Term. Smartsheet reserves the right to
correct any billing errors or mistakes that Smartsheet identifies in an
invoice or after a payment is received. Customer shall remit payments by only
electronic means (including by wire or ACH or for amounts less than $25,000
USD by credit card), with a notation to applicable invoice
numbers. Smartsheet may accept payment in any amount without prejudice to
Smartsheet’s right to recover the balance of the amount due under an Order or
SOW or to pursue any other right or remedy. Amounts due to Smartsheet from
Customer shall not be withheld or offset against amounts due or alleged to be
due to Customer from Smartsheet. Except as prohibited by law, Smartsheet may
charge a late fee of one and one-half percent (1.5%) per month on past due
amounts. If Customer requires a purchase order, vendor registration form, or
other documentation, such requirement will in no way relieve, affect, or
delay Customer’s obligation to pay any amounts due hereunder.
* 5.3 Taxes. Other than income taxes imposed on Smartsheet, Customer will
bear all taxes, duties, VAT, and all other governmental charges
(collectively, “Taxes”) resulting from this Agreement. If Customer is exempt
from any applicable Taxes, Customer will provide evidence reasonably
satisfactory to Smartsheet of Customer’s tax-exempt status and, after receipt
of such evidence, Smartsheet will not charge Customer any Taxes from which it
is exempt. If it is determined that payments due under this Agreement are
subject to withholding Taxes, Customer shall notify Smartsheet prior to
deducting any such Taxes. Customer shall: (a) only withhold amounts required
under law; (b) make timely payment to the proper taxing authority of such
withheld amount; and (c) provide Smartsheet with proof of such payment within
thirty (30) days following that payment.
* 5.4 Affiliates. Customer’s Affiliates may purchase Services under this
Agreement by executing an Order or SOW. Each Order or SOW is a separate
contract between Smartsheet and the Affiliate that executes it, and such
Affiliate will be deemed “Customer” as used in this Agreement with respect to
such Order or SOW.
* 5.5 Resellers. Customer may elect to purchase certain Services through a
reseller authorized by Smartsheet (“Reseller”). Customer’s obligation for
payment to, and its relationship with, any Reseller is between Customer and
such Reseller, and Customer must direct any claims for refunds owed hereunder
to such Reseller.
6. Confidentiality.
* 6.1 Confidential Information. “Confidential Information” means all
non-public, proprietary, business, technical, legal, or financial information
disclosed or learned in connection with this Agreement that the Disclosing
Party has identified as confidential at the time of disclosure or that, based
on the nature of the information or circumstances surrounding its disclosure,
the Receiving Party would clearly understand it as confidential. Confidential
Information includes Smartsheet Properties with regard to Smartsheet and
Customer Content with regard to Customer. Notwithstanding the foregoing
definition, Confidential Information does not include: (a) information that
was generally known to the public at the time disclosed to the Receiving
Party; (b) information that becomes generally known to the public (other than
through a breach of Section 6 (Confidentiality) by the Receiving Party) after
disclosure to the Receiving Party; (c) information that was in the Receiving
Party’s possession free of any obligation of confidentiality prior to
disclosure by the Disclosing Party; (d) information that is rightfully
received by the Receiving Party from a third party without any restriction on
disclosure; or (e) information that was independently developed by the
Receiving Party without reference to or use of Disclosing Party’s
Confidential Information. ALL CONFIDENTIAL INFORMATION IS PROVIDED “AS IS.”
EXCEPT FOR THE WARRANTIES EXPRESSLY STATED IN THIS AGREEMENT, NEITHER PARTY
MAKES ANY WARRANTIES, EXPRESSED OR IMPLIED, CONCERNING THE ACCURACY OR
COMPLETENESS OF ITS CONFIDENTIAL INFORMATION.
