CONTRACT 6030 Vender AgreementDocuSign Envelope ID: CA1 930913-4F1 C-4706-BAl A-77AC1 MAW
Agreement No. 6030
ORDER FORM
Asana, Inc.
1550 Bryant Street, Suite 200
San Francisco, CA 94103
ar@asana.com
Customer Information
Bill To:
City of El Segundo
350 Main Street, El Segundo, California 90245
Subscription Information
Offer Valid Through: February 19,
2021
Customer Point of Contact
Margaret Liu
mliu@elsegundo.org
Monthly
Subscription
Start Date
Term Length
End Users
Cost Per
Total Fees
Seat
Asana
Enterprise
February 22, 2021
1 year
10
$59.99
$7,198.80
..... . . . ....... .. ........................
Payment Terms: Net 30
Billing Frequency: Full Term in Advance
Renewal: Unless either party gives the other notice of non -renewal at least thirty (30) days prior to the End
Date, this Order Form shall automatically renew for additional periods equal in length to the Subscription
Term at Asana's then current rates.
Purchase Order Information (Customer to complete)
If a purchase order is required for payment under this Order Form, please provide the purchase order number
below or send the purchase order to ar@asana.com (referencing this Order Form) within one week of this
Order Form's execution.
PO Number:
This Order Form is entered into by Asana, Inc. ("Asana") and the customer identified above ("Customer")
and is governed by the Asana Master Subscription Agreement available at
lit l�L/�isaiia.cc)ii,i/iiiaster-SLibs�cri,t.)tioti-aL,.reeiiieTi:1-032020 unless a separate master subscription agreement
has been executed by the parties, in which case that agreement shall govern (in either case, the
"Agreement"), unless Asana rejects this Order Form due to execution by the Customer after the "Offer
Valid Through" date listed above. Subject to any limitations to Customer's Subscription, Customer may
add End Users during the Subscription Term at the same pricing contained herein, prorated for the
remainder of the Subscription Term at the time the new End Users are added, either by providing Asana
with written confirmation (email acceptable) or entering into an additional Order Form. Capitalized terms
in this Order Form shall have the same meaning as in the Agreement unless otherwise defined herein. This
Order Form shall be effective on the date fully executed by the parties.
[Signatures on the following page]
Version 03-2020 Confidential
DocuSign Envelope ID: CA1930984F1C4706-BA1A-77AC162BA3A7
Agreement No. 6030
Accepted and agreed to by the authorized representatives of each party:
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Name: Jeff Baker
Title: Revenue Accounting Lead
Date: Feb 11, 2021
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Name: charles Mallory
Title: Director of Information Technology services
Date: Feb 11, 2021
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CITY ATTORNEY
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of El Segundo
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Version 03-2020 Confidential 2
2/24/2021
Asana Master Subscription Agreement • Asana Agreement No. 6030
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EFFECTIVE DATE: MARCH 20, 2020
This Master Subscription Agreement (the `Agreement") is entered into by
and between Asana, Inc., with a principal place of business at 1550 Bryant
Street, 2nd Floor, San Francisco, CA 94103 (`Asana") and the
counterparty identified as the customer in the applicable Order Form
("Customer"). By signing the Order Form, each party agrees to the terms
of this Agreement. This Agreement shall be effective on the date the
Order Form has been fully executed by the parties (the "Effective Date").
1. Definitions
1.1 "Affiliate" means any entity that directly or indirectly controls, is
controlled by, or is under common control with the subject entity.
"Control," for purposes of this definition, means either: (a) ownership or
control of more than 50% of the voting interests of the subject entity; or
(b) the power to direct or cause the direction of the management and
policies of an entity, whether through ownership, by contract, or
otherwise.
1.2 "Customer Data" means information submitted by an End User
through the Service, including all associated messages, attachments, files,
tasks, project names, team names, channels, conversations, and other
similar content.
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1.3 "Documentation" means Asana's then -current online user guides, as
updated from time to time, and as may be made accessible from within
the "Help" feature of the Service.
1.4 "End User" means an individual who is authorized by Customer to use
the Service under Customer's account. End Users may include, without
limitation, Customer's or its Affiliates' employees, consultants, contractors,
and agents.
1.5 "Intellectual Property Rights" means unpatented inventions, patent
applications, patents, design rights, copyrights, trademarks, service
marks, trade names, domain name rights, mask work rights, know-how
and other trade secret rights, and all other intellectual property rights,
derivatives thereof, and forms of protection of a similar nature anywhere in
the world.
1.6 "Improvements" means new features, functionality, enhancements,
upgrades, error corrections, and bug fixes to the Service made generally
available by Asana at no additional charge.
1.7 "Order Form" means an ordering document or an online order entered
into between Customer and Asana (or Affiliates of either party) specifying
the Service or Professional Services (if any) to be provided under this
Agreement.
