ChangeEngine | Terms of Service

If a valid agreement exists between you (“Customer”) and ChangeEngine related to the subject matter hereof, those terms take precedence over these terms unless otherwise agreed by the Parties in relation to a specific Order Form. These GTC may be updated from time to time as explained herein. Refer to these GTC regularly to ensure compliance. These GTC can be found at www.changeengine.com/terms-of-service. Acceptance. Please read these GTC carefully before using www.changeengine.com (the “Website”) or the products or services offered by ChangeEngine (the “Services”). These GTC take effect when you click an “I Accept” button or checkbox presented with these GTC or when you use any of the Services or Website, whichever occurs first. If you are agreeing to these GTC on behalf of Customer, you represent to ChangeEngine that you have legal authority to bind Customer. Modifications to this Agreement. ChangeEngine may modify these GTC at any time by posting a revised version on this website (www.changeengine.com/terms-of-service) or otherwise providing notice to Customer. By continuing to use the Services after the effective date of any modifications to these GTC, Customer agrees to be bound by the modified terms. United States Federal Government Agency: If you are a United States federal government agency, use of the Services is subject to this amendment. Revised February 1, 2022

DEFINITIONS Capitalized terms used in this document are defined in the Glossary.
USAGE RIGHTS AND RESTRICTIONS
1. Grant of Rights. ChangeEngine grants to Customer a non-exclusive, non-transferable and world-wide right to use the Cloud Service (including its implementation and configuration), Cloud Materials (as applicable) and Documentation solely for Customer’s and its Affiliates’ internal business operations. Permitted uses and restrictions of the Cloud Service also apply to Cloud Materials and Documentation.
2. Authorized Users. Customer may permit Authorized Users to use the Cloud Service. Usage is limited to the Usage Metrics and volumes stated in the Order Form. Access credentials for the Cloud Service may not be used by more than one individual, but may be transferred from one individual to another if the original user is no longer permitted to use the Cloud Service. Customer is responsible for breaches of the Agreement caused by Authorized Users.
3. Acceptable Use Policy. With respect to the Cloud Service, Customer will not:
  - disassemble, decompile, reverse-engineer, copy, translate or make derivative works,
  - transmit any content or data that is unlawful or infringes any intellectual property rights, or
  - circumvent or endanger its operation or security.
4. Verification of Use. Customer will monitor its own use of the Cloud Service and report any use in excess of the Usage Metrics and volume. ChangeEngine may monitor use to verify compliance with Usage Metrics, volume and the Agreement.
5. Suspension of Cloud Service. ChangeEngine may suspend or limit use of the Cloud Service if continued use may result in material harm to the Cloud Service or its users. ChangeEngine will promptly notify Customer of the suspension or limitation. ChangeEngine will limit a suspension or limitation in time and scope as reasonably possible under the circumstances.
6. Third Party Web Services. The Cloud Service may include integrations with web services made available by third parties (other than ChangeEngine’ Affiliates) that are accessed through the Cloud Service and subject to terms and conditions with those third parties. These third party web services are not part of the Cloud Service and the Agreement does not apply to them.
7. Mobile Access to Cloud Service. If applicable, Authorized Users may access certain Cloud Services through mobile applications obtained from third-party websites such as Android or Apple app store. The use of mobile applications may be governed by the terms and conditions presented upon download/access to the mobile application and not by the terms of the Agreement.
CHANGEENGINE RESPONSIBILITIES
1. Provisioning. ChangeEngine provides access to the Cloud Service as described in the Agreement.
2. Support. ChangeEngine provides support for the Cloud Service as referenced in the Order Form.
3. Security. ChangeEngine will implement and maintain appropriate technical and organizational measures to protect the personal data processed by ChangeEngine as part of the Cloud Service as described in the Data Processing Agreement attached hereto as Exhibit A (“DPA”) for Cloud Services incorporated into the Order Form in compliance with applicable data protection law.
4. Modifications.
  1. The Cloud Service and ChangeEngine Policies may be modified by ChangeEngine. ChangeEngine will inform Customer of modifications by email, the support portal, release notes, Documentation or the Cloud Service. The information will be delivered by email if the modification is not solely an enhancement. Modifications may include optional new features for the Cloud Service, which Customer may use subject to the then-current Supplement and Documentation.
  2. If Customer establishes that a modification is not solely an enhancement and materially reduces the Cloud Service, Customer may terminate its subscriptions to the affected Cloud Service by providing written notice to ChangeEngine within thirty days after receipt of ChangeEngine’ informational notice.
5. Analyses. ChangeEngine or ChangeEngine’ Affiliates may create analyses utilizing, in part, Customer Data and information derived from Customer’s use of the Cloud Service and Consulting Services, as set forth below (“Analyses”). Analyses will anonymize and aggregate information and will be treated as Cloud Materials. Unless otherwise agreed, personal data contained in Customer Data is only used to provide the Cloud Service and Consulting Services. Analyses may be used for the following purposes:
  1. product improvement (in particular, product features and functionality, workflows and user interfaces) and development of new ChangeEngine products and services,
  2. improving resource allocation and support,
  3. internal demand planning,
  4. training and developing machine learning algorithms,
  5. improving product performance,
  6. verification of security and data integrity
  7. identification of industry trends and developments, creation of indices and anonymous benchmarking
CUSTOMER AND PERSONAL DATA
1. Customer Data. Customer is responsible for the Customer Data and entering it into the Cloud Service. Customer grants to ChangeEngine (including ChangeEngine’s Affiliates and subcontractors) a nonexclusive right to process Customer Data solely to provide and support the Cloud Service.
2. Personal Data. Customer will collect and maintain all personal data contained in the Customer Data in compliance with applicable data privacy and protection laws.
3. Security. Customer will maintain reasonable security standards for its Authorized Users’ use of the Cloud Service. Customer will not conduct or authorize penetration tests of the Cloud Service without advance approval from ChangeEngine.
4. Access to Customer Data.
  1. During the Subscription Term, Customer can access its Customer Data at any time. Customer may export and retrieve its Customer Data in a standard format. Export and retrieval may be subject to technical limitations, in which case ChangeEngine and Customer will find a reasonable method to allow Customer access to Customer Data.
  2. Before the Subscription Term expires, if available, Customer may use ChangeEngine’ self-service export tools (as available) to perform a final export of Customer Data from the Cloud Service. Alternatively, Customer may request data export through support ticket.
  3. At the end of the Agreement, ChangeEngine will delete the Customer Data remaining on servers hosting the Cloud Service unless applicable law requires retention. Retained data is subject to the confidentiality provisions of the Agreement.
  4. In the event of third party legal proceedings relating to the Customer Data, ChangeEngine will cooperate with Customer and comply with applicable law (both at Customer’s expense) with respect to handling of the Customer Data.
FEES AND TAXES
1. Fees and Payment. Customer will pay fees as stated in the Order Form. After prior written notice, ChangeEngine may suspend Customer’s use of the Cloud Service until payment is made. Customer cannot withhold, reduce or set-off fees owed nor reduce Usage Metrics during the Subscription Term. All Order Forms are non-cancellable and fees non-refundable.
