Data Processing Agreement
This Data Processing Agreement ("Agreement") forms part of the Contract for Services under the ProtonMail Terms and Conditions (the "Principal Agreement"). This Agreement is an amendment to the Principal Agreement and is effective upon its incorporation to the Principal Agreement, which incorporation may be specified in the Principal Agreement or an executed amendment to the Principal Agreement. Upon its incorporation into the Principal Agreement, this Agreement will form a part of the Principal Agreement.
We periodically update this Agreement. If you have an active ProtonMail account, you will be informed of any modification by email. At the bottom of this page you can find archived versions of our DPA.
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.
(A) Your company act as a Data Controller (the "Controller").
(B) Your company wishes to subcontract certain Services (as defined below), which imply the processing of personal data, to Proton Technologies 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).
(D) The Parties wish to lay down their rights and obligations.
IT IS AGREED AS FOLLOWS:
- 1.Definitions and Interpretation
- 1.1Unless otherwise defined herein, capitalized terms and expressions used in this DPA shall have the following meaning:
- 1.1.2"Company Personal Data" means any Personal Data Processed by a Contracted Processor on Controller's behalf pursuant to or in connection with the Principal Agreement;
- 1.1.3"Contracted Processor" means a Subprocessor;
- 1.1.4"Data Protection Laws" means EU Data Protection Laws and, to the extent applicable, the data protection or privacy laws of any other country;
- 1.1.5"EEA" means the European Economic Area;
- 1.1.6EU 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means EU Directive 95/46/EC, as transposed into domestic legislation of each Member State and as amended, replaced or superseded from time to time, including by the GDPR and laws implementing or supplementing the GDPR;
- 1.1.7"GDPR" means EU General Data Protection Regulation 2016/679;
- 1.1.8"Data Transfer" means:
- 18.104.22.168a transfer of Company Personal Data from Controller to a Contracted Processor; or
- 22.214.171.124an onward transfer of Company Personal Data from a Contracted Processor to a Subcontracted Processor, or between two establishments of a Contracted Processor,
- in each case, where such transfer would be prohibited by Data Protection Laws (or by the terms of data transfer agreements put in place to address the data transfer restrictions of Data Protection Laws);
- 1.1.9"Services" means end-to-end encrypted email services. The Service is described more in detail in Schedule 1.
- 1.1.10"Subprocessor" means any person appointed by or on behalf of Processor to process Personal Data on behalf of Controller in connection with the Agreement.
- 1.2The 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, and their cognate terms shall be construed accordingly.
- 2.Processing of Company Personal Data
- 2.1Processor shall:
- 2.1.1comply with all applicable Data Protection Laws in the Processing of Company Personal Data; and
- 2.1.2not process Company Personal Data other than on Controller's documented instructions.
- 2.2Controller instructs Processor to process Company Personal Data to provide the Services and related technical support.
- 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 to comply with Applicable Laws 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.
- 4.1Taking into account the state of the art, the costs of implementation and the nature, scope, context and purposes of Processing as well as the risk of varying likelihood and severity for the rights and freedoms of natural persons, Processor shall in relation to the Company Personal Data implement appropriate technical and organizational measures to ensure a level of security appropriate to that risk, including, as appropriate, the measures referred to in Article 32(1) of the GDPR.
- 4.2In assessing the appropriate level of security, Processor shall take account in particular of the risks that are presented by Processing, in particular from a Personal Data Breach.
- 5.1Processor shall not appoint (or disclose any Company Personal Data to) any Subprocessor unless required or authorized by Controller.
- 6.Data Subject Rights
- 6.1Taking into account the nature of the Processing, Processor shall assist Controller by implementing appropriate technical and organisational measures, insofar as this is possible, for the fulfilment of Controller obligations, as reasonably understood by Controller, to respond to requests to exercise Data Subject rights under the Data Protection Laws.