1.8 "Professional Services" means the customer success services
provided by Asana, as specified in the applicable Order Form.
1.9 "Service" means Asana's collaboration work management software as
a service platform, including any Improvements, as described in the
applicable Order Form.
1.10 "Subscription" means the access to the Service purchased by
Customer on a per End User basis.
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1.11 "Subscription Term" means the period identified in the applicable
Order Form during which Customer's End Users are permitted to use or
access the Service pursuant to the terms set forth in this Agreement.
2. The Service
2.1 Provision of the Service and Availability. Asana shall make the Service
purchased under an Order Form available to Customer and its End Users
during the applicable Subscription Term pursuant to this Agreement,
including but not limited to the performance standards set forth in the
Service Level Addendum available at https://asana.com/service-levels.
The Service includes the features and functionality applicable to the
version of the Service ordered by Customer. Subject to Section 3.2.1(b),
Asana may update the content, functionality, and user interface of the
Service from time to time in its sole discretion.
2.2 Access Rights. Asana grants to Customer a non-exclusive, non-
sublicenseable, non -transferable (except as specifically permitted in this
Agreement) right to access and use the Service during the applicable
Subscription Term pursuant to this Agreement, solely for Customer's
internal business purposes, and subject to the applicable Order Form.
2.3 Affiliates. An Affiliate may purchase Subscriptions or Professional
Services under this Agreement by entering into an Order Form that
incorporates by reference the terms of this Agreement, and in each such
case, all references in this Agreement to the Customer shall be deemed to
refer to the applicable Affiliate for purposes of that Order Form.
2.4 Usage Restrictions. Customer shall not (a) make the Service available
to, or use any Service for the benefit of, anyone other than Customer and
its Affiliates; (b) rent, sublicense, re -sell, assign, distribute, time share or
similarly exploit the Service; (c) reverse engineer, copy, modify, adapt,
hack the Service, or otherwise attempt to gain unauthorized access to the
Service or its related systems or networks; (d) access the Service, the
Documentation, or Asana's Confidential Information to build a
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competitive product or service; (e) alter or remove, or permit any third
party to alter or remove, any proprietary trademark or copyright markings
incorporated in, marked on, or affixed to the Service; (f) allow End User
Subscriptions to be shared or used by more than one individual End User
(except that End User Subscriptions may be reassigned to new End Users
replacing individuals who no longer use the Service for any purpose); or
(g) access or use the Service: (i) to send or store infringing, obscene,
threatening, or otherwise unlawful material, including material violative of
third -party privacy rights; (ii) in violation of applicable laws; (iii) to send or
store material knowingly or intentionally containing software viruses,
worms, Trojan horses, or other harmful computer code, files, or scripts; or
(iv) in a manner that interferes with or disrupts the integrity or
performance of the Service (or the data contained therein). Asana may
request that Customer suspend the account of any End User who: (a)
violates this Agreement or Asana's User Terms of Service; or (b) is using
the Service in a manner that Asana reasonably believes may cause a
security risk, a disruption to others' use of the Service, or liability for Asana.
If Customer fails to promptly suspend or terminate such End User's
account, Asana reserves the right to do so.
2.5 Security; Protection of Customer Data. Asana shall implement and
maintain reasonable administrative, organizational, and technical
safeguards designed for the protection, confidentiality, and integrity of
Customer Data at least as rigorous as the measures described in the Data
Security Standards available at https://asana.com/security-standards. If
Customer Data includes Personal Data, as defined in Asana's Data
Processing Addendum available at https://asana.com/terms#data-
processing ("DPA"), the terms of the DPA shall be incorporated into this
Agreement upon the execution of the DPA by both parties.
2.6 Administration of Customer's Account. Customer acknowledges that
it retains administrative control over to whom it grants access to Customer
Data hosted in the Service. Customer may specify one or more End Users
as administrators (each an "Administrator") to manage its account, and
Asana is entitled to rely on communications from such Administrators and
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other Customer employees when servicing Customer's account.
Customer is responsible for use of the Service by its End Users and for
their compliance with this Agreement. Customer is solely responsible for
the accuracy, quality, and legality of Customer Data. Customer shall
promptly notify Asana if it becomes aware of any unauthorized use or
access to Customer's account or the Service.
2.7 Customer's Use of Third Party Services. Customer may install or
enable third party services for use with the Service, such as online
applications, ofHine software products, or services that utilize the Asana
API or otherwise connect with the Service ("Third Party Services"). Any
acquisition and use by Customer or its End Users of such Third Party
Services is solely the responsibility of Customer and the applicable third
party provider. Customer acknowledges that providers of such Third Party
Services may have access to Customer Data in connection with the
interoperation and support of such Third Party Services with the Service.
To the extent Customer authorizes the access or transmission of Customer
Data through a Third Party Service, such Third Party Service terms will
govern, and Asana shall not be responsible for, any use, disclosure,
modification or deletion of such Customer Data or for any act or omission
on the part of such third party provider or its service.