2. Taxes. Fees and other charges imposed under an Order Form will not include taxes, all of which will be for Customer’s account. Customer is responsible for all taxes, other than ChangeEngine’s income and payroll taxes. Customer must provide to ChangeEngine any direct pay permits or valid tax-exempt certificates prior to signing an Order Form. If ChangeEngine is required to pay taxes (other than its income and payroll taxes), Customer will reimburse ChangeEngine for those amounts and indemnify ChangeEngine for any taxes and related costs paid or payable by ChangeEngine attributable to those taxes.
TERM AND TERMINATION
1. Term. The Subscription Term is as stated in the Order Form.
2. Termination. A party may terminate the Agreement:
  1. upon thirty days written notice of the other party’s material breach unless the breach is cured during that thirty day period,
  2. as permitted under Sections 3.4(b), 7.3(b), 7.4(c), or 8.1(c) (with termination effective thirty days after receipt of notice in each of these cases), or
  3. immediately if the other party files for bankruptcy, becomes insolvent, or makes an assignment for the benefit of creditors, or otherwise materially breaches Sections 11 or 12.6.
3. Refund and Payments. For termination by Customer or an 8.1(c) termination, Customer will be entitled to:
  1. a pro-rata refund in the amount of the unused portion of prepaid fees for the terminated subscription calculated as of the effective date of termination, and
  2. a release from the obligation to pay fees due for periods after the effective date of termination.
4. Effect of Expiration or Termination. Upon the effective date of expiration or termination of the Agreement:
  1. Customer’s right to use the Cloud Service and all ChangeEngine Confidential Information will end,
  2. Confidential Information of the disclosing party will be returned or destroyed as required by the Agreement, and
  3. termination or expiration of the Agreement does not affect other agreements between the parties.
5. Survival. Sections 1, 5, 6.3, 6.4, 6.5, 8, 9, 10, 11, and 12 will survive the expiration or termination of the Agreement.
WARRANTIES
1. Compliance with Law. Each party warrants its current and continuing compliance with all laws and regulations applicable to it in connection with:
  1. in the case of ChangeEngine, the operation of ChangeEngine's business as it relates to the Cloud Service, and
  2. in the case of Customer, the Customer Data and Customer’s use of the Cloud Service.
2. Good Industry Practices. ChangeEngine warrants that it will provide the Cloud Service:
  1. in substantial conformance with the Documentation; and
  2. with the degree of skill and care reasonably expected from a skilled and experienced global supplier of services substantially similar to the nature and complexity of the Cloud Service.
3. Remedy. Customer’s sole and exclusive remedies and ChangeEngine's entire liability for breach of the warranty under Section 7.2 will be:
  1. the re-performance of the deficient Cloud Service, and
  2. if ChangeEngine fails to re-perform, Customer may terminate its subscription for the affected Cloud Service. Any termination must occur within three months of ChangeEngine's failure to re-perform.
4. System Availability.
  1. ChangeEngine warrants to maintain an average monthly system availability for the production system of the Cloud Service as defined in the applicable service level agreement or Supplement (“SLA”).
  2. Customer’s sole and exclusive remedy for ChangeEngine's breach of the SLA is the issuance of a credit in the amount described in the SLA. Customer will follow ChangeEngine's posted credit claim procedure. When the validity of the service credit is confirmed by ChangeEngine in writing (email permitted), Customer may apply the credit to a future invoice for the Cloud Service or request a refund for the amount of the credit if no future invoice is due.
  3. In the event ChangeEngine fails to meet the SLA (i) for four consecutive months, or (ii) for five or more months during any twelve months period, or (iii) at a system availability level of at least 95% for one calendar month, Customer may terminate its subscriptions for the affected Cloud Service by providing ChangeEngine with written notice within thirty days after the failure.
5. Warranty Exclusions. The warranties in Sections 7.2 and 7.4 will not apply if:
  1. the Cloud Service is not used in accordance with the Agreement or Documentation,
  2. any non-conformity is caused by Customer, or by any product or service not provided by ChangeEngine, or
  3. the Cloud Service was provided for no fee.
6. Disclaimer. Except as expressly provided in the Agreement, neither ChangeEngine nor its subcontractors make any representation or warranties, express or implied, statutory or otherwise, regarding any matter, including the merchantability, suitability, originality, or fitness for a particular use or purpose, non-infringement or results to be derived from the use of or integration with any products or services provided under the Agreement, or that the operation of any products or services will be secure, uninterrupted or error free. Customer agrees that it is not relying on delivery of future functionality, public comments or advertising of ChangeEngine or product roadmaps in obtaining subscriptions for any Cloud Service.
THIRD PARTY CLAIMS
1. Claims Brought Against Customer.
  1. ChangeEngine will defend Customer against claims brought against Customer and its Affiliates by any third party alleging that Customer’s and its Affiliates’ use of the Cloud Service infringes or misappropriates a patent claim, copyright, or trade secret right. ChangeEngine will indemnify Customer against all damages finally awarded against Customer (or the amount of any settlement ChangeEngine enters into) with respect to these claims.
  2. ChangeEngine's obligations under Section 8.1 will not apply if the claim results from (i) Customer’s breach of Section 2, (ii) use of the Cloud Service in conjunction with any product or service not provided by ChangeEngine, or (iii) use of the Cloud Service provided for no fee.
  3. In the event a claim is made or likely to be made, ChangeEngine may (i) procure for Customer the right to continue using the Cloud Service under the terms of the Agreement, or (ii) replace or modify the Cloud Service to be non-infringing without a material decrease in functionality. If these options are not reasonably available, ChangeEngine or Customer may terminate Customer’s subscription to the affected Cloud Service upon written notice to the other.
2. Claims Brought Against ChangeEngine. Customer will defend ChangeEngine against claims brought against ChangeEngine and its Affiliates and subcontractors by any third party related to Customer Data. Customer will indemnify ChangeEngine against all damages finally awarded against ChangeEngine and its Affiliates and subcontractors (or the amount of any settlement Customer enters into) with respect to these claims.
3. Third Party Claim Procedure.
  1. The party against whom a third party claim is brought will timely notify the other party in writing of any claim, reasonably cooperate in the defense and may appear (at its own expense) through counsel reasonably acceptable to the party providing the defense.
  2. The party that is obligated to defend a claim will have the right to fully control the defense.
  3. Any settlement of a claim will not include a financial or specific performance obligation on, or admission of liability by, the party against whom the claim is brought.
4. Exclusive Remedy. The provisions of Section 8 state the sole, exclusive, and entire liability of the parties, their Affiliates, Business Partners and subcontractors to the other party, and is the other party’s sole remedy, with respect to covered third party claims and to the infringement or misappropriation of third party intellectual property rights.
LIMITATION OF LIABILITY
1. Unlimited Liability. Neither party will exclude or limit its liability for damages resulting from:
  1. the parties’ obligations under Section 8.1(a) and 8.2,
  2. unauthorized use or disclosure of Confidential Information,
  3. either party’s breach of its data protection and security obligations that result in an unauthorized use or disclosure of personal data,
