HomeMy WebLinkAbout2023-05-23; City Council; Resolution 2023-138RESOLUTION NO. 2023-138
A RESOLUTION OF THE CITY COUNCIL OF THE CITY OF CARLSBAD,
CALIFORNIA, AUTHORIZING THE CITY MANAGER TO EXECUTE AN
IMPLEMENTATION SERVICES AGREEMENT WITH SMARTSHEET, INC. FOR
SMARTSHEET PORTFOLIO PROJECT MANAGEMENT SOFTWARE IN AN
AMOUNT NOT TO EXCEED $49,140 WITH A $10,000 CONTINGENCY
WHEREAS, the City Council of the City of Carlsbad, California has determined that the most
effective way to operate and support the City of Carlsbad's project management requirements is with
Smartsheet Portfolio Advance Silver with Enterprise Plan plus Pro Support Licenses; and
WHEREAS, the city does not currently have a project management solution; and
WHEREAS, the city issued a challenge-based Request for Qualifications (RFQ) for a project
management solution and based on that RFQ, staff selected Smartsheet Portfolio Advance Silver with
Enterprise Plan plus Pro Support Licenses as the best available solution to meet the city's needs; and
WHEREAS, Smartsheet, Inc. provides implementation services for Smartsheet Portfolio Advance
Silver with Enterprise Plan plus Pro Support Licenses (i.e., the project management software); and
WHEREAS, funding is available in the Strategic Digital Transformation Investment Program
(SDTIP) to fund the implementation services for the project management software.
NOW, THEREFORE, BE IT RESOLVED by the City Council of the City of Carlsbad, California, as
follows:
1.That the above recitations are true and correct.
2.That the agreement for implementation services of Smartsheet Portfolio Advance Silver
with Smartsheet, Inc, attached as Attachment "A", is approved and the city manager is
authorized to execute all required documents on behalf of the city.
3.That the not to exceed amount for the implementation services agreement with
Smartsheet, Inc. will not exceed $49,140, with a $10,000 contingency.
4.That the funding for the agreement is budgeted in the fiscal year 2022-23 SDTIP Project
Portfolio Management Tool and Consulting.
PASSED, APPROVED AND ADOPTED at a Regular Meeting of the City Council of the City of
Carlsbad on the 23rd day of May, 2023, by the following vote, to wit:
AYES:
NAYS:
ABSTAIN:
ABSENT:
Blackburn, Bhat-Patel, Acosta, Burkholder, Luna.
None.
None.
None.
KEITH BLACKBURN, Mayor
SHERRY FREISINGER, City Clerk
(SEAL)
(Lt
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SERVICES AGREEMENT
This Services Agreement (“Agreement”) is entered into by and between Smartsheet Inc. ("Smartsheet") and City of Carlsbad
("Customer"). This Agreement governs Customer’s access to and use of the Services provided or controlled by Smartsheet and is
effective as of the date of the last signature below (“Effective Date”).
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.
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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. The terms governing any
reimbursement for reasonable, out-of-pocket expenses incurred by Smartsheet in the course of providing Professional Services shall
be agreed upon by both parties in an applicable SOW, prior to such expenses being incurred.
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. 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.
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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.
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6.3.1 Public Records. Smartsheet acknowledges that Customer is a California public agency subject to requests of
information from the public pursuant to the California Public Records Act (CA Government Code § 6250 et seq) and the California
Civil Discovery Act (California Code of Civil Procedure § 2016.010 et seq.), together (“Public Disclosure Law”). In the event of a
Public Disclosure Law request concerning this Agreement or the Subscription Service, Government Customer shall consult with
Smartsheet before it determines (at its discretion and pursuant to its obligations under the Public Disclosure Law) whether the
information is exempted from disclosure. The terms of the Agreement are considered Smartsheet’s confidential and
proprietary information and any other Confidential Information belonging to Smartsheet is exempt from such Public Disclosure
Law requests, to the extent permitted by law.
6.3.2 Response. Smartsheet will use reasonable efforts, but no later than ten (10) days, to respond to any Customer
request for information regarding Smartsheet's Subscription Service concerning Public Disclosure Law requests and collaborate
with Customer to determine the scope of disclosure.
6.3.3 Disclosure. Customer is responsible for evaluating and responding to any Public Disclosure Law request related to
any Customer Content uploaded to the Subscription Service.
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, subject to Customer’s
liability that may be limited by applicable law.
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
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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. To the fullest extent permitted by law, Smartsheet will indemnify, defend, and hold harmless the Customer
and its respective officers, elected and appointed officials, 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 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 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 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. Section 8 will
survive the expiration or termination of this Agreement.
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 TWICE 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.
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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 remains in effect for the initial Term specified therein and any mutually agreed subsequent renewal Terms (each a “Renewal
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 Termination for Convenience. Customer may terminate this Agreement at any time, for any reason or no reason, upon thirty
(30)days’ written notice to Smartsheet; provided that Customer will not be entitled to any refund of prepaid fees and will remain
obligated to pay any outstanding amounts owed to Smartsheet under this Agreement or any Order or SOW.
10.4 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 8 (Indemnification) and
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.
10.5 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.