- 6.2Processor shall:
- 6.2.1promptly notify Controller if it receives a request from a Data Subject under any Data Protection Law in respect of Company Personal Data; and
- 6.2.2ensure 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
- 7.1Processor shall notify Controller without undue delay upon Processor becoming aware of a Personal Data Breach affecting Company Personal Data, providing Controller with sufficient information to allow Controller to meet any obligations to report or inform Data Subjects of the Personal Data Breach under the Data Protection Laws.
- 7.2Processor shall co-operate with Controller and take reasonable commercial steps as are directed by Controller to assist in the investigation, mitigation and remediation of each such Personal Data Breach.
- 8.Data Protection Impact Assessment and Prior Consultation
- 8.1Processor shall provide reasonable assistance to Controller 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
- 9.1Subject to this section 9 Processor shall promptly and in any event within 10 business days of the date of cessation of any Services involving the Processing of Company Personal Data (the "Cessation Date"), delete and procure the deletion of all copies of those Company Personal Data.
- 9.2Processor shall provide written certification to Controller that it has fully complied with this section 9 within 10 business days of the Cessation Date.
- 10.Audit rights
- 10.1Subject to this section 10, Processor shall make available to Controller on request all information necessary to demonstrate compliance with this Agreement, and shall allow for and contribute to audits, including inspections, by Controller or an auditor mandated by Controller in relation to the Processing of the Company Personal Data by the Contracted Processors.
- 10.2Information and audit rights of Controller only arise under section 10.1 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
- 11.1The Processor may not transfer or authorize the transfer of Data to countries outside the EU and/or the European Economic Area (EEA) without the prior written consent of Controller. If personal data processed under this Agreement is transferred from a country within the European Economic Area to a country outside the European Economic Area, the Parties shall ensure that the personal data are adequately protected. To achieve this, the Parties shall, unless agreed otherwise, rely on EU approved standard contractual clauses for the transfer of personal data.
- 12General Terms
- 12.1Confidentiality. 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.
- 12.2Notices. 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 Service under the Principal Agreement. Processor shall be notified by email sent to the address: .
- 13.Governing Law and Jurisdiction
- 13.1This Agreement is governed by Swiss law.
- 13.2Any dispute arising in connection with this Agreement, which the Parties will not be able to resolve amicably, will be submitted to the exclusive jurisdiction of the courts of Geneva, subject to possible appeal to the Swiss Federal Supreme Court in Lausanne.
Schedule 1: Service Description and Pricing
The Service offered by Proton Technologies AG is ProtonMail ("ProtonMail").
ProtonMail offers cutting edge email security and privacy with an easy to use interface that is used by millions of individuals and enterprises around the world. ProtonMail provides a complete platform that includes both server-side software and client-side applications for Web and Mobile (iOS and Android). ProtonMail is cross platform and can be used on all devices without needing software downloads or updates, allowing authorised users access to their email anywhere in the world, on any device.
ProtonMail is the world's first email system that integrates zero knowledge data protection with cross platform capabilities. By utilizing end-to-end encryption, our zero knowledge architecture means sensitive data cannot be intercepted en-route or accessed on the server without explicit permission. The ProtonMail software does not have access to raw message data giving individuals and organizations complete control over their email communications and ensuring the highest level of confidentiality.
ProtonMail Free provides the ability to easily send and receive end-to end encrypted email for everyone. This includes full access to all of the ProtonMail web and mobile clients.
ProtonMail Plus and Visionary accounts add to the Free basic plan by adding additional storage and unlocking encrypted email on users custom domains. Additional features include additional email addresses within a users account, higher sending limits, and access to premium features such as encrypted contact details. These plans range from €48 per year for Plus to €288 for Visionary users, which also includes 5 additional sub users in addition to the account owner.
ProtonMail Professional unlocks ProtonMail end to end encryption for use by organizations around the world. This plan allows organizations to add unlimited number of users under their organization's domain at a cost of €75 per year per user. Included in the Professional plan is the auto-responder, catch-all, and 5GB of storage for each of their users.
Schedule 2: Data Processing and Security
- 1.Description of the data processing carried out on behalf of the Controller
In addition to the information provided elsewhere in the Agreement, the Parties wish to document the following information in relation to the data processing activities.