  4. death or bodily injury arising from either party’s gross negligence or willful misconduct, or
  5. any failure by Customer to pay any fees due under the Agreement.
2. Liability Cap. Subject to Sections 9.1 and 9.3, the maximum aggregate liability of either party (or its respective Affiliates or ChangeEngine's subcontractors) to the other or any other person or entity for all events (or series of connected events) arising in any twelve month period will not exceed the annual subscription fees paid for the applicable Cloud Service directly causing the damage for that twelve month period. Any “twelve month period” commences on the Subscription Term start date or any of its yearly anniversaries.
3. Exclusion of Damages. Subject to Section 9.1:
  1. neither party (nor its respective Affiliates or ChangeEngine's subcontractors) will be liable to the other party for any special, incidental, consequential, or indirect damages, loss of good will or business profits, work stoppage or for exemplary or punitive damages, and
  2. ChangeEngine will not be liable for any damages caused by any Cloud Service provided for no fee.
4. Risk Allocation. The Agreement allocates the risks between ChangeEngine and Customer. The fees for the Cloud Service and Consulting Services reflect this allocation of risk and limitations of liability.
INTELLECTUAL PROPERTY RIGHTS
1. CHANGEENGINE Ownership. ChangeEngine, ChangeEngine's Affiliates or licensors own all intellectual property rights in and related to the Cloud Service, Cloud Materials, Documentation, Consulting Services, design contributions, related knowledge or processes, and any derivative works of them. All rights not expressly granted to Customer are reserved to ChangeEngine and its licensors.
2. Customer Ownership. Customer retains all rights in and related to the Customer Data. ChangeEngine may use Customer-provided trademarks solely to provide and support the Cloud Service.
3. Non-Assertion of Rights. Customer covenants, on behalf of itself and its successors and assigns, not to assert against ChangeEngine and its Affiliates or licensors, any rights, or any claims of any rights, in any Cloud Service, Cloud Materials, Documentation, or Consulting Services.
CONFIDENTIALITY
1. Use of Confidential Information,
  1. The receiving party will protect all Confidential Information of the disclosing party as strictly confidential to the same extent it protects its own Confidential Information, and not less than a reasonable standard of care. Receiving party will not disclose any Confidential Information of the disclosing party to any person other than its personnel, representatives or Authorized Users whose access is necessary to enable it to exercise its rights or perform its obligations under the Agreement and who are under obligations of confidentiality substantially similar to those in Section 11. Customer will not disclose the Agreement or the pricing to any third party.
  2. Confidential Information of either party disclosed prior to execution of the Agreement will be subject to Section 11.
  3. In the event of legal proceedings relating to the Confidential Information, the receiving party will cooperate with the disclosing party and comply with applicable law (all at disclosing party’s expense) with respect to handling of the Confidential Information.
2. Exceptions. The restrictions on use or disclosure of Confidential Information will not apply to any Confidential Information that:
  1. is independently developed by the receiving party without reference to the disclosing party’s Confidential Information,
  2. is generally available to the public without breach of the Agreement by the receiving party,
  3. at the time of disclosure, was known to the receiving party free of confidentiality restrictions, or
  4. the disclosing party agrees in writing is free of confidentiality restrictions.
3. Publicity. Neither party will use the name of the other party in publicity activities without the prior written consent of the other, except that Customer agrees that ChangeEngine may use Customer’s name in customer listings or quarterly calls with its investors or, at times mutually agreeable to the parties, as part of ChangeEngine's marketing efforts (including reference calls and stories, press testimonials, site visits). Customer agrees that ChangeEngine may share information on Customer with its Affiliates for marketing and other business purposes and that it has secured appropriate authorizations to share Customer employee contact information with ChangeEngine.
MISCELLANEOUS
1. Severability If any provision of the Agreement is held to be invalid or unenforceable, the invalidity or unenforceability will not affect the other provisions of the Agreement.
2. No Waiver. A waiver of any breach of the Agreement is not deemed a waiver of any other breach.
3. Electronic Signature. Electronic signatures that comply with applicable law are deemed original signatures.
4. Regulatory Matters. ChangeEngine Confidential Information is subject to export control laws of various countries, including the laws of the United States. Customer will not submit ChangeEngine Confidential Information to any government agency for licensing consideration or other regulatory approval, and will not export ChangeEngine Confidential Information to countries, persons or entities if prohibited by export laws.
5. Notices. All notices will be in writing and given when delivered to the address set forth in an Order Form with copy to the legal department. Notices by ChangeEngine relating to the operation or support of the Cloud Service and those under Sections 3.4 and 5.1 may be in the form of an electronic notice to Customer’s authorized representative or administrator identified in the Order Form.
6. Assignment. Without ChangeEngine's prior written consent, Customer may not assign or transfer the Agreement (or any of its rights or obligations) to any party. ChangeEngine may assign the Agreement to ChangeEngine Affiliates.
7. Subcontracting. ChangeEngine may subcontract parts of the Cloud Service or Consulting Services to third parties. ChangeEngine is responsible for breaches of the Agreement caused by its subcontractors.
8. Relationship of the Parties. The parties are independent contractors, and no partnership, franchise, joint venture, agency, fiduciary or employment relationship between the parties is created by the Agreement.
9. Force Majeure. Any delay in performance (other than for the payment of amounts due) caused by conditions beyond the reasonable control of the performing party is not a breach of the Agreement. The time for performance will be extended for a period equal to the duration of the conditions preventing performance
10. Governing Law. The Agreement and any claims relating to its subject matter will be governed by and construed under the laws of the United States and the state of Utah, without reference to its conflicts of law principles. All disputes will be subject to the exclusive jurisdiction of the courts located in Salt Lake City, Utah. The United Nations Convention on Contracts for the International Sale of Goods and the Uniform Computer Information Transactions Act (where enacted) will not apply to the Agreement. Either party must initiate a cause of action for any claim(s) relating to the Agreement and its subject matter within one year from the date when the party knew, or should have known after reasonable investigation, of the facts giving rise to the claim(s).
11. Entire Agreement. The Agreement constitutes the complete and exclusive statement of the agreement between ChangeEngine and Customer in connection with the parties’ business relationship related to the subject matter of the Agreement. All previous representations, discussions, and writings (including any confidentiality agreements) are merged in and superseded by the Agreement and the parties disclaim any reliance on them. The Agreement may be modified solely in writing signed by both parties, except as permitted under Section 3.4. An Agreement will prevail over terms and conditions of any Customer-issued purchase order, which will have no force and effect, even if ChangeEngine accepts or does not otherwise reject the purchase order.
12. Data Processing Agreement. Where Customer is processing personal data using the Services, the DPA shall govern the processing of such personal data.