10.6 Suspension. Smartsheet may suspend Customer’s access to any Service immediately if: (a) Customer fails to make a payment
for more than thirty (30) 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.
10.7 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); 10.5 (Return and Deletion of Customer Content); 10.7 (Survival); and, to the extent necessary to effectuate the foregoing,
11 (General).
11.General.
11.1 Insurance. Smartsheet will, at its expense, obtain and maintain for the duration of this Agreement, including any and all
amendments, reasonable insurance coverage, evidence by Smartsheet’s certificate of insurance, which is available on the Site, with
limits no less than provided below insurance against claims for injuries to persons or damage to property which may arise out of or in
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connection with performance of the services by Smartsheet or Smartsheet’s employees. The insurance carrier is required to have a
current Best's Key Rating of not less than "A-:VII"; OR with a surplus line insurer on the State of California’s List of Approved Surplus
Line Insurers (LASLI) with a rating in the latest Best’s Key Rating Guide of at least “A:X”; OR an alien non-admitted insurer listed by the
National Association of Insurance Commissioners (NAIC) latest quarterly listings report. The requirements set forth in this section as
to types, limits and approval of insurance coverage to be maintained by Smartsheet will not in any manner limit the liabilities and
obligations assumed by Smartsheet under this Agreement.
11.1.1 Coverage and Limits.
Smartsheet will maintain the types of coverage and limits indicated below unless the Customer’s Risk Manager or City Manager
approves a lower amount. These amounts of coverage will not constitute any limitations or cap on Smartsheet’s indemnification
obligations under this Agreement. The Customer, its officers, agents and employees make no representation that the limits of the
insurance specified to be carried by Smartsheet pursuant to this Services Agreement are adequate to protect Smartsheet. If
Smartsheet believes that any required insurance coverage is inadequate, Smartsheet may obtain such additional insurance
coverage, as Smartsheet deems adequate, at Smartsheet’s sole expense.
11.1.2 Commercial General Liability (CGL) Insurance. Insurance written on an “occurrence” basis including personal & advertising
injury with limits no less than $1,000,000 per occurrence and $2,000,000 general aggregate. If a general aggregate limit applies,
either the general aggregate limit shall apply separately to this project/location or the general aggregate limit shall be twice the
required occurrence limit.
11.1.3 Workers' Compensation and Employer's Liability. Workers' Compensation limits as required by the California Labor Code
or the equivalent statutory coverage for their home state.
11.1.4 Professional Liability. Errors and omissions liability, including Cyber Liability, appropriate to Smartsheet’s profession with
limits of not less than $5,000,000 aggregate and $5,000,000 each occurrence.
11.1.5 Additional Provisions. Smartsheet will ensure that the policies of insurance required under this Agreement contain, or are
endorsed to contain, the following provisions:
11.1.5.a The Customer will be added as an additional insured on Commercial General Liability and such policy will be
primary and noncontributory.
11.1.5.b Smartsheet will obtain occurrence coverage, excluding Professional Liability and Cyber Insurance,
which will be written as claims-made coverage.
11.1.5.c This insurance will be in force during the life of this Services Agreement and any extensions of it and will not be
canceled without thirty (30) days prior written notice to the Customer pursuant to the Notice provisions of this Agreement.
11.1.7 Providing Certificates of Insurance and Endorsements. Following the Customer’s execution of this Agreement, Smartsheet
will furnish certificates of insurance and any applicable endorsements to the Customer.
11.2 Intentionally Omitted.
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,
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Smartsheet Services Agreement (v1021)8 of 15
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, 500 108th Ave NE, Suite
200, Bellevue, WA 98004, and for notices permitted to be sent via email, to legal@smartsheet.com; and, if to Customer, legal notices
will be sent via USPS or overnight delivery to: Office of the City Attorney, 1200 Carlsbad Village Drive, Carlsbad, CA 92008., 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 obtainn 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. During the electronic provisioning of paid online Services, any user
agreement presented to a User will be considered null and void. 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.
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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 Agreement Supplement. Notwithstanding anything to the contrary, Customer is a “U.S Government Entity” for purposes of
the Smartsheet Agreement Supplement, a current copy of which is attached here as Exhibit A, therefore any clauses regarding
indemnification, limited liability, or jurisdictional laws are hereby amended or waived, and shall not apply, except to the extent allowed
by applicable law.
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.
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"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.
Smartsheet Inc.
By: GDocuSlgned by: ��!� .. 5/9/2023
(sign here/date)
By:
RLSBAD, a municipal corporation of
f California
City Manager
Mike Artnz CRO & EVP WW Field Operations
(print name/title)
By:
(sign here/date)
(print name/title)
APPROVED AS TO FORM:
CINDIE K. McMAHON, City Attorney
Deputy City Attorney
Smartsheet Services Agreement (v1021)1O of 15
ATTEST:
(li)/ r-f SHERRY FREISINGER
City Clerk
Smartsheet Services Agreement (v1021)11 of 15
EXHIBIT A
SMARTSHEET INC.