3. Representations and Warranties
3.1 Mutual Warranties. Each party represents and warrants that: (a) this
Agreement is legally binding upon it and enforceable in accordance with
its terms; and (b) it shall comply with all laws, rules and regulations
applicable to the exercise of its rights and performance of its obligations
under this Agreement.
3.2 By Asana.
3.2.1 Service Warranties. Asana warrants during the applicable
Subscription Term that: (a) the Service shall perform materially in
accordance with the applicable Documentation; and (b) Asana shall not
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materially decrease the functionality of the Service. For any breach of the
foregoing warranties, as Asana's sole liability and Customer's exclusive
remedy, Asana shall correct any material reproducible impairments to the
features and functionality of the Service so that it materially conforms to
the applicable warranty, and if Asana is unable to provide the Service as
warranted within a commercially reasonable time following receipt of
written notice of breach, Customer shall be entitled to terminate the
applicable Order Form and receive a prorated refund of any prepaid,
unused fees applicable to the remaining portion of the Subscription Term
measured from the effective date of termination.
3.2.2 Professional Services Warranty. Asana warrants that the
Professional Services shall be performed in a professional and
workmanlike manner using resources with the requisite skills, experience,
and knowledge. For any breach of the foregoing warranty, as Asana's sole
liability and Customer's exclusive remedy, Asana shall re -perform the
applicable Professional Services that fail to meet this warranty, or, at its
option, refund to Customer the fees paid for the non -conforming
Professional Services.
3.2.3 Malicious Code. Asana warrants that, to the best of its knowledge,
the Service is free from, and Asana shall not knowingly or intentionally
introduce, software viruses, worms, logic bombs, Trojan horses or other
code, files, or scripts intended to do harm ("Malicious Code").
3.3 By Customer. Customer represents and warrants that it is entitled to
transfer the Customer Data to Asana so that Asana and its service
providers may lawfully use, process, and transfer the Customer Data in
accordance with this Agreement on Customer's behalf.
3.4 Disclaimer. EXCEPT AS EXPRESSLY PROVIDED FOR IN THIS
AGREEMENT, THE SERVICE, PROFESSIONAL SERVICES, AND ALL
RELATED COMPONENTS AND INFORMATION ARE PROVIDED "AS IS"
AND ASANAAND ITS AFFILIATES EXPRESSLY DISCLAIM ANYAND ALL
WARRANTIES, EXPRESS OR IMPLIED, INCLUDING BUT NOT LIMITED
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TO THE IMPLIED WARRANTIES OF MERCHANTABILITY, TITLE, FITNESS
FOR A PARTICULAR PURPOSE, AND NON -INFRINGEMENT.
CUSTOMER ACKNOWLEDGES THATASANA DOES NOT WARRANT
THAT THE SERVICE WILL BE UNINTERRUPTED, TIMELY, SECURE, OR
ERROR -FREE. ASANA IS NOT RESPONSIBLE FOR AND DISCLAIMS ALL
LIABILITY RELATED TO DELAYS, DELIVERY FAILURES, INTERCEPTION,
ALTERATION, OR OTHER DAMAGE RESULTING FROM MATTERS
OUTSIDE OF ITS CONTROL, INCLUDING PROBLEMS INHERENT IN THE
USE OF THE INTERNET, MOBILE AND PERSONAL COMPUTING
DEVICES, TRANSMISSION OF ELECTRONIC COMMUNICATIONS OVER
THE INTERNET OR OTHER NETWORKS, AND THIRD PARTY HOSTING
SERVICE PROVIDERS.
4. Fees and Payment
4.1 Payment of Fees. Customer's Subscription fees are set forth in the
applicable Order Form and are payable annually in advance within thirty
(30) days of the invoice date. Customer is responsible for providing
complete and accurate billing information to Asana. Customer shall pay all
undisputed fees when due and, if such fees are being paid via credit card
or other electronic means, Customer authorizes Asana to charge such fees
using Customer's selected payment method. If Customer disputes any
part of an invoice in good faith, Customer shall provide Asana with notice
and detail of the dispute prior to the invoice due date, and pay the
undisputed portion by the invoice due date. Except as otherwise specified
in the applicable Order Form: (a) fees are quoted and payable in United
States dollars; and (b) payment obligations are non -cancelable and fees
paid are non-refundable unless otherwise provided herein. The number of
End Users purchased under a Subscription cannot be decreased during
the applicable Subscription Term. If Customer requires the use of a
purchase order or purchase order number, Customer shall provide the
purchase order number at the time of purchase. Where Customer
designates use of a third -party payment processor network (such as a
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payment agent, for example), Customer shall be responsible for payment
of all fees and charges associated with use of such network.