Glossary

“Affiliate”of a party means any legal entity in which a party, directly or indirectly, holds more than fifty percent (50%) of the entity’s shares or voting rights. Any legal entity will be considered an Affiliate as long as that interest is maintained.
“Agreement” means an Order Form and documents incorporated into an Order Form.
“Authorized User” means any individual to whom Customer grants access authorization to use the Cloud Service that is an employee, agent, contractor or representative of
1. Customer
2. Customer’s Affiliates, and/or
3. Customer’s and Customer’s Affiliates’ Business Partners.
“Business Partner” means a legal entity that requires use of a Cloud Service in connection with Customer’s and its Affiliates’ internal business operations. These may include customers, distributors, service providers and/or suppliers of Customer.
“Cloud Service” means any distinct, subscription-based, hosted, supported and operated on- demand solution provided by ChangeEngine under an Order Form.
“Cloud Materials” mean any materials provided or developed by ChangeEngine (independently or with Customer’s cooperation) in the course of performance under the Agreement, including in the delivery of any support or Consulting Services to Customer. Cloud Materials do not include the Customer Data, Customer Confidential Information or the Cloud Service.
“Confidential Information” means
1. with respect to Customer: (i) the Customer Data, (ii) Customer marketing and business requirements, (iii) Customer implementation plans, and/or (iv) Customer financial information, and
2. with respect to ChangeEngine: (i) the Cloud Service, Documentation, Cloud Materials and analyses under Section 3.5, and (ii) information regarding ChangeEngine research and development, product offerings, pricing and availability.
3. Confidential Information of either ChangeEngine or Customer also includes information which the disclosing party protects against unrestricted disclosure to others that (i) the disclosing party or its representatives designates as confidential at the time of disclosure, or (ii) should reasonably be understood to be confidential given the nature of the information and the circumstances surrounding its disclosure
“Consulting Services” means professional services, such as implementation, configuration, custom development and training, performed by ChangeEngine's employees or subcontractors as described in any Order Form and which are governed by the Supplement for Consulting Services or similar agreement.
“Customer Data” means any content, materials, data and information that Authorized Users enter into the production system of a Cloud Service or that Customer derives from its use of and stores in the Cloud Service (e.g. Customer-specific reports). Customer Data and its derivatives will not include ChangeEngine's Confidential Information.
“Documentation” means ChangeEngine's then-current technical and functional documentation as well as any roles and responsibilities descriptions, if applicable, for the Cloud Service which is made available to Customer with the Cloud Service.
“Order Form” means the medium by which Customer purchases a Cloud Service, including, as applicable, an ordering document that references the GTC.
“ChangeEngine Policies” means the operational guidelines and policies applied by ChangeEngine to provide and support the Cloud Service as incorporated in an Order Form.
“Subscription Term” means the term of a Cloud Service subscription identified in the applicable Order Form, including all renewals.
“Supplement” means as applicable, the supplemental terms and conditions that apply to the Cloud Service and that are incorporated in an Order Form.
“Usage Metric” means the standard of measurement for determining the permitted use and calculating the fees due for a Cloud Service as set forth in an Order Form.

Exhibit A

Data Processing Agreement

PERSONAL DATA PROCESSING AGREEMENT FOR CHANGEENGINE CLOUD SERVICES

This Data Processing Addendum (“DPA”) is entered into BETWEEN (1) Customer; and(2) ChangeEngine.