Agreement Supplement
The terms and conditions of this Smartsheet Agreement Supplement (“Supplement”) supplement and amend the
agreement between Smartsheet Inc. (“Smartsheet”) and Customer that governs Customer’s access to and use of
Smartsheet Services (the “Agreement”) if and only if Customer or Customer's Service qualifies under applicability
provisions as indicated below and the Agreement or an Order incorporates this Supplement by reference. If there is any
conflict between this Supplement and the Agreement, the applicable terms in this Supplement will prevail. Capitalized
terms not defined in this Supplement have the meanings set forth in the Agreement.
For purposes of this Supplement, “U.S. Government Entity” means a federal agency, federally funded agency, state, or
local or tribal government entity in the United States. Nothing in this Supplement is intended to qualify Smartsheet as a
government contractor or subcontractor for any federal, state, local, or foreign government.
Smartsheet reserves the right to revise this Supplement by posting a revised version on the Site, which will be effective
upon Customer’s renewal of any Services or purchase of additional Services via an Order. For the avoidance of doubt,
continued access to and use of the Services after the effective date of any such revision will constitute Customer’s
acceptance of the revised Supplement.
1.Customer: U.S. Government Entities.
1.1. Applicability. The provisions in this Section 1 of this Supplement apply to a Customer that is a U.S. Government Entity
(“Government Customer”).
1.2. Governing Law. If required by the laws governing the establishment of the Government Customer ("Customer
Jurisdictional Laws"), the Agreement and this Supplement will be governed by the Customer Jurisdictional Laws,
without regard to conflict of law rules.
1.3. Customer Users. “Customer” within the Agreement shall mean the Government Customer entity itself and shall not
apply to or bind any individual User. Smartsheet will look solely to Government Customer to enforce the Agreement
and this Supplement in the event of any violation or breach of the Agreement or this Supplement by such User,
subject to applicable laws.
1.4. Liability. Liability for any breach of the Agreement or this Supplement or any claim arising from the Agreement or
this Supplement will be limited pursuant to the terms of the Agreement as determined under the Federal Tort Claims
Act and the Contracts Disputes Act or other applicable law.
1.5. Indemnification. Any provisions in the Agreement related to Government Customer’s indemnification obligations are
hereby waived and shall not apply, except to the extent allowed by applicable law.
2.Customer: Non-Government Entity Using Smartsheet Gov.
2.1. Applicability. The provisions of this Section 2 of this Supplement apply to a Customer that is not a U.S. Government
Entity (“Non-Government Customer”) accessing and using the Smartsheet Gov cloud service provisioned according
to certain Federal Risk and Authorization Management Program security control baselines (“FedRAMP Controls”) at
https://app.smartsheetgov.com (“Smartsheet Gov”).
2.2. Service References. Any reference to the “Subscription Service” in the Agreement will be deemed to refer to
Smartsheet Gov.
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2.3. FedRAMP Controls. Smartsheet will meet its reported FedRAMP Controls notwithstanding any security controls
described in the Agreement.
2.4. U.S. Person. Non-Government Customer represents and warrants that Non-Government Customer is a person who
is a citizen of or lawful permanent resident in the United States, or a corporation, partnership, or other organization
organized under the laws of the United States.
2.5. Processing Government Data. Non-Government Customer will process Customer Content in Smartsheet Gov on
behalf of a U.S. Government Entity (“Government Content”) in compliance with all applicable laws, statutes,
regulations, and such U.S. Government Entity’s policies and instructions.
2.6. Security Incident. If requested by Smartsheet to fulfill Security Incident obligations, Non-Government Customer will
provide Smartsheet with the identity and contact information of each U.S. Government Entity for which it processes
Government Content.
3.Customer: Educational Institutions.
3.1. Applicability. The provisions in this Section 3 of this Supplement apply to a Customer that is an educational agency
or institution that receives funds under an applicable program of the United States Department of Education
(“Education Customer”).
3.2. FERPA. For the purposes of the Family Educational Rights and Privacy Act (“FERPA”), Smartsheet is a “school official”
with a “legitimate educational interests,” as those terms have been defined under FERPA and its associated
implementing regulations. Smartsheet agrees to abide by the limitations and requirements imposed by 34 CFR
99.33(a) on school officials. Education Customer understands that it has control over and responsibility for education
records uploaded or submitted to the Services. Education Customer is responsible for obtaining any parental consent
required by applicable law for any User’s access or use of the Services granted by the Education Customer to User or
other third parties. Education Customer acknowledges its responsibility to convey notification, on behalf of
Smartsheet, to students (or, with respect to a student under eighteen (18) years of age and not in attendance at a
postsecondary institution, to the student’s parent) of any judicial order or subpoena requiring the disclosure of
education records within the Services as may be required under applicable law.
4.Service: Event Reporting.
4.1. Applicability. The provisions in this Section 4 of this Supplement apply to a Customer accessing or using Event
Reporting.
4.2. Definitions.
4.2.1. “Data Protection Laws” means to the extent applicable, the data protection or privacy laws of any
country, including but not limited to the General Data Protection Regulation 2016/679 (“GDPR”) and
California Consumer Privacy Act of 2018 (“CCPA”).
4.2.2. “Data Controller” means an entity that determines the means and purpose of processing data.