* 6.2 Use and Disclosure of Confidential Information. The Receiving Party:
(a) will not use the Disclosing Party’s Confidential Information for any
purpose except as permitted under this Agreement; (b) will not disclose, give
access to, or distribute any of the Disclosing Party’s Confidential
Information to any third party, except to the extent expressly authorized in
this Agreement or a separate written agreement signed by the Disclosing
Party; and (c) will take reasonable security precautions (which will be at
least as protective as the precautions it takes to preserve its own
Confidential Information of a similar nature) to safeguard the Disclosing
Party’s Confidential Information. Notwithstanding the foregoing, the
Receiving Party may disclose Confidential Information to those of its
employees, directors, Affiliates, advisors, agents, contractors, and other
representatives (“Representatives”) who need to know such information in
order to exercise their respective rights and obligations hereunder, on the
condition that each such Representative is bound to protect the Confidential
Information by confidentiality obligations substantially as protective as
those set forth in this Agreement. The Receiving Party will be responsible
for its Representatives’ disclosure or use of the Disclosing Party’s
Confidential Information in violation of Section 6 (Confidentiality). The
Receiving Party will promptly notify the Disclosing Party in writing upon
discovery of any unauthorized disclosure or use of the Disclosing Party’s
Confidential Information, or any other breach of Section 6, by it or its
Representatives. The Receiving Party’s obligations set forth in Section 6
will remain in effect during the Term and for three (3) years after
termination of this Agreement. The disclosure of Confidential Information to
the Receiving Party does not grant or convey any right of ownership of such
Confidential Information.
* 6.3 Required Disclosures. The Receiving Party may disclose Confidential
Information to the extent required by law or legal process, provided,
however, the Receiving Party will (unless prohibited by law or legal
process): (a) give the Disclosing Party prior written notice of such
disclosure to afford the Disclosing Party a reasonable opportunity to appear,
object, and obtain a protective order or other appropriate relief regarding
such disclosure; (b) use diligent efforts to limit disclosure to that which
is legally required; and (c) reasonably cooperate with the Disclosing Party,
at the Disclosing Party’s expense, in its efforts to obtain a protective
order or other legally available means of protection.
* 6.4 Return and Deletion. Upon written request by the Disclosing Party, the
Receiving Party will, without undue delay: (a) either return or destroy all
tangible documents and media in its possession or control that contain the
Disclosing Party’s Confidential Information; (b) delete electronically stored
Confidential Information of the Disclosing Party in its possession or
control; and (c) certify its compliance with this Section 6.4 in writing.
Notwithstanding the foregoing: (x) the Receiving Party will not be obligated
to render unrecoverable Confidential Information of the Disclosing Party that
is contained in an archived computer system backup made in accordance with
the Receiving Party's legal and financial compliance obligations or security
and disaster recovery procedure; and (y) Smartsheet shall return and delete
Customer Content as set forth in Section 10.4 (Return and Deletion of
Customer Content). Any such retained Confidential Information will remain
subject to Section 6 (Confidentiality).
* 6.5 Remedies. The Receiving Party acknowledges that any actual or
threatened breach of Section 6 (Confidentiality) may cause irreparable,
non-monetary injury to the Disclosing Party, the extent of which may be
difficult to ascertain. Accordingly, the Disclosing Party is entitled to (but
not required to) seek injunctive relief to prevent or mitigate any breaches
of Section 6 with respect to the Disclosing Party’s Confidential Information
or any damages that may otherwise result from those breaches.
7. Representations and Warranties.
* 7.1 Authority and Compliance Warranty. Smartsheet represents and warrants
that it has the necessary authority to enter into this Agreement and that
Smartsheet shall comply with any United States laws and regulations to the
extent such laws and regulations apply to Smartsheet’s provision of the
Services under this Agreement. For the avoidance of doubt, Smartsheet shall
not be responsible for Customer’s compliance with any laws and regulations
applicable to Customer and its industry.
* 7.2 Limited Warranty for Subscription Services. Smartsheet represents and
warrants that the Subscription Services will operate during the applicable
Term substantially as described in the applicable Documentation. Upon receipt
of Customer’s written notice of any alleged failure to comply with this
warranty, Smartsheet will use commercially reasonable efforts to cure or
correct the failure. If Smartsheet has not cured or corrected the failure
within thirty (30) days following its receipt of such notice, then Customer
may terminate the applicable Order and Smartsheet shall issue a refund of
prepaid fees covering the terminated portion of the Subscription Services.
Notwithstanding the foregoing, this warranty will not apply to any failure
due to a defect in or modification of a Subscription Service that is caused
or made by Customer, any User, or any person acting at Customer’s direction.
This Section 7.2 sets forth Customer’s exclusive rights and remedies and
Smartsheet’s sole liability in connection with this warranty.
