Common use of By Smartsheet Clause in Contracts

By Smartsheet. Smartsheet will defend Customer and its respective officers, directors, and employees (“Customer Indemnified Parties”) from and against any claims, demands, proceedings, investigations, or suits, brought by a third party alleging that Customer’s use of the Services or Customizations in accordance with this Agreement infringes any third party intellectual property rights (each, a “Claim Against Customer”). Smartsheet will indemnify Customer Indemnified Parties for any finally awarded damages or settlement amount approved by Smartsheet in writing to the extent arising from a Claim Against Customer, and any reasonable attorneys’ fees of Customer associated with initially responding to a Claim Against Customer. Notwithstanding the foregoing, Smartsheet will have no obligation under this Section 11.1 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.

By Smartsheet. Smartsheet will defend Customer and its respective officers, directors, and employees (“Customer Indemnified Parties”) from and against any claims, demands, proceedings, investigations, or suits, suits brought by a third party alleging that Customer’s use of the Services or Customizations in accordance with this Agreement infringes any third party intellectual property rights (each, a “Claim Against Customer”). Smartsheet will indemnify Customer Indemnified Parties for any finally awarded damages or settlement amount approved by Smartsheet in writing to the extent arising from a Claim Against Customer, and any reasonable attorneys’ fees of Customer associated with initially responding to a Claim Against Customer. Notwithstanding the foregoing, Smartsheet will have no obligation under this Section 11.1 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.

By Smartsheet. Smartsheet will defend Customer Customer, and its their respective officers, directors, employees, and employees agents (“Customer Indemnified Parties”) from and against any claims, demands, proceedings, investigations, or suits, suits brought by a third party party: (i) alleging that Customer’s use of the Services Subscription Service or Customizations Work Product in accordance with this Agreement infringes any third party intellectual property rights (eacheach an “Infringement Claim”); and (ii) any personal injury, a death or property damage caused by any alleged act, omission, error, fault, mistake or negligence of Smartsheet, its employees, agents, or representatives in connection with Professional Services physically provided on Customer premises (each and “Claim Against CustomerIndemnifiable claim”). Smartsheet will indemnify Customer Indemnified Parties for any damages, reasonable attorneys’ fees, and costs resulting from an Indemnifiable Claim and finally awarded damages against Customer or agreed to be paid by Customer in a written 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 Customerwriting. Notwithstanding the foregoing, Smartsheet will have no obligation under this Section 11.1 12.1 to the extent any Claim Against Customer alleged indemnifiable claim arises from: (a) Customer’s use of the Services Subscription Service or Customizations Work Product in combination with technology or services not provided by Smartsheet, if the Services or Customizations or use thereof infringement would not infringe without have occurred but for 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 (provided that Smartsheet subsequently refunds amounts paid for the allegedly infringing material after Customer’s discontinuance of use); (e) the negligence or willful misconduct of Customer, the State of Oregon, or their agents, officials, employees or Customer Users; (f) breach of this Agreement by Customer, the State of Oregon, or their agents, officials, employees or Customer Users. If Customer is enjoined or otherwise prohibited from using any of the Services Subscription Service or Customizations Work Product or a portion thereof based on a Claim Against Customeran Infringement Claim, then Smartsheet will, at Smartsheet’s its sole expense and option, either: (xi) obtain for Customer the right to use the allegedly infringing portions of the Subscription Service or CustomizationsWork Product; (yii) modify the allegedly infringing portion of the Subscription Service or Customizations Work Product so as to render it non-infringing without substantially diminishing or impairing its functionality; or (ziii) replace the allegedly infringing portions of the Subscription Service or Customizations Work Product with non-infringing items of substantially similar functionality. If Smartsheet determines that the foregoing remedies are not commercially reasonable or possiblereasonable, then Smartsheet will may terminate the applicable Order or SOW and issue a prorated refund of fees prepaid fees covering by Customer for the terminated portion of the applicable ServiceInitial Term or then-current Renewal Term. This Section 12.1 sets forth Smartsheet’s sole liability and Customer’s sole and exclusive remedy for any actual or alleged infringement by Smartsheet of any third party intellectual property rights. . Smartsheet will have control of the defense and settlement of any claim that is subject to Section 12.1; however, neither Smartsheet nor any attorney engaged by Smartsheet will defend the claim in the name of the State of Oregon or any agency of the State of Oregon, nor purport to act as legal representative of the State of Oregon or any of its agencies, without the approval of the Attorney General, nor will Smartsheet settle any claim on behalf of the State of Oregon without the approval of the Attorney General. The State of Oregon may, at its election and expense, assume its own defense and settlement in the event that the State of Oregon determines that Smartsheet is prohibited from defending the State of Oregon, is not adequately defending the State of Oregon’s interests, or that an important governmental principle is at issue and the State of Oregon desires to assume its own defense.

By Smartsheet. If Customer has paid fees under this Agreement for the Services, Smartsheet will defend Customer Customer, Customer’s corporate affiliates, and its their respective officers, directors, employees, and employees agents (“Customer Indemnified Parties”) from and against any claims, demands, proceedings, investigations, or suits, suits brought by a third party alleging that Customer’s use of the Services Subscription Service or Customizations Work Product in accordance with this Agreement infringes any third third-party intellectual property rights (each, a each an “Claim Against CustomerInfringement Claim”). Smartsheet will indemnify Customer Indemnified Parties for any damages, reasonable attorneys’ fees, and costs resulting from an Infringement Claim and finally awarded damages against Customer or agreed to be paid by Customer in a written 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 Customerwriting. Notwithstanding the foregoing, Smartsheet will have no obligation under this Section 11.1 12.1 to the extent any Claim Against Customer alleged infringement arises from: (a) Customer’s use of the Services Subscription Service or Customizations Work Product in combination with technology or services not provided by Smartsheet, if the Services or Customizations or use thereof infringement would not infringe without have occurred but for 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 Subscription Service or Customizations Work Product or a portion thereof based on a Claim Against Customeran Infringement Claim, then Smartsheet will, at Smartsheet’s sole expense and option, either: (xi) obtain for Customer the right to use the allegedly infringing portions of the Subscription Service or CustomizationsWork Product; (yii) modify the allegedly infringing portion of the Subscription Service or Customizations Work Product so as to render it non-infringing without substantially diminishing or impairing its functionality; or (ziii) replace the allegedly infringing portions of the Subscription Service or Customizations Work Product with non-non- infringing items of substantially similar functionality. If Smartsheet determines that the foregoing remedies are not commercially reasonable or possiblereasonable, then Smartsheet will may terminate the applicable Order or SOW and issue a prorated refund of fees prepaid fees covering by Customer for the terminated portion of the applicable ServiceInitial Term or then-current Renewal Term. This Section 12.1 sets forth Smartsheet’s sole liability and Customer’s sole and exclusive remedy for any actual or alleged infringement by Smartsheet of any third-party intellectual property rights.

By Smartsheet. Smartsheet will defend Customer and its respective officersofficers, directors, and employees (“Customer Indemnified 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 Indemnified Parties for any finally finally awarded damages or settlement amount approved by Smartsheet in writing to the extent arising from a Claim Against Customer, and any reasonable attorneys’ fees of Customer associated with initially responding to a Claim Against Customer. Notwithstanding the foregoing, Smartsheet will have no obligation under this Section 11.1 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, specificationsspecifications, or instructions provided in writing by Customer if such infringement would not have occurred but for such designs, specificationsspecifications, 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.