4.2.3. “Event Reporting” means the event reporting Service feature and application programming interface or
similar development tool purchased under a Smartsheet Order which enables Customer to access Event
Reporting Data.
4.2.4. “Event Reporting Data” means data derived from Services Usage Data that Smartsheet enables Customer
to access and use through Event Reporting.
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4.2.5. “Joint Controller” means a Data Controller, that jointly with another Data Controller, determines the
purposes and means of processing personal data (as defined under Data Protection Laws).
4.2.6. “Service Usage Data” means usage data generated by Users in using Smartsheet Services that does not
reveal the contents of Customer Content.
4.3. Details of Processing.
4.3.1. Smartsheet is sole and independent Data Controller of Service Usage Data.
4.3.2. Customer may independently process Event Reporting Data by its own means and for its own business
purposes as a Data Controller (including, but not limited to, Customer’s use of any third party tools used
to display or analyze such data), subject to this Supplement and the Agreement.
4.3.3. For the avoidance of doubt, Smartsheet, with respect to Service Usage Data, and Customer, with respect
to Event Reporting Data, are each separate Data Controllers and are not Joint Controllers of such
respective data.
4.4. Customer Responsibilities. Customer, as Data Controller of Event Reporting Data, is subject to the following
conditions:
4.4.1. Customer will process Event Reporting Data in compliance with applicable Data Protection Laws and only
for its own business purposes.
4.4.2. Customer will implement appropriate physical, technical, and organizational measures that are designed
to ensure and protect the security, integrity, and confidentiality of Event Reporting Data and to protect
against unauthorized processing, loss, use, disclosure, acquisition of, or access to, such data.
4.4.3. Customer will provide all applicable notices to, and gain any necessary consents from, data subjects prior
to processing Event Reporting Data (including, but not limited to, any employee notice requirements
under Data Protection Laws).
4.4.4. Customer may transfer Event Reporting Data to third parties only under written contracts that guarantee
at least the same level of data protection as provided for in the Agreement and this Supplement and will
remain responsible for such third party’s failure to comply with such terms.
4.4.5. Customer is prohibited from selling Event Reporting Data, as the term “sale” is used in the California
Consumer Privacy Act of 2018.
4.4.6. Customer is responsible for fulfilling requests from data subjects and supervisory authorities with respect
to Event Reporting Data that it processes.
4.4.7. If Customer receives a data subject request or a request from a supervisory authority relating to Event
Reporting Data, the recipient will promptly forward such request to the other party unless prohibited by
law.
4.5. International Transfers. If Event Reporting Data is transferred to a country or territory outside the European
Economic Area, the parties agree to the Controller to Controller Standard Contractual Clauses 2004 (Set II)
(Commission Decision 2004/915/EC) (“SCCs”) which are hereby incorporated into this Supplement and subject to the
following additional terms:
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4.5.1. Smartsheet, including its relevant affiliates, is the data exporter and Customer is the data importer and
the governing law of the SCCs is the choice of jurisdiction stipulated in the Agreement;
4.5.2. for purposes of clause II(h) of the SCCs, Customer hereby selects option (iii) and agrees to be governed by
and comply with the data processing principles set out in Annex A to the SCCs;
4.5.3. for the purpose of Annex B to the SCCs: (i) data subjects are those individuals whose personal data is
contained in Event Reporting Data; (ii) the purpose of the transfer is to provide the Services, including
Event Reporting to Customer; (iii) the category of data is usage data; and (iv) the contact points for data
protection queries are the parties’ respective contacts for matters under the Agreement; and
4.5.4. to the extent the terms of the SCCs conflict with other terms of the Agreement, the terms of the SCCs will
control.
4.6. Order of Precedence. In the event of a conflict between this Supplement and the Agreement or any data processing
terms between the parties, the provisions of this Supplement will control with respect to the processing of Event
Reporting Data.
5.Service: Learning Services.
5.1. Applicability. The provisions in this Section 5 of this Supplement apply to a Customer accessing or using Smartsheet
University All Access, Smartsheet vILT (Virtual Instructor-led Training), Smartsheet eLearning or any other similar
online learning Services Smartsheet may make available to Customer (collectively, “Learning Services”).
5.2. Service References. Any reference to or use of the term “Service” in the Agreement will be deemed to include
Learning Services.
5.3. Account Creation. Users can only access and use a Learning Service by providing the email address used in association
with the Subscription Service account registered with such Learning Service.
5.4. Event Recordings. Smartsheet may (directly or through the use of third parties) take photographs or make recordings
when providing a live Learning Service (each, an “Event”). By attending an Event, Customer consents to Smartsheet’s
use of such photos and recordings (which may include a User’s voice and/or likeness), without payment of any kind,
for any legitimate business purpose, which may include use in our marketing materials and publications, and internal
business purposes. Customer is responsible for collecting any necessary consents or providing any applicable privacy
notices or terms and conditions to Users participating in Events.