4.2 End User Subscriptions. Unless otherwise specified in an Order Form,
Subscription fees are based on annual periods (or pro rata portions
thereof, calculated on a daily basis) that begin on the Subscription start
date and each annual anniversary thereof. Subscriptions to the Service are
sold on a tiered basis based on the number of End Users. Customer shall
purchase a Subscription to the Service, which shall be reflected in the
applicable Order Form. Customer may add End Users at any time on
written notice to Asana (email notice acceptable). Asana reserves the right
to calculate the total number of End Users on a periodic basis, and, if such
number of End Users exceeds Customer's current plan size, then Asana
reserves the right to invoice Customer for the tier that corresponds to the
number of End Users on a pro rata basis for the remaining months in
Customer's then -current annual Subscription Term, so that all End User
Subscription Terms coincide and are co -terminus.
4.3 Taxes. Any fees charged to Customer are exclusive of taxes. Except for
those taxes based on Asana's net income, Customer shall be responsible
for all applicable taxes in connection with this Agreement including, but
not limited to, sales, use, excise, value-added, goods and services,
consumption, and other similar taxes or duties. Should any payment for
the Service be subject to withholding tax by any government, Customer
shall reimburse Asana for such withholding tax. Customer shall be
responsible for any taxes, penalties, or interest that might apply based on
Asana's failure to charge appropriate tax due to incomplete or incorrect
information provided by Customer. If Customer is exempt from certain
taxes, Customer shall provide proof of such exemption to Asana without
undue delay upon execution of the applicable Order Form.
4.4 Suspension for Failure to Pay. Asana reserves the right to suspend
Customer's account, in addition to all of its other available rights and
remedies, in the event that Customer's account becomes overdue and is
not brought current within ten (10) business days following written notice
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(email acceptable) from Asana that such account is past due. Unpaid
amounts may be subject to interest at the lesser of one and one-half
percent (1.5%) per month or the maximum permitted by law plus
collection costs. Suspension shall not relieve Customer's obligation to pay
amounts due.
4.5 Future Features and Functionality. Customer agrees that any
purchases under this Agreement are not contingent on the delivery of any
future feature or functionality or dependent on any oral or written public
or private comments made by Asana regarding future features or
functionality. Asana may release Improvements and other features and
functionality in its discretion. Some features and functionality may be
available only with certain versions of the Service.
5. Term and Termination
5.1 Term. This Agreement commences on the Effective Date and shall
remain in effect until all Subscriptions to the Service granted in
accordance with this Agreement have expired or been terminated, or this
Agreement is otherwise terminated in accordance with its terms.
5.2 Termination for Cause. Either party may terminate this Agreement and
any Order Form under this Agreement if the other party: (a) is in material
breach of this Agreement and fails to cure such breach within thirty (30)
days following receipt of written notice from the non -breaching party,
except that termination will take effect on notice in the event of a breach
of Section 2.3 ("Usage Restrictions"); or (b) ceases its business operations
or becomes subject to insolvency proceedings and the proceedings are
not dismissed within sixty (60) days.
5.3 Effect of Termination. Upon expiration or termination of this
Agreement for any reason, all Subscriptions and any other rights granted
to Customer under this Agreement shall immediately terminate, and
Customer shall immediately cease all use of the Service. Upon any
termination by Customer pursuant to Section 5.2, Asana shall refund to
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Customer a prorated amount of prepaid, unused fees applicable to the
remaining portion of the Subscription Term measured from the effective
date of termination. Upon any termination by Asana pursuant to Section
5.2, Customer shall pay any unpaid fees covering the remainder of the
Subscription Term. In no event will any termination relieve Customer of
the obligation to pay any fees accrued or payable to Asana for the Service
or Professional Services in the period prior to the effective date of
termination. The following sections shall survive expiration or termination
of this Agreement: Sections 1 ("Definitions"), 2.4 ("Usage Restrictions"), 3
("Representations and Warranties"), 4.1 ("Payment of Fees"), 4.3 ("Taxes"),
5.3 ("Effect of Termination"), 5.4 ("Treatment of Customer Data Following
Expiration or Termination"), 6 ("Confidentiality"), 7 ("Intellectual Property
Rights"), 8 ("Indemnification"), 9 ("Liability"), 10 ("Export Compliance"),
and 11 ("Miscellaneous").
5.4 Treatment of Customer Data Following Expiration or Termination.
Customer agrees that following expiration or termination of this
Agreement, Asana may immediately deactivate Customer's account(s)
associated with the Agreement. Upon written request by Customer
received by Asana within thirty (30) days after the effective date of
expiration or termination, Asana shall make Customer Data available to
Customer for export; however, Customer's ability to export such data may
be limited, unless otherwise required by law, by the applicable version of
the Service selected by Customer. After such thirty (30) day period,
Asana shall have no obligation to retain Customer Data and shall
thereafter, unless legally prohibited, be entitled to delete all Customer
Data in its systems or otherwise in its possession or under its control.