DEFINITIONS
1. “Controller” means the natural or legal person, public authority, agency or other body which, alone or jointly with others, determines the purposes and means of the processing of Personal Data; for the purposes of this DPA, where Customer acts as processor for another controller, it shall in relation to ChangeEngine be deemed as additional and independent Controller with the respective controller rights and obligations under this DPA.
2. “Data Protection Law” means the applicable legislation protecting the fundamental rights and freedoms of persons and their right to privacy with regard to the processing of Personal Data under the Agreement.
3. “Data Subject” means an identified or identifiable natural person as defined by Data Protection Law.
4. “EEA” means the European Economic Area, namely the European Union Member States along with Iceland, Liechtenstein and Norway.
5. “GDPR” means the General Data Protection Regulation 2016/679.
6. “New SCC Relevant Transfer” means a transfer (or an onward transfer) to a Third Country of Personal Data that is either subject to GDPR or to applicable Data Protection Law and where any required adequacy means under GDPR or applicable Data Protection Law can be met by entering into the New Standard Contractual Clauses.
7. “New Standard Contractual Clauses” means the unchanged standard contractual clauses, published by the European Commission, reference 2021/914 or any subsequent final version thereof which shall automatically apply. To avoid doubt Modules 2 and 3 shall apply as set out in Section 8.
8. “Personal Data” means any information relating to a Data Subject which is protected under Data Protection Law. For the purposes of the DPA, it includes only personal data which is:
  1. entered by Customer or its Authorized Users into or derived from their use of the Cloud Service; or
  2. supplied to or accessed by ChangeEngine or its Subprocessors in order to provide support under the Agreement. Personal Data is a sub-set of Customer Data (as defined under the Agreement).
9. “Personal Data Breach” means a confirmed:
  1. accidental or unlawful destruction, loss, alteration, unauthorized disclosure of or unauthorized third-party access to Personal Data; or
  2. similar incident involving Personal Data, in each case for which a Controller is required under Data Protection Law to provide notice to competent data protection authorities or Data Subjects.
10. “Processor” means a natural or legal person, public authority, agency or other body which processes personal data on behalf of the controller, be it directly as processor of a controller or indirectly as subprocessor of a processor which processes personal data on behalf of the controller.
11. “Schedule” means the numbered Appendix with respect to the Standard Contractual Clauses (2010) and the numbered Annex with respect to the New Standard Contractual Clauses.
12. “Standard Contractual Clauses (2010)” means the Standard Contractual Clauses (processors) published by the European Commission, reference 2010/87/EU.
13. “Subprocessor” or “sub-processor” means ChangeEngine Affiliates, and third parties engaged by ChangeEngine, ChangeEngine's Affiliates in connection with the Cloud Service and which process Personal Data in accordance with this DPA.
14. “Technical and Organizational Measures” means the technical and organizational measures for the relevant Cloud Service set out in Schedule 2.
15. Third Country” mmeans any country, organization or territory not acknowledged by the European Union under Article 45 of GDPR as a safe country with an adequate level of data protection.
BACKGROUND
1. Purpose and Application
  1. This document (“DPA”) is incorporated into the Agreement and forms part of a written (including in electronic form) contract between ChangeEngine and Customer.
  2. This DPA applies to Personal Data processed by ChangeEngine and its Subprocessors in connection with its provision of the Cloud Service.
  3. This DPA does not apply to non-production environments of the Cloud Service if such environments are made available by ChangeEngine. Customer shall not store Personal Data in such environments.
2. Structure Schedules 1 and 2 are incorporated into and form part of this DPA. They set out the agreed subject-matter, the nature and purpose of the processing, the type of Personal Data, categories of data subjects (Schedule 1) and the applicable Technical and Organizational Measures (Schedule 2).
3. Governance
  1. ChangeEngine acts as a Processor and Customer and those entities that it permits to use the Cloud Service act as Controllers under the DPA.
  2. Customer acts as a single point of contact and shall obtain any relevant authorizations, consents and permissions for the processing of Personal Data in accordance with this DPA, including, where applicable approval by Controllers to use ChangeEngine as a Processor. Where authorizations, consent, instructions or permissions are provided by Customer these are provided not only on behalf of the Customer but also on behalf of any other Controller using the Cloud Service. Where ChangeEngine informs or gives notice to Customer, such information or notice is deemed received by those Controllers permitted by Customer to use the Cloud Service. Customer shall forward such information and notices to the relevant Controllers.
SECURITY OF PROCESSING
1. Applicability of the Technical and Organizational Measures ChangeEngine has implemented and will apply the Technical and Organizational Measures. Customer has reviewed such measures and agrees that as to the Cloud Service selected by Customer in the Order Form the measures are appropriate taking into account the state of the art, the costs of implementation, nature, scope, context and purposes of the processing of Personal Data.
2. Changes.
  1. ChangeEngine applies the Technical and Organizational Measures to ChangeEngine's entire customer base hosted out of the same data center or receiving the same Cloud Service. ChangeEngine may change the Technical and Organizational Measures at any time without notice so long as it maintains a comparable or better level of security. Individual measures may be replaced by new measures that serve the same purpose without diminishing the security level protecting Personal Data.
  2. ChangeEngine will publish updated versions of the Technical and Organizational Measures at www.changeengine.com/terms-of-service.
CHANGEENGINE OBLIGATIONS
1. Instructions from Customer. ChangeEngine will process Personal Data only in accordance with documented instructions from Customer. The Agreement (including this DPA) constitutes such documented initial instructions and each use of the Cloud Service then constitutes further instructions. ChangeEngine will use reasonable efforts to follow any other Customer instructions, as long as they are required by Data Protection Law, technically feasible and do not require changes to the Cloud Service. If any of the before-mentioned exceptions apply, or ChangeEngine otherwise cannot comply with an instruction or is of the opinion that an instruction infringes Data Protection Law, ChangeEngine will immediately notify Customer (email permitted).
2. Processing on Legal Requirement. ChangeEngine may also process Personal Data where required to do so by applicable law. In such a case, ChangeEngine shall inform Customer of that legal requirement before processing unless that law prohibits such information on important grounds of public interest.
3. Personnel. To process Personal Data, ChangeEngine and its Subprocessors shall only grant access to authorized personnel who have committed themselves to confidentiality. ChangeEngine and its Subprocessors will regularly train personnel having access to Personal Data in applicable data security and data privacy measures.
4. Cooperation.
  1. At Customer’s request, ChangeEngine will reasonably cooperate with Customer and Controllers in dealing with requests from Data Subjects or regulatory authorities regarding ChangeEngine's processing of Personal Data or any Personal Data Breach.
  2. If ChangeEngine receives a request from a Data Subject in relation to the Personal Data processing hereunder, ChangeEngine will promptly notify Customer (where the Data Subject has provided information to identify the Customer) via e-mail and shall not respond to such request itself but instead ask the Data Subject to redirect its request to Customer.
  3. In the event of a dispute with a Data Subject as it relates to ChangeEngine's processing of Personal Data under this DPA, the Parties shall keep each other informed and, where appropriate, reasonably co-operate with the aim of resolving the dispute amicably with the Data Subject.
  4. ChangeEngine shall provide functionality for production systems that supports Customer’s ability to correct, delete or anonymize Personal Data from a Cloud Service, or restrict its processing in line with Data Protection Law. Where such functionality is not provided, ChangeEngine will correct, delete or anonymize any Personal Data, or restrict its processing, in accordance with the Customer’s instruction and Data Protection Law.
5. Personal Data Breach Notification. ChangeEngine will notify Customer without undue delay after becoming aware of any Personal Data Breach and provide reasonable information in its possession to assist Customer to meet Customer’s obligations to report a Personal Data Breach as required under Data Protection Law. ChangeEngine may provide such information in phases as it becomes available. Such notification shall not be interpreted or construed as an admission of fault or liability by ChangeEngine.