5.5. Event Conduct. Customer is responsible for its Users’ compliance with any rules or standards of conduct made
available by Smartsheet or the relevant third party entity hosting the Event, including all applicable safety and health
regulations (collectively, “Event Rules”). If a User acts in violation of the Event Rules or in an unsafe or careless
manner at any time during the Event (“Prohibited Conduct”): (a) Smartsheet may remove the User from the Event
and Customer will not be entitled to receive any refund; and (b) Customer will defend, indemnify, and hold harmless
Smartsheet and the relevant third party host, and their respective employees, officers, directors, and agents against
all third-party claims, losses, or damages to persons or property, governmental charges or fines, and costs (including
reasonable attorney's fees) arising out of the Prohibited Conduct.
5.6. Communications. By registering for the Learning Services, Customer authorizes Smartsheet to send (including via
email or by phone) information regarding the Learning Services to Users or Customer, including: (a) notices about
use or misuse of the Learning Services; (b) updates to the Learning Services; and (c) Event related information.
5.7. Modifications. Smartsheet reserves the right to modify the Learning Services in its sole discretion, including by making
updates or changes to content, materials, course descriptions and information used in Learning Services or for an
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Event, and Smartsheet does not guarantee the availability of any specific content, materials, course descriptions or
information after a Learning Service is delivered.
5.8 Specific Commercial Terms.
5.8.1 Smartsheet University vILT course registration expires ninety (90) days after purchase. Users will have the
ability to reschedule or cancel a course up to seven (7) days prior to the course start date. If a User is no
longer able to attend the virtual class due to schedule changes by Smartsheet, Customer may request a
refund.
5.8.2 Smartsheet eLearning fees are charged annual in advance, and allow for one year of access to on-demand
training available at smartu.smartsheet.com.
6.Service: Bridge by Smartsheet.
6.1. Applicability. The provisions in this Section 6 of this Supplement apply to a Customer accessing or using the online
Service referred to as Bridge by Smartsheet (“Bridge”).
6.2. Service References. Any reference to or use of the term “online Services” in the Agreement will be deemed to include
Bridge.
6.3. Template Integrations. Pre-built template integrations to certain Third Party Products that are included with Bridge
(“Template Integrations”) are provided as-is and solely for convenience, and Smartsheet has no responsibility for
the availability of and does not endorse such Third Party Products. SMARTSHEET EXPRESSLY DISCLAIMS ALL
WARRANTIES, WHETHER EXPRESS OR IMPLIED, REGARDING ANY TEMPLATE INTEGRATION’S FITNESS FOR A
PARTICULAR PURPOSE, AND SMARTSHEET DOES NOT GUARANTEE THE ACCURACY, COMPLETENESS, OR USEFULNESS
OF A TEMPLATE INTEGRATION.
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Smartsheet Inc.
Statement of Work for Smartsheet PPM Core Package
Statement of Work
This Statement of Work (“SOW”) shall be effective as of the date of last signature below (the “Effective Date”) and
is entered into by and between Smartsheet Inc. (“Smartsheet”) and Customer, whose legal entity name is listed below.
This SOW is governed by, and hereby incorporates by reference, that certain agreement governing your company’s
receipt and/or use of professional services provided by Smartsheet, or if there is not such an agreement, the Terms &
Conditions for Add-Ons and Professional Services available at https://www.smartsheet.com/enterprise-
supplemental-terms (the “Agreement”). Smartsheet may assign any employees or subcontractors to perform the
professional services specified in this SOW. This SOW may not be amended except in writing signed by an authorized
representative of each party. To the extent this SOW conflicts with the Agreement, this SOW shall control. Capitalized
terms used but not defined in this SOW have the meanings ascribed to them in the Agreement.
1.CONTACTS
The parties designate the following persons as their respective project managers to manage the performance of
Professional Services set forth in this SOW:
Customer Smartsheet
Customer Legal Entity Name: City of Carlsbad
Primary
Contact:
Name: Rachel Muller Professional Services
E-mail:Rachel.Muller@carlsbadca.gov services@smartsheet.com
Phone: 442-339-5746
Secondary
Contact:
Name: Doug Kappel Laura Bravo
E-mail:doug.kappel@carlsbadca.gov laura.bravo@smartsheet.com
Phone: 760-602-2791
Billing
Information:
Name: Doug Kappel Smartsheet Finance
E-mail:Doug.Kappel@carlsbadca.gov Finance@smartsheet.com
Phone: 760-602-2791 (855) 420-2395
Address: 1635 Faraday Avenue
City, State,
Zip: Carlsbad, California 92008-7314
Is a Purchase
Order required
by Customer?
Yes Project Code: PR-041492 -
City of Carlsbad
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Smartsheet Inc.
Statement of Work for Smartsheet PPM Core Package
2.SCOPE OF WORK
The following outlines the general scope, and approach, of a typical Smartsheet Services engagement. Sign-off will
be requested at the end of each Phase [See Section 3 for phase-level details and Section 5 for the schedule] in order
to proceed with the next Phase. Phase-level sign-offs will be tracked within the Engagement Toolkit that will be
shared with the customer at project kickoff.