Subject to any limitations in Customer's Subscription plan, upon
Customer's request at datadeletions@asana.com, Asana shall, within one -
hundred and eighty (180) days of receipt of such request, securely
destroy all Customer Data from its systems; provided that all back-ups
shall be deleted within thirty (30) days after such one -hundred and eighty
(180) day period.
6. Confidentiality
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6.1 Definition of Confidential Information. During the course of
performance under this Agreement, each party may make available to the
other party information that is not generally known to the public and at
the time of disclosure is either identified as, or should reasonably be
understood by the receiving party to be, proprietary or confidential (the
"Confidential Information"). Confidential Information specifically includes
this Agreement, the Service, Order Form(s), Customer Data, Results (as
defined below), business plans, product plans and roadmaps, strategies,
forecasts, projects and analyses, financial information and fee structures,
business processes, methods and models, and technical documentation.
Confidential Information does not include information that: (a) is or
becomes publicly available without breach of this Agreement by the
receiving party; (b) was known to the receiving party prior to its disclosure
by the disclosing party; (c) is or was independently developed by the
receiving party without the use of any Confidential Information of the
disclosing party; or (d) is or was lawfully received by the receiving party
from a third party under no obligation of confidentiality.
6.2 Protection of Confidential Information. Except as otherwise expressly
permitted under this Agreement, with the express prior written consent of
the disclosing party, or as required by law, the receiving party will not
disclose, transmit, or otherwise disseminate to a third party any
Confidential Information of the disclosing party; except the parties may
share this Agreement with any Affiliates of either party for the purpose of
entering into additional business transactions. The receiving party will use
the same care and discretion with respect to the Confidential Information
received from the disclosing party as it uses with its own similar
information, but in no event less than a reasonable degree of care. The
receiving party may disclose the disclosing party's Confidential
Information to its employees, Affiliates, consultants, subcontractors,
agents, or advisors ("Representatives") who have a strict need to know
such Confidential Information for the purpose of performing under this
Agreement and only to those who are obligated to maintain the
confidentiality of such Confidential Information upon terms at least as
protective as those contained in this Agreement. Either party may disclose
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the terms of this Agreement to potential parties to a bona fide fundraising,
acquisition or similar transaction solely for purposes of the proposed
transaction, provided that any such potential party is subject to written
non -disclosure obligations and limitations on use no less protective than
those set forth herein. If the parties entered into a non -disclosure
agreement prior to executing this Agreement, the terms of this Section 6
shall control in the event of any conflict or inconsistency.
6.3 Equitable Relief. The receiving party acknowledges that the remedy
at law for breach of this Section 6 may be inadequate and that, in addition
to any other remedy the disclosing party may have, it shall be entitled to
seek equitable relief, including, without limitation, an injunction or
injunctions (without the requirement of posting a bond, other security or
any similar requirement or proving any actual damages), to prevent
breaches or threatened breaches of this Section 6 by the receiving party
or any of its Representatives and to enforce the terms and provisions of
this Section 6 in addition to any other remedy to which the disclosing
party is entitled at law or in equity.
6.4 Compelled Disclosure. The receiving party may access and disclose
Confidential Information of the disclosing party if legally required to do so
in connection with any legal or regulatory proceeding; provided, however,
that in such event the receiving party will, if lawfully permitted to do so,
notify the disclosing party within a reasonable time prior to such access or
disclosure so as to allow the disclosing party an opportunity to seek
appropriate protective measures. If the receiving party is compelled by
law to access or disclose the disclosing party's Confidential Information as
part of a civil proceeding to which the disclosing party is a party, the
disclosing party will reimburse the receiving party for its reasonable cost
of compiling and providing secure access to such Confidential
Information. Receiving party will furnish only that portion of the
Confidential Information that is legally required to be disclosed, and any
Confidential Information so disclosed shall maintain its confidentiality
protection for all purposes other than such legally compelled disclosure.
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6.5 Sensitive/Personal Information. Customer agrees that it shall not use
the Service to send or store personal information subject to special
regulatory or contractual handling requirements (e.g., Payment Card
Industry Data Security Standards, the Gramm -Leach -Bliley Act, the Health
Insurance Portability and Accountability Act, and any similar data
protection laws) including without limitation: credit card information,
credit card numbers and magnetic stripe information, social security
numbers, driver's license numbers, passport numbers, government issued
identification numbers, health -related information, biometric data,
financial account information, personally identifiable information collected
from children under the age of 13 or from online services directed toward
children, and real time geo-location data which can identify an individual,
or information deemed "sensitive" under applicable law (such as racial or
ethnic origin, political opinions, or religious or philosophical beliefs).
