IN CONSIDERATION OF

The provisions contained in this Agreement and for other good and valuable consideration, the receipt and sufficiency of which is acknowledged, the parties agree as follows:

License

1. Under this Agreement the Vendor grants to the Licensee a non-exclusive and non-transferable license (the "License") to use SmartBackup Starter Edition, Business Edition or Enterprise Edition (the "Software").
2. "Software" includes the executable computer programs and any related printed, electronic, and online documentation and any other files that may accompany the product.
3. Title, copyright, intellectual property rights and distribution rights of the Software, including all source code, remain exclusively with the Vendor. Intellectual property rights include the look and feel of the Software. This Agreement constitutes a license for use only and is not in any way a transfer of ownership rights to the Software.
4. This Agreement grants a site license to the Licensee. The Software is limited for use within the Licensee organization and is limited to a maximum number of Smartsheet Licensed Users as detailed in Vendor invoice(s).
5. The rights and obligations of this Agreement are personal rights granted to the Licensee only. The Licensee may not transfer or assign any of the rights or obligations granted under this Agreement to any other person or legal entity. The Licensee may not make available the Software for use by one or more third parties.
6. The Software may not be modified, reverse-engineered, or de-compiled in any manner through current or future available technologies.
7. Failure to comply with any of the terms under the License section will be considered a material breach of this Agreement.

License Fee

8. The annual recurring license fee paid by the Licensee will constitute the entire license fee and is the full consideration for this Agreement, as follows:

1. Annual fee: As communicated by Vendor, to be paid in advance.
2. Invoices submitted by Vendor to Licensee are due upon Invoice Date.
3. If the invoiced amount is not received by 30 days after the invoice date above, then without limiting Vendor rights, the following will be applicable:

1. Those charges may accrue a late interest at 2 percent of the outstanding balance per week, or the maximum rate permitted by the law, whichever is lower.
2. Vendor may suspend vendor services to Licensee until such amount is paid in full.

4. Vendor reserves the right to review and adjust the annual recurring license fee based on the number of Licensee Smartsheet Licensed users and occasionally to align with cost index and inflation, provided Vendor has given Licensee at least 60 days notice prior to the applicable renewal term.

Limitation of Liability

9. The Software is provided by the Vendor and accepted by the Licensee "as is". The Vendor will not be liable for any general, special, incidental or consequential damages including, but not limited to, loss of production, loss of profits, loss of revenue, loss of data (except for Vendor negligence), or any other business or economic disadvantage suffered by the Licensee arising out of the use or failure to use the Software.
10. The Vendor makes no warranty expressed or implied regarding the fitness of the Software for a particular purpose or that the Software will be suitable or appropriate for the specific requirements of the Licensee.
11. The Vendor does not warrant that use of the Software will be uninterrupted or error-free. The Licensee accepts that software in general is prone to bugs and flaws within an acceptable level as determined in the industry.
12. The Software is dependent on the availability and consistency of the Smartsheet application, the Smartsheet API, and all related Smartsheet components in order to operate successfully. The Vendor will not be liable for any general, special, incidental, or consequential damages including, but not limited to, loss of production, loss of profits, loss of revenue, loss of data, or any other business or economic disadvantage suffered by the Licensee arising out of errors caused by or the unavailability of the Smartsheet application, Smartsheet API, or related Smartsheet components, or caused by changes to the Smartsheet API that may render the Software inoperable, or cause some features and functions of the Software to stop working or work in unexpected ways.

Warrants and Representations

13. The Vendor warrants and represents that it is the copyright holder of the Software. The Vendor warrants and represents that granting the license to use this Software is not in violation of any other agreement, copyright, or applicable statute.

Acceptance

14. All terms, conditions and obligations of this Agreement will be deemed to be accepted by the Licensee ("Acceptance") upon execution of this Agreement.

User Support

15. The Licensee will be entitled to email support, on a best effort basis, available from 8:00 AM to 6:00 PM US Pacific Time, weekdays only, at no additional cost.
16. The Licensee will be entitled to maintenance upgrades and bug fixes, at no additional cost, for the duration of the Agreement. The responsibility is on the Licensee to ensure that all available maintenance upgrades and bug fixes are installed in a timely manner.

Term

17. The term of this Agreement will begin on Acceptance and will continue for a period of one year and shall automatically renew for successive terms of one year unless either party provides written notice to the other of its intent to terminate the agreement at least 30 days before the expiry of the initial term and any subsequent renewed term, and in accordance with the section “License Fee” above. At the end of the term of this Agreement the Licensee must destroy all copies of the Software in their possession.

Termination

18. This Agreement will be terminated, and the License forfeited where the Licensee has failed to comply with any of the terms of this Agreement or is in breach of this Agreement. On termination of this Agreement for any reason, the Licensee will promptly destroy the Software or return the Software to the Vendor.

Force Majeure

19. The Vendor will be free of liability to the Licensee where the Vendor is prevented from executing its obligations under this Agreement in whole or in part due to Force Majeure, such as earthquake, typhoon, flood, fire, and war or any other unforeseen and uncontrollable event where the Vendor has taken any and all appropriate action to mitigate such an event.

Additional Clauses

20. Development of additional features are dependent on the availability of required Smartsheet API capabilities.

Governing Law

21. The Parties to this Agreement submit to the jurisdiction of the courts of the State of California for the enforcement of this Agreement or any arbitration award or decision arising from this Agreement. This Agreement will be enforced or construed according to the laws of the State of California.

Miscellaneous

22. This Agreement does not create or imply any relationship in agency or partnership between the Vendor and the Licensee.
23. If any term, covenant, condition or provision of this Agreement is held by a court of competent jurisdiction to be invalid, void or unenforceable, it is the parties' intent that such provision be reduced in scope by the court only to the extent deemed necessary by that court to render the provision reasonable and enforceable and the remainder of the provisions of this Agreement will in no way be affected, impaired or invalidated as a result.
24. This Agreement contains the entire agreement between the parties. All understandings have been included in this Agreement. Representations which may have been made by any party to this Agreement may in some way be inconsistent with this final written Agreement. All such statements are declared to be of no value in this Agreement. Only the terms of this Agreement will bind the parties.
25. This Agreement and the terms and conditions contained in this Agreement apply to and are binding upon the Vendor's successors and assigns.