The Customer is seeking to collaborate with Smartsheet to conduct remote services activities to build a Smartsheet
Solution (“Solution”). Based upon Customer’s needs, Smartsheet and the Customer agree upon the following scope:
(a)Smartsheet Portfolio Project Management (“PPM”) Solution Development for demand intake, work
execution, and portfolio reporting PPM disciplines [See Section 3 for details]
○One (1) Smartsheet Control Center Blueprint leveraging Smartsheet’s proprietary Control Center
application (“SCC”)
○Demand intake
■One (1) project request form
■One (1) project intake Sheet
○Work execution
■One (1) project toolkit containing the following objects:
●Sheets:
○Project plan
○RAID log
○Project team
○Checklist
○Metadata/metrics
●Reports:
○Milestone status
○Upcoming tasks
○Past due tasks
○RAID Report
●Dashboard:
○Project Dashboard
○Portfolio reporting
■Three (3) portfolio Reports:
●All projects
●All open RAID
●All past due tasks
■Two (2) portfolio Sheets:
●portfolio summary
●portfolio metrics
■One (1) Portfolio Dashboard
○Portfolio Work Apps
■Three (3) roles
(b)Smartsheet product and Solution training
○All sessions outlined below are up to two (2) hours in duration.
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Smartsheet Inc.
Statement of Work for Smartsheet PPM Core Package
■Attendee limitations are noted for each topic/session:
●Up to four (4) virtual, instructor-led training sessions on Smartsheet’s core capabilities
for up to twenty-five (25) attendees per session.
○Introduction to Smartsheet & SCC
○Plan, track, automate
○Reports & Dashboards
○SCC Admin
●Up to one (1) virtual, consultant-led SCC admin session, for up to ten (10) attendees
■Up to three (3) virtual, consultant-led end-user sessions, for up to ten (10) attendees
○Solution documentation
(c)Smartsheet discipline enablement materials
○Complete a PPM maturity assessment to understand current maturity level across the three
foundational PPM Disciplines (as that term is defined below).
○Co-develop a stakeholder analysis that provides a breakdown of key stakeholders, their personal
maturity within the PPM disciplines, and critical requirements for interacting with a future state
solution, all mapped to the organizational hierarchy.
○Co-develop a data dictionary containing key terminology used throughout the solution.
○Discipline-specific discovery and enablement activities including
■Discipline and capability overview
■Requirements/process review
■Current pain points
■Future benefits
(d)Next steps planning
○Smartsheet PPM roadmap incorporating the six PPM disciplines (see Appendix A and B) and
subsequent capabilities
Any items not explicitly listed above shall be out of scope and shall require a separate SOW or an amendment to this
SOW.
Assumptions:
1.Smartsheet PPM Solution development
a.The Six PPM disciplines include demand intake, work execution, portfolio reporting, strategic
planning, portfolio prioritization, and work sourcing and planning. Only demand intake, work
execution, and portfolio reporting (together, the “PPM Disciplines”) would be included in the
scope of this work. Additional disciplines will be incorporated into the Smartsheet PPM roadmap.
The three PPM Disciplines that are in scope are explained in greater detail in Appendix A.
b.The data dictionary and stakeholder analysis are meant to be living documents that grow as the
solution matures over time and will be primarily owned by Customer to update.
c.Custom integrations to any external systems and/or databases (including those provided by third
parties) are out of scope.
d.Smartsheet will provide Customer with reasonable guidance on data migration activities.
Customer is responsible for conducting and/or implementing such activities as deemed necessary
by Customer in its sole discretion.
e.Financial forecasting and rolling month tracking are out of scope.
f.Customer project types shall fit within a process and solution that is standardized to be consistent
across all project types. Aspects of the solution that shall be standardized may include
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Smartsheet Inc.
Statement of Work for Smartsheet PPM Core Package
notifications, column names and types, approval workflows, reports, metrics, and dashboards. The
exception to this shall be the ability to customize the tasks on a project plan based on project type.
g.The inclusion of Smartsheet’s proprietary add-on application Bridge by Smartsheet (“Bridge”)
offering workflows in any phase, including training, is out of scope.
h.Smartsheet will design a solution that contains a demand intake, project execution, and portfolio
Reporting process which is facilitated by the SCC application. Smartsheet will recommend the use
of premium capabilities as a part of the overall solution design but will require a subscription for
these premium applications which is out of the scope of this engagement.
i.Resource planning and/or capacity planning shall require a Resource Management by Smartsheet
subscription and is out of scope for this engagement.
2.Smartsheet product and Solution training
a.Smartsheet personnel will provide Customer with product-specific training focused on the core
capabilities of the Smartsheet Service. Such training will also include an introduction to SCC. If
desired training sessions exceed the included session count provided by this SOW, Customer shall
work with Smartsheet consultants to sign an addendum of hours to the statement of work to allow
for the requested training to be completed within the budget of the contract.
b.Custom documentation and solution-specific training will be provided by Smartsheet personnel to
Customer so that Customer will be equipped to operate the Solution independently post-
engagement. In the event that the requested documentation causes the forecasted work to exceed
the available budget, Customer shall work with Smartsheet consultants to reprioritize work so that
the remaining budget is not to be exceeded, or sign an addendum of hours to the statement of work
to allow for the requested documentation to be completed within the budget of the contract.
c.A formalized change management process is out of scope.
3.Next steps planning
a.The Smartsheet PPM roadmap will be developed in collaboration with the primary stakeholder
group via Smartsheet and will contain phased recommendations, inclusive of the six PPM
Disciplines and the subsequent capabilities, organized by a current’s current and desired maturity
level. Please review Appendix A and B to see the six PPM Disciplines in greater detail.