7. Intellectual Property Rights
7.1 By Customer. Customer owns all right, title, and interest in and to
Customer Confidential Information and Customer Data, including all
related Intellectual Property Rights. Customer grants Asana and its
authorized third party service providers a worldwide, non-exclusive
license to host, copy, access, process, transmit, and display Customer
Data: (a) to maintain, provide, and improve the Service and perform under
this Agreement; (b) to prevent or address technical or security issues and
resolve support requests; (c) to investigate in good faith an allegation that
an End User is in violation of this Agreement or the Asana User Terms of
Service; or (d) at Customer's direction or request or as permitted in writing
by Customer.
7.2 By Asana. Asana owns and will continue to own all right, title, and
interest, including all related Intellectual Property Rights, in and to its
Confidential Information, Results, and the Service, including any
enhancements, customizations, or modifications thereto. Where
Customer purchases Professional Services hereunder, Asana grants to
Customer a non-sublicensable, non-exclusive license to use any reports
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and other materials developed by Asana as a result of the Professional
Services ("Results") solely in conjunction with Customer's authorized use
of the Service and in accordance with this Agreement.
7.3 Suggestions. Asana welcomes feedback from its customers about the
Service and Professional Services. If Customer (including any End User)
provides Asana with any feedback or suggestions regarding the Service or
Professional Services ("Feedback"), Asana may use, disclose, reproduce,
sublicense, or otherwise distribute and exploit the Feedback without
restriction or any obligation to Customer or any End User provided that
Asana shall not identify Customer or any End User as the source of such
Feedback.
8. Indemnification
8.1 By Customer. Customer shall defend Asana, its Affiliates, and their
employees, officers, and directors (together, the "Asana Indemnified
Parties") from and against third party claims, actions, and demands arising
from allegations that Customer Data, unauthorized use of the Service by
Customer or its End Users, or Asana's processing of data pursuant to
Customer's instructions infringes a third party Intellectual Property Right
or privacy right (each, a "Claim Against Asana"), and Customer shall
indemnify and hold the Asana Indemnified Parties harmless against any
damages, reasonable attorneys' fees, and costs finally awarded against
Asana Indemnified Parties as a result of, or for any amounts paid by the
Asana Indemnified Parties under a Customer -approved settlement of, a
Claim Against Asana.
8.2 By Asana. Asana shall defend Customer, its Affiliates, and their
employees, officers, and directors (together the "Customer Indemnified
Parties") from and against third party claims, actions, and demands
alleging that Customer's authorized use of the Service infringes or
misappropriates any copyright, trade secret, U.S. patent, or trademark
right of that third party (each, a "Claim Against Customer"), and Asana
shall indemnify and hold the Customer Indemnified Parties harmless
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against any damages, reasonable attorneys' fees, and costs finally
awarded against Customer Indemnified Parties as a result of, or for any
amounts paid by the Customer Indemnified Parties under an Asana-
approved settlement of, a Claim Against Customer; provided, however, in
no event will Asana have any obligations or liability under this Section 8.2
to the extent a Claim Against Customer arises from: (a) Customer or any
End User's use of the Service other than as permitted under this
Agreement; or (b) use of the Service in a modified form or in combination
with products, services, content, or data not furnished to Customer by
Asana.
8.3 Potential Infringement. If the Service becomes, or in Asana's
reasonable judgment is likely to become, the subject of a claim of
infringement, then Asana may in its sole discretion: (a) obtain the right, at
Asana's expense, for Customer to continue using the Service; (b) provide
a non -infringing functionally equivalent replacement; or (c) modify the
Service so that it is no longer infringing. If Asana, in its sole and reasonable
judgment, determines that none of the above options are commercially
reasonable, then Asana may suspend or terminate Customer's use of the
Service, in which case Asana shall provide Customer with a prorated
refund of any prepaid, unused fees applicable to the remaining portion of
the Subscription Term. Sections 8.2 and 8.3 state Asana's sole liability and
the Customer Indemnified Parties' exclusive remedy for infringement
claims.
8.4 Indemnification Process. The party seeking indemnification shall
provide prompt notice to the indemnifying party concerning the
existence of an indemnifiable claim and shall promptly provide the
indemnifying party with all information and assistance reasonably
requested and otherwise cooperate fully with the indemnifying party in
defending the claim. Failure to give prompt notice shall not constitute a
waiver of a party's right to indemnification and shall affect the
indemnifying party's obligations under this Agreement only to the extent
such failure or delay materially prejudices the indemnifying party's ability
to perform its obligations. The indemnifying party shall have full control
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and authority over the defense of any claim; provided, however, that any
settlement requiring the party seeking indemnification to admit liability or
make any financial payment shall require such party's prior written
consent, not to be unreasonably withheld or delayed.