6. Data Protection Impact Assessment. If, pursuant to Data Protection Law, Customer (or its Controllers) are required to perform a data protection impact assessment or prior consultation with a regulator, at Customer’s request, ChangeEngine will provide such documents as are generally available for the Cloud Service (for example, this DPA, the Agreement, audit reports and certifications). Any additional assistance shall be mutually agreed between the Parties.
DATA EXPORT AND DELETION
1. Export and Retrieval by Customer. During the Subscription Term and subject to the Agreement, Customer can access its Personal Data at any time. Customer may export and retrieve its Personal Data in a standard format. Export and retrieval may be subject to technical limitations, in which case ChangeEngine and Customer will find a reasonable method to allow Customer access to Personal Data.
2. Deletion. Before the Subscription Term expires, Customer may use ChangeEngine's self-service export tools (as available) to perform a final export of Personal Data from the Cloud Service (which shall constitute a “return” of Personal Data). At the end of the Subscription Term, Customer hereby instructs ChangeEngine to delete the Personal Data remaining on servers hosting the Cloud Service within a reasonable time period in line with Data Protection Law (not to exceed 6 months) unless applicable law requires retention.
CERTIFICATIONS AND AUDITS
1. Customer Audit. Customer or its independent third party auditor reasonably acceptable to ChangeEngine (which shall not include any third party auditors who are either a competitor of ChangeEngine or not suitably qualified or independent) may audit ChangeEngine's control environment and security practices relevant to Personal Data processed by ChangeEngine only if:
  1. ChangeEngine has not provided sufficient evidence of its compliance with the Technical and Organizational Measures that protect the production systems of the Cloud Service through providing either: (i) a certification as to compliance with ISO 27001 or other standards (scope as defined in the certificate); or (ii) a valid ISAE3402 or ISAE3000 or other SOC1-3 attestation report. Upon Customer’s request audit reports or ISO certifications are available through the third party auditor or ChangeEngine;
  2. a Personal Data Breach has occurred;
  3. an audit is formally requested by Customer’s data protection authority; or
  4. provided under mandatory Data Protection Law conferring Customer a direct audit right and provided that Customer shall only audit once in any 12 month period unless mandatory Data Protection Law requires more frequent audits.
2. Other Controller Audit.Any other Controller may assume Customer’s rights under Section 6.1 only if it applies directly to the Controller and such audit is permitted and coordinated by Customer. Customer shall use all reasonable means to combine audits of multiple other Controllers to avoid multiple audits unless the audit must be undertaken by the other Controller itself under Data Protection Law. If several Controllers whose Personal Data is processed by ChangeEngine on the basis of the Agreement require an audit, Customer shall use all reasonable means to combine the audits and to avoid multiple audits.
3. Scope of Audit. Customer shall provide at least 60 days advance notice of any audit unless mandatory Data Protection Law or a competent data protection authority requires shorter notice. The frequency and scope of any audits shall be mutually agreed between the parties acting reasonably and in good faith. Customer audits shall be limited in time to a maximum of 3 business days. Beyond such restrictions, the parties will use current certifications or other audit reports to avoid or minimize repetitive audits. Customer shall provide the results of any audit to ChangeEngine.
4. Cost of Audits. Customer shall bear the costs of any audit unless such audit reveals a material breach by ChangeEngine of this DPA, then ChangeEngine shall bear its own expenses of an audit. If an audit determines that ChangeEngine has breached its obligations under the DPA, ChangeEngine will promptly remedy the breach at its own cost.
SUBPROCESSORS
1. Permitted Use. ChangeEngine is granted a general authorization to subcontract the processing of Personal Data to Subprocessors, provided that:
  1. ChangeEngine or ChangeEngine affiliates on its behalf shall engage Subprocessors under a written (including in electronic form) contract consistent with the terms of this DPA in relation to the Subprocessor’s processing of Personal Data. ChangeEngine shall be liable for any breaches by the Subprocessor in accordance with the terms of this Agreement;
  2. ChangeEngine will evaluate the security, privacy and confidentiality practices of a Subprocessor prior to selection to establish that it is capable of providing the level of protection of Personal Data required by this DPA; and
  3. ChangeEngine's list of Subprocessors in place on the effective date of the Agreement is available to the Customer upon request, including the name, address and role of each Subprocessor ChangeEngine uses to provide the Cloud Service.
2. New Subprocessors. ChangeEngine's use of Subprocessors is at its discretion, provided that:
  1. ChangeEngine will inform Customer in advance (by email or by posting on the Cloud Service) of any intended additions or replacements to the list of Subprocessors including name, address and role of the new Subprocessor; and
  2. Customer may object to such changes as set out in Section 7.3.
3. Objections to New Subprocessors.
  1. If Customer has a legitimate reason under Data Protection Law to object to the new Subprocessors’ processing of Personal Data, Customer may terminate the Agreement (limited to the Cloud Service for which the new Subprocessor is intended to be used) on written notice to ChangeEngine. Such termination shall take effect at the time determined by the Customer which shall be no later than 30 days from the date of ChangeEngine's notice to Customer informing Customer of the new Subprocessor. If Customer does not terminate within this 30 day period, Customer is deemed to have accepted the new Subprocessor.
  2. Within the 30 day period from the date of ChangeEngine's notice to Customer informing Customer of the new Subprocessor, Customer may request that the parties discuss in good faith a resolution to the objection. Such discussions shall not extend the period for termination and do not affect ChangeEngine's right to use the new Subprocessor(s) after the 30 day period.
  3. Any termination under this Section 7.3 shall be deemed to be without fault by either party and shall be subject to the terms of the Agreement.
4. Emergency Replacement.ChangeEngine may replace a Subprocessor without advance notice where the reason for the change is outside of ChangeEngine's reasonable control and prompt replacement is required for security or other urgent reasons. In this case, ChangeEngine will inform Customer of the replacement Subprocessor as soon as possible following its appointment. Section 7.2 applies accordingly.
INTERNATIONAL PROCESSING
1. Conditions for International Processing. ChangeEngine shall be entitled to process Personal Data, including by using Subprocessors, in accordance with this DPA outside the country in which the Customer is located as permitted under Data Protection Law.
2. Applicability of the Standard Contractual Clauses (2010)
  1. Where, for the period up to and including 26 September 2021, Personal Data of a Controller that is subject to GDPR is processed in a Third Country, or where Personal Data of a Swiss or United Kingdom based Controller or another Controller is processed in a Third Country and such international processing requires an adequacy means under the laws of the country of the Controller and the required adequacy means can be met by entering into Standard Contractual Clauses (2010), then:
    1. ChangeEngine and Customer enter into the Standard Contractual Clauses (2010);
    2. Customer joins the Standard Contractual Clauses (2010) entered into by ChangeEngine or the relevant ChangeEngine affiliate and the Subprocessor as an independent owner of rights and obligations; or
    3. Other Controllers whose use of the Cloud Services has been authorized by Customer under the Agreement may also enter into Standard Contractual Clauses (2010) with ChangeEngine or the relevant Subprocessors in the same manner as Customer in accordance with Section 8.2.1 a) and b) above. In such case, Customer will enter into the Standard Contractual Clauses (2010) on behalf of the other Controllers.
  2. The Standard Contractual Clauses (2010) shall be governed by the law of the country in which the relevant Controller is established.
  3. Where applicable Data Protection Law adopts the New Standard Contractual Clauses as meeting any required adequacy means as an alternative or update to the Standard Contractual Clauses (2010) then the New Standard Contractual Clauses shall apply in accordance with Section 8.3.
3. Applicability of New Standard Contractual Clauses
  1. The following shall apply with effect from 27 September 2021 and shall solely apply in respect of New SCC Relevant Transfers
    1. Where ChangeEngine is not located in a Third Country and acts as a data exporter, ChangeEngine has entered in to the New Standard Contractual Clauses with each Subprocessor as the data importer. Module 3 (Processor to Processor) of the New Standard Contractual Clauses shall apply to such New SCC Relevant Transfers.
    2. Where ChangeEngine is located in a Third Country:
      ChangeEngine and Customer hereby enter into the New Standard Contractual Clauses with Customer as the data exporter and ChangeEngine as the data importer which shall apply as follows:
      