3.SOLUTION DEVELOPMENT PHASES
For the general purposes of conducting the solution development, Smartsheet’s tasks will consist of the following:
Phase Objectives Activities Acceptance Criteria Estimated
Hours
Align Define the strategy and
co-build the foundation
with a focus on data
consistency
●Data dictionary
●Stakeholder
analysis
●Organizational
hierarchy
●Current pain
points & future
benefits
The Smartsheet
Consulting team has
determined that enough
data has been collected
to develop the MVP
(Minimum Viable
Product) for demand
intake, work
execution, and
portfolio reporting.
20
Design Establish the core of the
solution focusing on
●User stories
●Requirements &
The Smartsheet
Consulting team has
25
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Smartsheet Inc.
Statement of Work for Smartsheet PPM Core Package
people and process process review
●Future state
process design
determined that enough
data has been collected
to develop the MVP
(Minimum Viable
Product) for demand
intake, work
execution, and
portfolio reporting.
Develop Modify & iterate on
PPM Core Solution with
key inputs from the
Design phase.
●PPM core
Solution demo
●Review &
iteration sessions
●Customer
feedback &
testing
●Final solution
review
The PPM Core
Solution MVP
(Minimum Viable
Product) is developed
based on inputs from
the Align and Design
phases.
20
Enable Empower your team to
own the solution &
facilitate discipline
enablement activities for
demand intake, work
execution, & portfolio
Reporting
●PPM phased-out
implementation
roadmap
●PPM & Solution
enablement
(documentation
& training)
All product and
Solution training have
been completed and
the discipline
enablement deck has
been reviewed in its
entirety with
stakeholders defined in
the Align phase.
50
Deploy Provide solution
deployment support to
you & your stakeholders
●Roll-out/deploy
support
●Solution
adjustment
support
●Cont. PPM &
Solution
enablement
Ten (10) business days
after the
Enable phase has
passed.
55
Maintain Establish monthly health
checks per the schedule
set in Section 6
Provide adjustments to
solution, as needed.
Handoff to Account
Team and Customer
Success Team
completed
10
Customer and Smartsheet shall utilize a formal backlog sheet to manage the prioritization, estimated level of effort,
and timing of requests for Smartsheet involvement.
Disclaimer. Smartsheet consultants and personnel are experts in the Smartsheet Subscription Service and are not in
any way providing legal, compliance, or any other non-Subscription Service or in-scope advice to Customer.
Customer must be subscribed to the appropriate level of Smartsheet Subscription Service in order to receive any
applicable customized deliverables, if described above. In addition, if Customer’s subscription has a limit on the
number of Sheets, Reports or Dashboards available to Customer, Customer is responsible for ensuring that there is
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Smartsheet Inc.
Statement of Work for Smartsheet PPM Core Package
adequate capacity within those limits for Smartsheet to provide the items above or Customer will be required to
purchase additional capacity (via a separate order).
4.CUSTOMER RESPONSIBILITIES
In order to meet the obligations of this work effort and to achieve the desired results, Customer accepts the
following responsibilities in respect of the project:
●Maintain senior management sponsorship for the consulting.
●Host and/or facilitate the availability of personnel to participate in the respective product training
session(s).
●Provide timely access to appropriate personnel for interviewing and review.
●Maintain overall responsibility for management decisions concerning the consulting, and retain ultimate
responsibility for policy decisions.
●Provide ongoing direction regarding scope and objectives.
●Timely review of Smartsheet work product and/or deliverables.
●Communicate project expectations and timelines to the system/process owners.
●Facilitate contact identification, secure meetings and cooperation with key contacts as needed.
●Upon request, provide prompt management decisions, approvals, acceptance and such other information
and assistance desired or required by Smartsheet to perform its obligations.
5.SCHEDULE
This SOW shall commence on the Effective Date and, unless sooner terminated under the provisions of the
Agreement, shall remain in full force and effect until (i) project completion or (ii) one hundred eighty (180) calendar
days from the Effective Date. For the avoidance of doubt, Customer is responsible for requesting up to the allotted
amount of training sessions under this SOW. Upon a termination, all training sessions will be deemed to have been
provided to Customer and Customer shall not be entitled to any refund for unused sessions. Upon termination,
Customer will be responsible for payment towards i) milestones completed to date and ii) prorated milestone
amounts for the Services provided through the termination date.
Representative PPM core timeline:
Project Activity / Milestone Estimated Duration
SOW execution TBD based on signature
Kickoff TBD based on resource availability (Customer and Smartsheet)
Align phase 5 business days
Design phase 5 business days
Develop phase 20 business days
Enablement activities 15 business days
Deploy phase 10 business days
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$49,140 plus
Travel & Expenses
Total Estimated Fees
6.FEES AND INVOICES
The fees for this SOW shall be as set forth in the table below. Customer may request Smartsheet to perform hours of
in-scope Professional Services in excess of the Total Estimated Fees below (“Additional Services”) and Smartsheet,
in its sole discretion may elect whether to perform such Additional Services. Additional Services increasing the Total
Estimated Fees by up to ten percent (10%) shall not require a written addendum to this SOW. Any increase in fees
beyond ten percent (10%) shall require a written addendum to this SOW. Smartsheet shall invoice Customer upon the
Effective Date for Fixed Fees, and Smartsheet reserves the right to delay Project Kickoff until payment has been made.