* 7.3 Limited Warranty for Professional Services. Smartsheet represents and
warrants that the Professional Services will be provided in a competent and
workmanlike manner in accordance with the Order or SOW, as applicable.
Customer must notify Smartsheet in writing of any alleged failure to comply
with this warranty within thirty (30) days following delivery of the
Professional Services. Upon receipt of such notice, Smartsheet will either:
(a) use commercially reasonable efforts to cure or correct the failure; or
(b) terminate the Professional Services and issue a refund of prepaid fees
covering the terminated portion of the Professional Services. This Section
7.3 sets forth Customer’s exclusive rights and remedies and Smartsheet’s sole
liability in connection with this warranty.
* 7.4 Disclaimer. EXCEPT FOR THE REPRESENTATIONS AND WARRANTIES EXPRESSLY
STATED IN THIS AGREEMENT, SMARTSHEET MAKES NO REPRESENTATIONS AND DISCLAIMS
ALL WARRANTIES OF ANY KIND, WHETHER EXPRESS OR IMPLIED. WITHOUT LIMITING THE
GENERALITY OF THE FOREGOING, SMARTSHEET SPECIFICALLY DISCLAIMS ALL IMPLIED
WARRANTIES OF MERCHANTABILITY, FITNESS FOR A PARTICULAR PURPOSE, COMPLIANCE
WITH LAWS, NON-INFRINGEMENT, AND ACCURACY, AND SMARTSHEET DOES NOT WARRANT
THAT THE SERVICES OR THIRD-PARTY APPLICATIONS AND SERVICES WILL BE ERROR-FREE
OR OPERATE WITHOUT INTERRUPTIONS OR DOWNTIME.
8. Indemnification.
* 8.1 By Smartsheet. Smartsheet will defend Customer and its respective
officers, directors, and employees (“Customer Indemnified Parties”) from and
against any claims, demands, proceedings, investigations, or suits brought by
a third party alleging that Customer’s use of the Services or Customizations
in accordance with this Agreement infringes any third party intellectual
property rights (each, a “Claim Against Customer”). Smartsheet will indemnify
Customer Indemnified Parties for any finally awarded damages or settlement
amount approved by Smartsheet in writing to the extent arising from a Claim
Against Customer, and any reasonable attorneys’ fees of Customer associated
with initially responding to a Claim Against Customer. Notwithstanding the
foregoing, Smartsheet will have no obligation under this Section 8.1 to the
extent any Claim Against Customer arises from: (a) Customer’s use of the
Services or Customizations in combination with technology or services not
provided by Smartsheet, if the Services or Customizations or use thereof
would not infringe without such combination; (b) Customer Content; (c)
Smartsheet’s compliance with designs, specifications, or instructions
provided in writing by Customer if such infringement would not have occurred
but for such designs, specifications, or instructions; or (d) use of the
Services or Customizations by Customer after notice by Smartsheet to
discontinue use. If Customer is enjoined or otherwise prohibited from using
any of the Services or Customizations or a portion thereof based on a Claim
Against Customer, then Smartsheet will, at Smartsheet’s sole expense and
option, either: (x) obtain for Customer the right to use the allegedly
infringing portions of the Service or Customizations; (y) modify the
allegedly infringing portion of the Service or Customizations so as to render
it non-infringing without substantially diminishing or impairing its
functionality; or (z) replace the allegedly infringing portions of the
Service or Customizations with non-infringing items of substantially similar
functionality. If Smartsheet determines that the foregoing remedies are not
commercially reasonable or possible, then Smartsheet will terminate the
applicable Order or SOW and issue a refund of prepaid fees covering the
terminated portion of the applicable Service.
* 8.2 By Customer. To the extent permitted by applicable law, Customer will
defend Smartsheet and Smartsheet’s Affiliates providing the Services, and
their respective officers, directors, and employees (“Smartsheet Indemnified
Parties”) from and against any claims, demands, proceedings, investigations,
or suits brought by a third party arising out of Customer Content or
Customer’s use of the Services or Customizations in violation of applicable
law (each, a “Claim Against Smartsheet”). Customer will indemnify Smartsheet
Indemnified Parties for any finally awarded damages or settlement amount
approved by Customer in writing to the extent arising from a Claim Against
Smartsheet, and any reasonable attorneys’ fees of Smartsheet associated with
initially responding to a Claim Against Smartsheet.