      Module 2 (Controller to Processor) shall apply where Customer is a Controller; and
      
      Module 3 (Processor to Processor) shall apply where Customer is a Processor. Where Customer acts as Processor under Module 3 (Processor to Processor) of the New Standard Contractual Clauses, ChangeEngine acknowledges that Customer acts as Processor under the instructions of its Controller(s).
  2. Other Controllers or Processors whose use of the Cloud Services has been authorized by Customer under the Agreement may also enter into the New Standard Contractual Clauses with ChangeEngine in the same manner as Customer in accordance with Section 8.3.1.2 above. In such case, Customer enters into the New Standard Contractual Clauses on behalf of the other Controllers or Processors.
  3. With respect to a New SCC Relevant Transfer, on request from a Data Subject to the Customer, Customer may make a copy of Module 2 or 3 of the New Standard Contractual Clauses entered into between Customer and ChangeEngine (including the relevant Schedules), available to Data Subjects.
  4. The governing law of the New Standard Contractual Clauses shall be the law of Ireland.
4. Relation of the Standard Contractual Clauses to the Agreement Nothing in the Agreement shall be construed to prevail over any conflicting clause of the Standard Contractual Clauses (2010) or the New Standard Contractual Clauses. For the avoidance of doubt, where this DPA further specifies audit and Subprocessor rules, such specifications also apply in relation to the Standard Contractual Clauses (2010) and the New Standard Contractual Clauses.
5. Third Party Beneficiary Right under the New Standard Contractual Clauses
  1. Where Customer is located in a Third Country and acting as a data importer under Module 2 or Module 3 of the New Standard Contractual Clauses and ChangeEngine is acting as Customer’s sub-processor under the applicable Module, the respective data exporter shall have the following third party beneficiary right:
  2. In the event that Customer has factually disappeared, ceased to exist in law or has become insolvent (in all cases without a successor entity that has assumed the legal obligations of the Customer by contract or by operation of law), the respective data exporter shall have the right to terminate the affected Cloud Service solely to the extent that the data exporter’s Personal Data is processed. In such event, the respective data exporter also instructs ChangeEngine to erase or return the Personal Data.
DOCUMENTATION; RECORDS OF PROCESSING
1. Each party is responsible for its compliance with its documentation requirements, in particular maintaining records of processing where required under Data Protection Law. Each party shall reasonably assist the other party in its documentation requirements, including providing the information the other party needs from it in a manner reasonably requested by the other party (such as using an electronic system), in order to enable the other party to comply with any obligations relating to maintaining records of processing.

Schedule 1 Description of the Processing

This Schedule 1 applies to describe the Processing of Personal Data for the purposes of the Standard Contractual Clauses (2010), New Standard Contractual Clauses and applicable Data Protection Law.