The Monthly Hours shall expire at the end of each calendar period, and any unused hours will not roll over to the next
period. For Time & Materials Fees, Smartsheet shall invoice Customer monthly for actual hours worked and Customer
shall pay all invoices in accordance with the Agreement. Please see Appendix A for Smartsheet Resource Types and
descriptions.
Resource
Type
Units Hourly Rate Total (USD)
Professional
Services
170 hours $273 $46,410
Travel &
Expenses
Based on actual costs incurred except meals will be charged to
Customer pursuant to the applicable meals and incidentals rates for
the Services Location as set by the General Services Administration
(GSA).
To be Determined
Total Time & Materials Budgeted Fees $46,410 plus Travel &
Expenses
Scope of Work
Phase
Resource
Type
Monthly Hours Number of Months Hourly Rate Total (USD)
Maintain Professional
Services
10 1 $273 $2,730
Total Fixed Fees $2,730
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I I
Smartsheet Inc.
Statement of Work for Smartsheet PPM Core Package
DocuSign Envelope ID: 85632A18-3F1C-4825-95F0-83DAAC2217DD
EPTED D GREED:
Smartsheet Inc.
5/9/2023
(sign here/date)
By:
RLSBAD, a municipal corporation of
fCalifomia
Mike Artnz CRO & EVP WW Field Operations
(print name/title)
By:
(sign here/date)
( print name/title)
APPROVED AS TO FORM:
CINDIE K. McMAHON, City Attorney
BY: _Ci._LU. __ �--�---
Deputy City Attorney
Smartsheet Inc.
Statement of Work for Smartsheet PPM Core Package
ATTEST:
ti,( SHERRY FREISINGER
City Clerk
Smartsheet Inc.
Statement of Work for Smartsheet PPM Core Package
Appendix A - Core PPM Disciplines
PPM Discipline Definition
Demand intake Demand intake enables an organization to consume and
organize a large quantity of work (work requests, project
requests) in a structured fashion so that decision-makers are
equipped to understand the request and prioritize the request
against the rest of the portfolio.
Work execution Project and work delivery is the act of managing scope,
schedule, budget, and other key project management assets
and project deliverables through the completion of a defined
body of work.
Work & portfolio Reporting Work and portfolio reporting encapsulates the ability to
understand the total portfolio of work at the highest altitude
quantitatively, semi-quantitatively, or qualitatively through
relevant metrics and measures; many organizations further
seek to understand cross-sections of the portfolio (e.g. line of
business, region) by using the same or different metrics and
measures. Mature project and portfolio reporting ensure that
organizations continually make good decisions about the
allocation of organizational resources to work that is aligned
with organizational strategy.
Appendix B - Additional PPM Disciplines
PPM Discipline Definition
Work Sourcing & Planning Project sourcing and planning is the translation of
organizational strategy to the delivery of work and requires a
thorough understanding of existing resource commitments
and available organizational capacity. (Budget / Resources)
Portfolio Prioritization Portfolio prioritization is the act of evaluating all in-flight and
requested work against an organization's strategic priorities
and in light of known resource constraints. Portfolio
prioritization ensures that decisions about sequencing and
resourcing work are made based on standardized evaluation
criteria that are aligned to organizational strategy.
Strategic Planning Strategic planning establishes the structure and priorities that
will enable leaders to identify, organize, resource, and
evaluate a portfolio of work in pursuit of a given set of
outcomes. Strategic planning can leverage various
methodologies, like OKR or V2MOM, but generally involves
activities like documenting organizational vision, mission,
and objectives, aligning the taxonomy and evaluation criteria
for work, and ensuring that the organization is prepared to
resource prioritized work.
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Smartsheet Inc.
Statement of Work for Smartsheet PPM Core Package
Appendix C: Smartsheet Project Delivery Team Roles & Responsibilities
Role Responsibilities
PPM Consulting Manager ●Engagement oversight
●Resourcing and staffing of assigned Consultants to the
engagement
●Participation in the engagement kick-off, phase-gate reviews, and
PPM roadmap readout
Engagement Lead ●Responsible for the successful planning, delivery, monitoring,
and closure of project work using the Smartsheet PPM delivery
methodology
●Works directly with customer project sponsors and stakeholders
on a successful project outcome aligned with business goals
●Primary resource facilitating project exercises defined in Section
3
Lead Consultant ●Co-facilitate project exercises defined in Section 3
●Development and delivery of the Smartsheet minimum viable
product (MVP)
PPM Specialist / Quality and
Oversight Lead
●PPM SME
●Participation in the engagement kick-off, phase-gate reviews, and
PPM roadmap readout
●Conduct quality reviews of all engagement deliverables
Appendix D - PPM Core Architecture Diagram
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Core Solution
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Smartsheet Inc.
Statement of Work for Smartsheet PPM Core Package