* 8.3 Conditions. The indemnifying party’s obligations under Section 8
(Indemnification) are contingent on the indemnified party: (a) providing
timely written notice of the claim to the indemnifying party; (b) giving the
indemnifying party sole control of the defense and settlement of the claim,
on the condition that any settlement unconditionally releases the indemnified
party of all liability and does not make any admissions on behalf of the
indemnified party or include payment of any amounts by the indemnified party;
and (c) providing the indemnifying party, at the indemnifying party’s
expense, all reasonable assistance in connection with such claim. The
indemnified party may participate in the defense of the claim at its sole
cost and expense. Section 8 sets forth the indemnifying party’s sole
liability to, and the indemnified party’s exclusive remedy for, any type of
claim or action described in Section 8.
9. Limitations of Liability.
TO THE EXTENT PERMITTED BY LAW, NEITHER PARTY WILL BE LIABLE FOR ANY LOST
PROFITS, GOODWILL, OR REVENUES OR FOR ANY INCIDENTAL, CONSEQUENTIAL, SPECIAL,
INDIRECT, COVER, BUSINESS INTERRUPTION, OR PUNITIVE DAMAGES IN CONNECTION WITH
ANY CLAIM OF ANY NATURE, WHETHER IN CONTRACT, TORT, OR UNDER ANY THEORY OF
LIABILITY, ARISING UNDER THIS AGREEMENT, EVEN IF A PARTY HAS BEEN GIVEN ADVANCE
NOTICE OF SUCH POSSIBLE DAMAGES OR IF A PARTY’S REMEDY OTHERWISE FAILS OF ITS
ESSENTIAL PURPOSE.
TO THE EXTENT PERMITTED BY LAW, EACH PARTY’S ENTIRE LIABILITY UNDER THIS
AGREEMENT WILL NOT EXCEED THE FEES PAID BY CUSTOMER TO SMARTSHEET UNDER THIS
AGREEMENT FOR THE SERVICES GIVING RISE TO THE LIABILITY DURING THE TWELVE (12)
MONTHS PRIOR TO THE DATE ON WHICH THE LIABILITY AROSE. THE EXISTENCE OF MORE
THAN ONE CLAIM WILL NOT ENLARGE THIS LIMIT.
THE FOREGOING EXCLUSIONS AND LIMITS IN THIS SECTION 9 SHALL NOT APPLY TO
LIABILITY OR OBLIGATIONS ARISING UNDER SECTIONS 1.2 (RESTRICTIONS) OR 8
(INDEMNIFICATION), INFRINGEMENT OR MISAPPROPRIATION BY A PARTY OF THE OTHER
PARTY’S INTELLECTUAL PROPERTY RIGHTS, OR CUSTOMER’S OBLIGATION TO PAY FOR
SERVICES OR TAXES UNDER THIS AGREEMENT.
10. Term and Termination.
* 10.1 Term. This Agreement will remain in effect until terminated as set
forth herein or by the parties’ mutual written agreement. Orders will remain
in effect for the Term of the Services specified in such Order. EACH SERVICE
WITH A SUBSCRIPTION-BASED TERM ON AN ORDER WILL AUTOMATICALLY RENEW FOR
SUCCESSIVE ONE (1) YEAR RENEWAL TERMS (each, a “Renewal Term”) UNLESS THE
PARTIES AGREE OTHERWISE IN THE ORDER OR A PARTY PROVIDES THE OTHER PARTY
WRITTEN NOTICE (INCLUDING VIA EMAIL) OF NON-RENEWAL AT LEAST THIRTY (30) DAYS
PRIOR TO THE END OF THE THEN-CURRENT TERM. For the avoidance of doubt, any
purchases of non-subscription or one-time Services made via an Order will not
automatically renew. Each SOW will remain in effect for the period specified
therein. If no period is specified, the SOW will terminate once the
Professional Services set forth in the SOW have been completed.
* 10.2 Termination for Cause. Either party may terminate a Service or this
Agreement immediately upon written notice if the other party breaches any
material provision of an Order, SOW, or this Agreement, and fails to cure the
breach within thirty (30) days of such written notice from the non-breaching
party.
