Data Processing Agreement
Last modified: September 23, 2024
This Data Processing Agreement ("Agreement") forms part of the Contract for Services under Proton AG’s Terms and Conditions (the “Principal Agreement") between Proton AG, Route de la Galaise 32, 1228 Plan-les-Ouates, Switzerland, Company identification number CHE-354.686.492 (referred to as the "Processor") and the Company using Proton’s services (referred to as the "Company”).”
This Agreement governs the specific requirements of Data Protection Laws to the extent that Company’s use of Proton Services implies the processing of Personal Data subject to Data Protection Laws.
This Agreement is complementary to our Privacy Policy, which serves as the primary reference for our data protection practices and measures.
The term of this Agreement shall follow the term of the Principal Agreement. Terms not defined herein shall have the meaning as set forth in the Principal Agreement.
WHEREAS
A) The Company act as a Data Controller (the "Controller").
B) The Company wishes to subcontract certain Services (as defined below), which imply the processing of Personal Data, to Proton AG, acting as a Data Processor (the "Processor").
C) The Parties seek to implement a data processing agreement that complies with the requirements of the current legal framework in relation to data processing and with the Regulation (EU) 2016/679 of the European Parliament and of the Council of 27 April 2016 on the protection of natural persons with regard to the processing of Personal Data and on the free movement of such data, and repealing Directive 95/46/EC (General Data Protection Regulation) and other applicable data protection laws.
D) The Parties wish to lay down their rights and obligations.
IT IS AGREED AS FOLLOWS:
1. Definitions and Interpretation
Unless otherwise defined herein, capitalized terms and expressions used in this DPA shall have the following meaning:
1.1) "Agreement" means this Data Processing Agreement and all Schedules;
1.2) "Company Personal Data" means any Personal Data related to the Company or Company’s customers or employees Processed in connection with the Principal Agreement;
1.3) "Contracted Processor" means a Subprocessor;
1.4) "Data Protection Laws" means EU Data Protection Laws and, to the extent applicable, the data protection or privacy laws of any other country;
1.5) "EEA" means the European Economic Area;
1.6) "EU Data Protection Laws" means EU Directive 95/46/EC, as transposed into domestic legislation of each Member State and as amended, replaced or superseded from time to time, including by the GDPR and laws implementing or supplementing the GDPR;
1.7) "GDPR" means EU General Data Protection Regulation 2016/679;
1.8) "Data Transfer" means:
- 1.8.1) a transfer of Company Personal Data from Controller to the Processor or a Contracted Processor; or
- 1.8.2) an onward transfer of Company Personal Data from the Processor to a Subprocessor, or between two establishments of a Subprocessor;
1.9) "Services" means online secure services provided by the Processor, such as email, calendar, drive and other services as developed by the Processor. The details and pricing of the Services can be found on the Processor’s website.
1.10) "Subprocessor" means any person appointed by or on behalf of Processor to process Personal Data on behalf of Controller in connection with the Agreement.
The terms, "Commission", "Controller", "Data Subject", "Member State", "Personal Data", "Personal Data Breach", "Processing" and "Supervisory Authority" shall have the same meaning as in the GDPR or other applicable Data Protection Law, and their cognate terms shall be construed accordingly.
2. Processing of Company Personal Data
Processor shall:
2.1) comply with all applicable Data Protection Laws in the Processing of Company Personal Data;
2.2) and not process Company Personal Data other than on Controller’s documented instructions in section 2.
Controller instructs Processor to process Company Personal Data to:
2.3) provide the Services and related technical support;
2.4) fulfil legal obligations or resolve disputes;
2.5) exercise any internal task aimed to optimise the security, privacy, confidentiality and functionalities of the Services;
2.6) exercise internal reporting, financial reporting and other similar internal tasks.
3. Processor Personnel
Processor shall take reasonable steps to ensure the reliability of any employee, agent or contractor of any Contracted Processor who may have access to Company Personal Data, ensuring in each case that access is strictly limited to those individuals who need to know / access the relevant Company Personal Data, as strictly necessary for the purposes of the Principal Agreement, and/or to comply with Data Protection Laws and other relevant legislation in the context of that individual's duties to the Contracted Processor, ensuring that all such individuals are subject to confidentiality undertakings or professional or statutory obligations of confidentiality.
4. Security
In accordance with Article 32 (1) of the GDPR, the Processor shall implement appropriate technical and organizational measures to ensure a level of security appropriate to the risk, taking into account the state of the art, the costs of implementation, and the nature, scope, context, and purposes of processing. These measures shall be designed to protect the rights and freedoms of natural persons, considering the risks of varying likelihood and severity, including the risk of a Personal Data Breach.
The Processor shall also assess the risks associated with processing activities and apply measures that are consistent with the requirements set forth in Article 32 (1) GDPR, ensuring the security of Company Personal Data at all times.
5. Subprocessing
Subject to this Agreement, the Company grants general authorization to the Processor to engage Subprocessors and disclose or transfer Company Personal Data to them. The Company acknowledges and approves the list of Subprocessors outlined in the Processor’s Privacy Policy, understanding that this list may be updated by the Processor regularly, in which case the company shall be informed by the Processor according to the Privacy Policy notification process. Furthermore, the Company authorizes the Processor to disclose and transfer Personal Data to any company within its corporate group.
Processor ensures that Subprocessors are subject to an agreement with Processor no less restrictive and protective than the present Agreement with respect to the protection of Company Personal Data to the extent applicable to the nature of the services provided by the Subprocessor.