A. LIST OF PARTIES
1. Under the Standard Contractual Clauses (2010)
  1. Data Exporter
    The data exporter under the Standard Contractual Clauses (2010) is the Customer who subscribed to a Cloud Service that allows Authorized Users to enter, amend, use, delete or otherwise process Personal Data. Where the Customer allows other Controllers to also use the Cloud Service, these other Controllers are also data exporters.
  2. Data Importer
    ChangeEngine and its Subprocessors that provide and support the Cloud Service are data importers under the Standard Contractual Clauses (2010).
2. Under the New Standard Contractual Clauses
  1. Module 2: Transfer Controller to Processor
    Where ChangeEngine is located in a Third Country, Customer is the Controller and ChangeEngine is the Processor, then Customer is the data exporter and ChangeEngine is the data importer.
  2. Module 3: Transfer Processor to Processor
    Where ChangeEngine is located in a Third Country, Customer is a Processor and ChangeEngine is a Processor, then Customer is the data exporter and ChangeEngine is the data importer.
B. DESCRIPTION OF TRANSFER
1. Data Subjects
  Unless provided otherwise by the data exporter, transferred Personal Data relates to the following categories of Data Subjects: employees, contractors, business partners or other individuals having Personal Data stored in the Cloud Service, transmitted to, made available to, accessed or otherwise processed by the data importer.
2. Data Categories
  The transferred Personal Data concerns the following categories of data:
  Customer determines the categories of data per Cloud Service subscribed. Customer can configure the data fields during implementation of the Cloud Service or as otherwise provided by the Cloud Service. The transferred Personal Data typically relates to the following categories of data: name, phone numbers, e-mail address, address data, system access / usage / authorization data, company name, contract data, invoice data, plus any application-specific data that Authorized Users enter into the Cloud Service.
3. Special Data Categories (if agreed)
  1. The transferred Personal Data may comprise special categories of personal data set out in the Agreement (“Sensitive Data”). ChangeEngine has taken Technical and Organizational Measures as set out in Schedule 2 to ensure a level of security appropriate to protect also Sensitive Data.
  2. The transfer of Sensitive Data may trigger the application of the following additional restrictions or safeguards if necessary to take into consideration the nature of the data and the risk of varying likelihood and severity for the rights and freedoms of natural persons (if applicable):
    1. training of personnel;
    2. encryption of data in transit and at rest;
    3. system access logging and general data access logging.
  3. In addition, the Cloud Services provide measures for handling of Sensitive Data as described in the Documentation.
4. Purposes of the data transfer and further processing; Nature of the processing
  1. The transferred Personal Data is subject to the following basic processing activities:
    1. use of Personal Data to set up, operate, monitor and provide the Cloud Service (including operational and technical support);
    2. continuous improvement of service features and functionalities provided as part of the Cloud Service including automation, transaction processing and machine learning;
    3. provision of professional services;
    4. communication to Authorized Users;
    5. storage of Personal Data in dedicated data centers (multi-tenant architecture);
    6. release, development and upload of any fixes or upgrades to the Cloud Service;
    7. back up and restoration of Personal Data stored in the Cloud Service
    8. computer processing of Personal Data, including data transmission, data retrieval, data access;
    9. network access to allow Personal Data transfer;
    10. monitoring, troubleshooting and administering the underlying Cloud Service infrastructure and database;
    11. security monitoring, network-based intrusion detection support, penetration testing; and
    12. execution of instructions of Customer in accordance with the Agreement.
  2. The purpose of the transfer is to provide and support the Cloud Service. ChangeEngine and its Subprocessors may support the Cloud Service data centers remotely. ChangeEngine and its Subprocessors provide support when a Customer submits a support ticket as further set out in the Agreement.
5. Additional description in respect of the New Standard Contractual Clauses:
  1. Applicable Modules of the New Standard Contractual Clauses
    1. Module 2: Transfer Controller to Processor
    2. Module 3: Transfer Processor to Processor
  2. For transfers to (sub-) processors, also specify subject matter, nature and duration of the processing:
    In respect of the New Standard Contractual Clauses, transfers to Subprocessors shall be on the same basis as set out in the DPA.
  3. The frequency of the transfer (e.g. whether the data is transferred on a one-off or continuous basis).
    Transfers shall be made on a continuous basis.
  4. The period for which the personal data will be retained, or, if that is not possible, the criteria used to determine that period.
    Personal Data shall be retained for the duration of the Agreement and subject to Section 5.2 of the DPA.
C. COMPETENT SUPERVISORY AUTHORITY
1. In respect of the New Standard Contractual Clauses:
  1. Module 2: Transfer Controller to Processor
  2. Module 3: Transfer Processor to Processor
2. Where Customer is the data exporter, the supervisory authority shall be the competent supervisory authority that has supervision over the Customer in accordance with Clause 13 of the New Standard Contractual Clauses.

Schedule 2 Technical and Organizational Measures

This Schedule 2 applies to describe the applicable technical and organizational measures for the purposes of the Standard Contractual Clauses (2010), New Standard Contractual Clauses and applicable Data Protection Law.
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ChangeEngine will apply and maintain the Technical and Organizational Measures.
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To the extent that the provisioning of the Cloud Service comprises New SCC Relevant Transfers, the Technical and Organizational Measures set out in Schedule 2 describe the measures and safeguards which have been taken to fully take into consideration the nature of the personal data and the risks involved. If local laws may affect the compliance with the clauses, this may trigger the application of additional safeguards applied during transmission and to the processing of the personal data in the country of destination (if applicable: encryption of data in transit, encryption of data at rest, anonymization, pseudonymization).

TECHNICAL AND ORGANIZATIONAL MEASURES
The following sections define ChangeEngine's current technical and organizational measures. ChangeEngine may change these at any time without notice so long as it maintains a comparable or better level of security. Individual measures may be replaced by new measures that serve the same purpose without diminishing the security level protecting Personal Data.
1. Physical Access Control. Unauthorized persons are prevented from gaining physical access to premises, buildings or rooms where data processing systems that process and/or use Personal Data are located.
  Measures:
  Additional measures for Data Centers:
2. System Access Control. Data processing systems used to provide the Cloud Service must be prevented from being used without authorization.
  Measures:
3. Data Access Control. Persons entitled to use data processing systems gain access only to the Personal Data that they have a right to access, and Personal Data must not be read, copied, modified or removed without authorization in the course of processing, use and storage.
  Measures:
4. Data Transmission Control. Except as necessary for the provision of the Cloud Services in accordance with the Agreement, Personal Data must not be read, copied, modified or removed without authorization during transfer. Where data carriers are physically transported, adequate measures are implemented at ChangeEngine to provide the agreed-upon service levels (for example, encryption and lead-lined containers).
  Measures:
5. Data Input Control. It will be possible to retrospectively examine and establish whether and by whom Personal Data have been entered, modified or removed from ChangeEngine data processing systems.
  Measures:
6. Job Control. Personal Data being processed on commission (i.e., Personal Data processed on a customer’s behalf) is processed solely in accordance with the Agreement and related instructions of the customer.
  Measures:
7. Availability Control. Personal Data will be protected against accidental or unauthorized destruction or loss.
  Measures:
8. Data Separation Control. Personal Data will be protected against accidental or unauthorized destruction or loss.
  Measures:
9. Data Integrity Control. Personal Data will remain intact, complete and current during processing activities.
  Measures:
  ChangeEngine has implemented a multi-layered defense strategy as a protection against unauthorized modifications.
  In particular, ChangeEngine uses the following to implement the control and measure sections described above:

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