* 10.3 Effect of Termination. Upon termination of this Agreement for any
reason: (a) all Orders and SOWs under this Agreement will terminate; and (b)
all rights and obligations of the parties hereunder will cease (except as set
forth in Section 10.6 (Survival)). If Customer terminates a Service or this
Agreement for Smartsheet’s uncured breach pursuant to Section 10.2
(Termination for Cause), Smartsheet shall issue a refund of prepaid fees
covering the terminated portion of each Services’ respective Term and, if
applicable, Partner Apps. If Smartsheet terminates a Service or this
Agreement for Customer’s uncured breach pursuant to Section 10.2, Customer
shall pay any outstanding amounts payable under this Agreement for the Term
applicable to any terminated Service and, if applicable, Partner Apps.
Customer will remain obligated to pay for Professional Services rendered
through, or payable as of, the effective date such Professional Services are
terminated.
* 10.4 Return and Deletion of Customer Content. At any time during the
Term, Customer may download a backup copy of Customer Content (with file
attachments in their native formats and all other Customer Content in an
industry standard export format) from an online Service by using a
self-service feature, or may request such backup copy by written notice to
Smartsheet if such feature is not available. Upon Customer’s written request
at the time of termination or expiration of any Term, Customer’s SysAdmin
will be allowed read-only access to an online Service for thirty (30) days
following such date of termination or expiration for the sole purpose of
downloading a backup copy of Customer Content. Within one hundred eighty
(180) days following termination or expiration of any Term, Smartsheet will
delete and render Customer Content unrecoverable and, upon Customer’s written
request, certify such process in writing. Notwithstanding the foregoing,
Smartsheet may retain copies of Customer Content as part of records,
documents, or broader data sets in accordance with Smartsheet’s legal and
financial compliance obligations, on the condition that Smartsheet continues
to comply with all the requirements of the Agreement in relation to any such
retained Customer Content.
* 10.5 Suspension. Smartsheet may suspend Customer’s access to any Service
immediately if: (a) Customer fails to make a payment for more than fifteen
(15) days following its due date; or (b) Customer has, or Smartsheet
reasonably suspects based on documented evidence that Customer has, breached
Section 1.2 (Restrictions) or misappropriated or infringed Smartsheet’s
intellectual property or proprietary rights.
* 10.6 Survival. The following Sections will survive termination or
expiration of this Agreement: 2.2 (Processing); 3 (Intellectual Property and
Proprietary Rights); 4.3 (Free Services); 5.1 (Fees); 5.2 (Payment); 6
(Confidentiality); 8 (Indemnification); 9 (Limitations of Liability); 10.4
(Return and Deletion of Customer Content); 10.6 (Survival); and, to the
extent necessary to effectuate the foregoing, 11 (General).
11. General.
* 11.1 Insurance. Smartsheet will procure and maintain at its expense
commercially reasonable insurance coverage during the Term, evidenced by
Smartsheet’s certificate of insurance, which is available on the Site.
* 11.2 Publicity. Unless Customer has notified Smartsheet to the contrary in
writing (including via email), Smartsheet may disclose Customer as a customer
of Smartsheet or the named Services used by Customer or may use Customer’s
name and logo on the Site or in Smartsheet’s promotional materials.
* 11.3 United States Government End-Users. The Services provided by
Smartsheet are “commercial items” consisting in part of “commercial computer
software” and “computer software documentation,” as such terms are used in
the Federal Acquisition Regulation (FAR) and the Defense Federal Acquisition
Regulation Supplement (DFARS). In accordance with FAR 12.211 (Technical data)
and FAR 12.212 (Computer software), and DFARS 227.7102 (Commercial items,
components, or processes) and DFARS 227.7202 (Commercial computer software
and commercial computer software documentation), as applicable, the rights of
the United States government to use, modify, reproduce, release, perform,
display, or disclose computer software, computer software documentation, and
technical data furnished in connection with the Services will be pursuant to
the terms of this Agreement. This United States government rights clause is
in lieu of, and supersedes, any other FAR, DFARS, or other clause or
provision that addresses government rights in computer software, computer
software documentation, or technical data.
* 11.4 Export Compliance. Each party shall comply with applicable export
controls administered by the United States government, the member states of
the European Union, and other foreign jurisdictions (collectively, "Export
Control Regulations"). Without limiting the foregoing: (a) Customer
acknowledges that the Services, Documentation, and Customizations may be
subject to Export Control Regulations; (b) Customer will not permit Users to
access or use any Service, Documentation, or Customization in violation of
any applicable embargo restrictions; and (c) Customer is responsible for
complying with Export Control Regulations and any other local laws and
regulations which may impact Customer’s right to export, access, or use the
Services, Documentation, and Customizations.