9. Liability
9.1 Limitation of Liability. EXCEPT FOR A PARTY'S INDEMNIFICATION
OBLIGATIONS OR BREACH OF SECTION 6 ("CONFIDENTIALITY"), IN
NO EVENT SHALL EITHER PARTY'S OR ITS AFFILIATES'AGGREGATE
LIABILITY ARISING OUT OF OR RELATED TO THIS AGREEMENT OR
ANY ORDER FORM UNDER THIS AGREEMENT (WHETHER IN
CONTRACT, TORT, NEGLIGENCE OR UNDER ANY OTHER THEORY OF
LIABILITY) EXCEED THE TOTALAMOUNT PAID OR PAYABLE BY
CUSTOMER UNDER THIS AGREEMENT IN THE TWELVE MONTHS
IMMEDIATELY PRECEDING THE FIRST EVENT GIVING RISE TO
LIABILITY. NOTWITHSTANDING ANYTHING HEREIN, THE MAXIMUM
AGGREGATE LIABILITY FOR A PARTY'S BREACH OF SECTION 6 SHALL
BE TWO HUNDRED THOUSAND DOLLARS.
9.2 Exclusion of Consequential and Related Damages. EXCEPT FOR A
PARTY'S BREACH OF SECTION 6 ("CONFIDENTIALITY") (SUBJECTTO
THE LIMITATION OF LIABILITY SET FORTH JN SECTION 9.1), IN NO
EVENT SHALL EITHER PARTY OR ITS AFFILIATES HAVE ANY LIABILITY
TO THE OTHER PARTY FOR ANY LOST PROFITS, REVENUES, OR LOSS
OF USE OR FOR ANY INDIRECT, SPECIAL, INCIDENTAL,
CONSEQUENTIAL, EXEMPLARY, OR PUNITIVE DAMAGES HOWEVER
CAUSED, WHETHER IN CONTRACT, TORT OR UNDER ANY OTHER
THEORY OF LIABILITY AND WHETHER OR NOTA PARTY HAS BEEN
ADVISED OF THE POSSIBILITY OF SUCH DAMAGES, AND EVEN IF A
REMEDY FAILS OF ITS ESSENTIAL PURPOSE. THE FOREGOING
DISCLAIMER SHALL NOT APPLY TO THE EXTENT PROHIBITED BY
APPLICABLE LAW.
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9.3 The provisions of this Section 9 allocate the risks under this
Agreement between the parties, and the parties have relied on these
limitations in determining whether to enter into this Agreement.
10. Export Control and Economic Sanctions Compliance
Customer acknowledges that the Service and other Asana products may
be subject to export control and economic sanctions laws and regulations
of the United States and other jurisdictions. Customer's ability to
download, access, or use the Service and other Asana products are
subject to U.S. Export Administration Regulations (15 CFR Part 730 et.
seq.), economic sanctions regulations administered by the Office of
Foreign Assets Control ("OFAC", 31 CFR Part 500 et seq.), and other
applicable U.S. and global export control and economic sanctions laws
and regulations. Customer represents and warrants that neither it nor any
of its End Users are named on any U.S. government list of sanctioned
parties or any other applicable restricted party list ("Restricted Parties").
Customer shall not permit any End User to access or use any Service in a
U.S.-embargoed country or region or in violation of any U.S. export contro
or economic sanctions law or regulation. Customer and its End Users shall
not use the Service to export, re-export, transfer, or make available,
whether directly or indirectly, any regulated item or information to any
Restricted Parties.
11. Miscellaneous
11.1 Governing Law; Venue. This Agreement and any disputes arising
under it will be governed by the laws of the State of California without
regard to its conflict of laws provisions, and each party consents to the
personal jurisdiction and venue of the state or federal courts located in
San Francisco, California. The application of the United Nations
Convention on Contracts for the International Sale of Goods is expressly
excluded.
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11.2 Informal Dispute Resolution and Arbitration. The parties agree that
most disputes can be resolved without resort to litigation. The parties
agree to use their best efforts to settle any dispute directly through
consultation with each other before initiating a lawsuit or arbitration. If,
after good faith negotiations the parties are unable to resolve the dispute,
the parties agree that any and all disputes arising out of or in any way
relating to this Agreement, including without limitation its existence,
validity or termination, shall be resolved according to California law and
exclusively by binding arbitration before a single arbitrator with the
Judicial Arbitration and Mediation Service (JAMS) and pursuant to the
then existing arbitration rules at JAMS. If the parties cannot agree upon
selection of an arbitrator, then JAMS shall appoint an arbitrator
experienced in the enterprise software industry. The place of the
arbitration will be San Francisco, California. The arbitration will be
conducted in English. Judgment upon any such award may be enforced
in any court of competent jurisdiction. Notwithstanding the foregoing,
either party shall be entitled to seek injunctive relief as set forth in Section
6.3 ("Equitable Relief") above and to stop unauthorized use of the Service
or infringement of Intellectual Property Rights. Disputes, claims, or
controversies concerning either party's Intellectual Property Rights or
claims of piracy or unauthorized use of the Service shall not be subject to
arbitration. The parties further agree that the prevailing party in any action
or proceeding to enforce any right or provisions under this Agreement,
including any arbitration or court proceedings, will be entitled to recover
its reasonable costs and attorneys' fees.