6. Data Subject Rights
Taking into account the nature of the processing, Processor shall reasonably assist Company for the fulfilment of Company’s obligations to respond to requests to exercise Data Subject rights under the Data Protection Laws.
Processor shall:
6.1) promptly notify Company if it receives a request from a Data Subject under any Data Protection Law in respect of Company Personal Data; and
6.2) ensure that it does not respond to that request except on the documented instructions of Controller or as required by Applicable Laws to which the Processor is subject, in which case Processor shall to the extent permitted by Applicable Laws inform Controller of that legal requirement before the Contracted Processor responds to the request.
7. Personal Data Breach
The Processor shall manage any Personal Data Breach in compliance with applicable Data Protection Laws and its internal Personal Data Breach procedures. In the event of a Personal Data Breach affecting company Personal Data, the Processor shall notify the Company without delay, providing sufficient information to enable the Company to fulfill its obligations under Data Protection Laws, including informing Data Subjects as necessary. In such cases, Processor shall provide Company with sufficient information to allow Company to meet any obligations to report or inform Data Subjects of the Personal Data Breach under the Data Protection Laws.
Processor shall co-operate with Company and take reasonable commercial steps as are directed by Company to assist in the investigation, mitigation and remediation of each such Personal Data Breach.
Each party shall bear the costs of the investigation, remediation, mitigation, and other related costs to the extent a Data Breach is caused by such party.
Each party shall bear the costs of any fines, penalties, damages, or other related amounts imposed by an authorized regulatory body, governmental agency, or court of competent jurisdiction to the extent arising from such party’s breach of its obligations under this Agreement.
8. Data Protection Impact Assessment and Prior Consultation
Processor shall provide reasonable assistance to Company with any data protection impact assessments, and prior consultations with Supervising Authorities or other competent data privacy authorities, which Controller reasonably considers to be required by article 35 or 36 of the GDPR or equivalent provisions of any other Data Protection Law, in each case solely in relation to Processing of Company Personal Data by, and taking into account the nature of the Processing and information available to, the Contracted Processors.
9. Deletion or return of Company Personal Data
In case of cessation of any Service involving the Processing of Company Personal Data, the Processor shall delete all Company Personal Data to the extent permitted by applicable laws and in accordance with Processor’s Terms and Conditions and Privacy Policy. Should the Company require a copy of their data, they must request it before the deletion of their account; requests made after the account has been deleted can no longer be considered.
10. Audit rights
Subject to this section 10, Processor shall make available to Company on request all information necessary to demonstrate compliance with this Agreement, and shall allow for and contribute to audits, including inspections, by Company or an auditor mandated by Company in relation to the Processing of the Company Personal Data by the Contracted Processors. Company shall not exercise its audit rights more than once per calendar year except following a Personal Data Breach or an instruction by a regulatory authority. Company shall give Processor at least sixty (60) days prior written notice of its intention to audit Processor pursuant to this Agreement. Audit shall be conducted during Processor’s business hours, shall not disrupt Processor’s operations and shall ensure the protection of the Company’s, Processor’s and other Data Subjects’ Personal Data. Processor and Company shall mutually agree in advance on the date, scope, duration and security and confidentiality controls applicable to the audit. Company acknowledges that the signing of a non-disclosure agreement may be required by the Controller prior to the conduction of the audit.
Information and audit rights of Company only arise under section 10 to the extent that the Agreement does not otherwise give them information and audit rights meeting the relevant requirements of Data Protection Law.
11. Data Transfer
To the extent possible, the Processor shall only transfer or authorize the transfer of Data to countries within Switzerland, the EU and/or countries subject to an adequacy decision, as provided for in art. 45 GDPR and art. 16 Swiss FADP. If Personal Data processed under this Agreement is transferred from Switzerland or any country within the EU or any country subject to an adequacy decision to a country outside of this scope, the Parties shall ensure that the Personal Data are adequately protected. To achieve this, the Parties shall, unless agreed otherwise, rely on Switzerland- and/or EU- and/or UK- approved and then-current standard contractual clauses for the transfer of Personal Data or other transfer mechanisms as provided for by Data Protection Laws. Processor shall be authorized to perform such transfers to Subprocessors provided that adequate safeguards are implemented with regards to the nature of the transfer.
12. General Terms
Compliance with Applicable Laws. Processor will process Company Personal Data in accordance with this Agreement and Data Protection Laws applicable to its role under this Agreement. Processor is not responsible nor liable for complying with Data Protection Laws solely applicable to Company by virtue of its business or industry.
Confidentiality. Each party must keep any information it receives about the other party and its business in connection with this Agreement (“Confidential Information”) confidential and must not use or disclose that Confidential Information without the prior written consent of the other party except to the extent that:
(a) disclosure is required by law;
(b) the relevant information is already in the public domain through no fault of the Parties.
Notices. All notices and communications given under this Agreement must be in writing and will be sent by email. Controller shall be notified by email sent to the address related to its use of the Services under the Principal Agreement. Processor shall be notified by email sent to the address: legal@proton.me.
Governing Law and Jurisdiction. This Agreement shall be governed by Swiss law, without regard to the choice or conflicts of law provisions of any jurisdiction to the contrary, and disputed, actions, claims or causes of action arising out of or in connection with this Agreement, an order form, any document incorporated by reference, Proton technology, or the Services shall be subject to the exclusive jurisdiction of Geneva, Switzerland.