* 11.5 Notices. Except where this Agreement permits notice via email, all
notices provided by a party under this Agreement must be in writing and sent
via internationally recognized delivery service or certified United States
mail. Notices sent via email will be deemed given one (1) business day after
being sent, and notices sent via any other authorized delivery method will be
deemed given five (5) business days after being sent. Notices must be
addressed as follows: if to Smartsheet, Attn: Legal, 10500 NE 8th Street,
Suite 1300, Bellevue, WA 98004, and for notices permitted to be sent via
email, to legal@smartsheet.com; and, if to Customer, Attn: Legal at the
billing address on record with Smartsheet that was provided by Customer, and
for notices permitted to be sent via email, to Customer's then-current
SysAdmin(s) email address. Customer may request notification of changes to
the Policies, Security Practices, and Privacy Notice via
www.smartsheet.com/notification-requests.
* 11.6 Assignment. Either party may assign this Agreement and any Orders or
SOWs in connection with a merger or similar transaction or to a company
acquiring substantially all of its assets, equity, or business, without any
requirement to obtain permission for such assignment; otherwise, neither
party may assign this Agreement or any Orders or SOWs to a third party
without the advance written consent of the other party. Subject to the
foregoing and notwithstanding any prohibitions on transferability under this
Agreement, the assigning party shall notice the non-assigning party of any
permitted assignment and this Agreement and any Orders or SOWs will bind and
inure to the benefit of the parties, their successors, and their permitted
assigns.
* 11.7 Force Majeure. A party is not liable for delay or default under this
Agreement if such delay or default is caused by conditions beyond its
reasonable control, and the party suffering from any such conditions uses
reasonable efforts to mitigate against the effects of such conditions.
* 11.8 Amendment; Waiver. Unless otherwise expressly stated herein, this
Agreement and any Orders or SOWs may be modified only by a written agreement
executed by an authorized representative of each party. The waiver of any
breach of this Agreement or of any Order or SOW will be effective only if in
writing, and no such waiver will operate or be construed as a waiver of any
subsequent breach.
* 11.9 Enforceability. If any provision of this Agreement or any Order or
SOW is held to be unenforceable, then that provision is to be construed
either by modifying it to the minimum extent necessary to make it enforceable
(if permitted by law) or disregarding it (if not permitted by law), and the
rest of this Agreement or the relevant Order or SOW is to remain in effect as
written. Notwithstanding the foregoing, if modifying or disregarding the
unenforceable provision would result in failure of an essential purpose of
this Agreement or any Order or SOW, the entire Agreement or the relevant
Order or SOW will be considered null and void.
* 11.10 Governing Law. This Agreement and any Orders and SOWs are governed by
the laws of the State of Washington, without regard to its conflicts of law
rules, and each party hereby consents to exclusive jurisdiction and venue in
the state and federal courts located in Seattle, Washington for any dispute
arising out of this Agreement or any Orders or SOWs.
* 11.11 Entire Agreement; Conflict. This Agreement, together with the
Policies and, if applicable, the DPA or the Smartsheet Agreement Supplement,
and any Orders and SOWs represent the entire agreement between Smartsheet and
Customer with respect to the Services. Downloadable Smartsheet software
expressly governed by a separate end-user license agreement presented at the
time of download or use are not governed by this Agreement. In the event of
any conflict between this Agreement and any Order or SOW, this Agreement will
govern and control unless the Order or SOW expressly and specifically
overrides terms or conditions of this Agreement. With respect to any
Services, terms and conditions included in the following items, whether
submitted or executed before or after the Term start date, are null and void:
(a) a Customer purchase order or similar document; (b) a Customer vendor
registration form or online portal; and (c) any other contemporaneous or
prior agreements or commitments regarding the Services or the other subject
matter of this Agreement. Any non-English translation of this Agreement is
provided for convenience only and in the event of any ambiguity or conflict
between translations, the English version is authoritative and controls.