11.3 Notices. Asana may give general notices related to the Service that
apply to all customers by email, in-app notifications, or posting them on
the Asana website or through the Service, and such electronic notices
shall be deemed to satisfy any legal requirement that such notices be
made in writing. Other notices must be sent via email, first class, airmail, or
overnight courier to the addresses of the parties provided herein and are
deemed given when received. Notices to Asana must be sent to Asana
Legal at legal@asana.com with a copy to Asana, Inc., 1550 Bryant Street,
Suite 200, San Francisco, CA 94103, Attn: Legal Dept.
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11.4 Publicity. Asana may include Customer's name and logo in Asana's
online customer list and in print and electronic marketing materials.
11.5 Beta Access. Customer may be invited to participate in review and
testing of pre-release versions of new and beneficial tools and Service
enhancements which may be identified to Customer as "alpha,""beta,"
"preview," "pre- release," "early access," or "evaluation" product or services
(collectively, the "Beta Tests" and such pre-release functionality, the "Beta
Product"). Customer acknowledges and understands that its participation
in Beta Tests is not required and is at Customer's own risk, and that Beta
Products are made available on an "as is" basis without warranties (express
or implied) of any kind, and may be discontinued or modified at any time.
Beta Products are for evaluation and testing purposes, not for production
use, not supported, not subject to availability or security obligations, and
may be subject to additional terms. Asana shall have no liability for any
harm or damage arising out of or in connection with Beta Products. The
Beta Products, including without limitation Customer's assessment of any
Beta Product, are Confidential Information of Asana.
11.6 Relationship of the Parties. The parties are and shall be independent
contractors with respect to all services provided under this Agreement.
This Agreement does not create a partnership, franchise, joint venture,
agency, fiduciary, or employment relationship between the parties. There
are no third -party beneficiaries to this Agreement. Without limiting this
Section, a Customer's End Users are not third -party beneficiaries to
Customer's rights under this Agreement.
11.7 Force Majeure. Except for payment obligations, neither Asana nor
Customer shall be liable for delayed or inadequate performance of its
obligations under this Agreement to the extent caused by a condition that
is beyond a party's reasonable control, including but not limited to natural
disaster, civil disturbance, acts of terrorism or war, labor conditions,
governmental actions, interruption or failure of the Internet or any utility
service, or denial of service attacks (each a "Force Majeure Event"). The
party affected shall be relieved from its obligations (or part thereof) as
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long as the Force Majeure Event lasts and hinders the performance of said
obligations (or part thereof). The party affected shall promptly notify the
other party and make reasonable efforts to mitigate the effects of the
Force Majeure Event.
11.8 Severability; No Waiver. In the event that any provision of this
Agreement is found to be invalid or unenforceable pursuant to anyjudicial
decree or decision, such provision shall be limited or eliminated to the
minimum extent necessary so that this Agreement shall otherwise remain
in full force and effect and remain enforceable between the parties. No
waiver of any term of this Agreement shall be deemed a further or
continuing waiver of such term or any other term, and a party's failure to
assert any right or provision under this Agreement shall not constitute a
waiver of such right or provision.
11.9 Assignment. Neither this Agreement nor any of the rights and
licenses granted under this Agreement may be transferred or assigned by
either party without the other party's express written consent (not to be
unreasonably withheld or delayed); provided, however, that either party
may assign this Agreement and all Order Forms under this Agreement
upon written notice without the other party's consent to an Affiliate or to
its successor in interest in connection with a merger, acquisition,
corporate reorganization, or sale of all or substantially all of its assets not
involving a direct competitor of the non -assigning party. Any other
attempt to transfer or assign this Agreement will be null and void. Subject
to the foregoing, this Agreement shall bind and inure to the benefit of the
parties, their respective successors, and permitted assigns.
11.10 Entire Agreement. This Agreement, including all attachments,
exhibits, addendums, and any Order Form(s) hereunder, constitutes the
entire agreement between the parties concerning the subject matter
hereof and supersedes and replaces any prior or contemporaneous
representations, understandings and agreements, whether written or oral,
with respect to its subject matter. The parties are not relying and have not
relied on any representations or warranties whatsoever regarding the
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subject matter of this agreement, express or implied, except for the
representations and warranties set forth in this Agreement. No
modification, amendment, or waiver of any provision of this Agreement
shall be effective unless in writing and signed by the party against whom
the modification, amendment, or waiver is to be asserted. To the extent of
any conflict or inconsistency between the provisions in the body of this
Agreement and any attachment, exhibit, addendum, or Order Form, the
terms of such attachment, exhibit, addendum or Order Form shall prevail.
Notwithstanding any language to the contrary therein, no terms or
conditions stated in a purchase order, vendor onboarding process and
documentation, or web portal shall be incorporated into or form any part
of this Agreement, and all such terms or conditions shall be null and void.
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