* 11.12 Individual Privacy Notice. In accordance with applicable data
protection laws, Smartsheet will notify individual Users of its publicly
posted Privacy Notice available at www.smartsheet.com/legal/privacy and, as a
data controller, may process personal information collected directly from
individual Users (which may be duplicative of personal information contained
within Customer Content) as described in such Privacy Notice.
* 11.13 Revisions. Smartsheet reserves the right to revise this Agreement by
posting a revised version on the Site, which will be effective five (5) days
after posting. Continued use of the Services after the effective date of
revision will constitute Customer’s acceptance of the revised Agreement. If
Customer objects to the revisions, Customer may terminate any Orders governed
by this Agreement by providing written notice to Smartsheet prior to the
effective date of revision, and Customer will remain obligated to pay amounts
due to Smartsheet under such Orders without a refund of prepaid fees.
Customer's termination will be effective upon Smartsheet's written
acknowledgement of such termination, and in no event later than thirty (30)
days from Smartsheet's receipt of Customer's termination notice.
12. Definitions. Capitalized terms used but not otherwise defined in this
Agreement have the following meanings:
* “Affiliate” means any person or entity that owns or controls, is owned or
controlled by, or is under common control or ownership with, a party to this
Agreement, where “control” is defined as the possession, directly or
indirectly, of the power to direct or cause the direction of the management
and policies of an entity, whether through ownership of voting securities, by
contract, or otherwise.
* “Customer Content” means any data, file attachments, text, images, reports,
personal information, or other content that is uploaded or submitted to the
online Services by Customer or Users and is processed by Smartsheet on behalf
of Customer. For the avoidance of doubt, Customer Content does not include
usage, statistical, learned, or technical information that does not reveal
the actual contents of Customer Content.
* “Customizations” means all software, code, materials, ideas, deliverables,
and items that are conceived, made, discovered, written, or created by
Smartsheet’s personnel in connection with Professional Services under an
Order or SOW.
* “Disclosing Party” means the party disclosing Confidential Information to the
Receiving Party.
* “Documentation” means documentation provided by Smartsheet on the Site that
is uniformly available and applicable to all Smartsheet customers and relates
to the operation and use of the Services, including user manuals, operating
instructions, help articles, and release notes, each as updated by Smartsheet
from time to time.
* “Order” means an executed ordering document or online order issued or
otherwise approved in writing by Smartsheet that incorporates this Agreement
by reference and specifies the Services that Customer is authorized to access
and use.
* “Partner App” means a service or application developed and owned by a third
party for which Customer purchases a license from Smartsheet under an Order
and is made available to Customer exclusively in accordance with the terms
and conditions of the end-user license agreements accompanying them, except
that the payment provisions of this Agreement will apply.
* “Policies” means the Limits Policy, Acceptable Use Policy, and Travel and
Expense Policy, each as available at www.smartsheet.com/legal and updated by
Smartsheet from time to time.
* “Professional Services” means implementation, configuration, integration,
training, advisory, and other professional services related to the online
Services that are provided or controlled by Smartsheet.
* “Receiving Party” means the party receiving or accessing Confidential
Information of the Disclosing Party.
* “Services” means the Professional Services and the Subscription Services and
any other online service or application provided or controlled by Smartsheet
for use with the Subscription Services.
* “Site” means Smartsheet’s website www.smartsheet.com and any website linked
from such website that is owned or controlled by Smartsheet.
* “Smartsheet Properties” means Services, Documentation, and Customizations,
and all Smartsheet technology, software, data, methodologies, improvements,
and documentation used to provide or made available in connection with
Services, Documentation, and Customizations, and all intellectual property
and proprietary rights in and to the foregoing.
* “SOW” means an executed statement of work or similar document issued or
otherwise approved in writing by Smartsheet that incorporates this Agreement
by reference and specifies the scope of the Professional Services for
Customer.
* “Subscription Services” means the subscription-based online services and
applications that are provisioned or controlled by Smartsheet.
* “SysAdmin” means a User with certain administrative control rights over
Customer’s online Services.
* “Term” means the period of authorized access and use of a Service specified
in an Order.
* “User” means any individual permitted or invited by Customer or another User
to access and use online Services available to Customer under an Order and
the terms of this Agreement.
Last Updated: October 5, 2021
ARCHIVED VERSIONS
These are the legacy versions of the Smartsheet User Agreement and are provided
for informational purposes only.
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