This Data Processing Addendum (“DPA“) is incorporated into and forms a part of the agreement between MojiLaLa Inc. (“MojiLaLa“) and Customer that governs Customer’s access to and use of the AR social media application. (“Agreement“). Capitalized terms not defined herein have the meaning given in the Agreement.
1. Definitions. In this DPA, the following terms (and derivations thereof) have the meanings set out below:
- “Controller” means the individual or entity that determines the purposes and means of the Processing of Personal Data.
“Customer” means the individual or entity that has entered into the Agreement and agreed to the incorporation of this DPA into the Agreement.
“Customer Content” means any data, files, additional, text, images, reports, personal information or other content uploaded or sent to the augmented reality social media application by the Customer or Users and Processed by MojiLaLa on behalf of the Customer.
“Customer Personal Data” means Personal Data that is contained within Customer Content.
“Data Breach” means a breach of security resulting in the accidental or unlawful destruction, loss, alteration, unauthorized disclosure of, or access to Customer Content.
“Data Protection Laws” means, to the extent applicable to a Party, the data protection or privacy laws of any country regarding the Processing of Customer Personal Data.
“Data Subject” means an identified or identifiable natural person.
“Parties” or “Party” means Customer and/or MojiLaLa as applicable.
“Personal Data” means any information relating to, identifying, describing, or capable of being associated with a Data Subject or a household.
“Process” means any operation or set of operations performed upon Personal Data, whether or not by automated means, such as collection, recording, organization, structuring, storage, adaptation, alteration, retrieval, consultation, use, alignment, combination, restriction, erasure, destruction or disclosure by transmission, dissemination or otherwise making available.
“Processor” means the individual or entity that Processes Personal Data on behalf of a Controller.
Professional Services” means implementation, configuration, integration, training, advisory, and other professional services related to the online Services that are provided by MojiLaLa and purchased by Customer specified in an Order.
“Services” means the any other online service or application provided or controlled by MojiLaLa for use with the Subscription Services.
“MojiLaLa Personnel” means any individual authorized by MojiLaLa to Process Customer Personal Data.
“Subprocessor” means any individual or entity (including any third party but excluding MojiLaLa Personnel) appointed by or on behalf of MojiLaLa to Process Customer Personal Data in connection with the Agreement.
“Subscription Services” means the subscription-based online work collaboration services and applications that are provided by MojiLaLa and purchased by Customer.
“Supervisory Authority” means an independent competent public authority established or recognized under Data Protection Laws.
“User” means any person authorized or invited by the Customer or another User to access and use the social media application under the terms of the Agreement.
2. Roles of Parties.
2.1. Customer and MojiLaLa agree that, as between the Parties, MojiLaLa is a Processor of Customer and User’s Personal Data, and that each Party is solely responsible for its compliance with Data Protection Laws applicable to it and for fulfilling any of its related obligations to third parties, including Data Subjects and Supervisory Authorities.
2.2. Customer as Controller.
- 2.2.1. Customer is solely responsible for the accuracy of Customer Personal Data and the legality of the means by which Customer acquires Customer Personal Data.
2.2.2. Customer’s instructions to MojiLaLa to Process Customer Personal Data will comply with Data Protection Laws and be duly authorized, with all necessary rights, permissions, and consents secured.
2.2.3. Customer’s, are responsible for User’s personal data who invited by themselves. MojiLaLa is just a Processor of this.
2.3 MojiLaLa as Processor.
- 2.3.1. MojiLaLa will Process Customer Personal Data only: (a) as instructed by Customer in writing or as initiated by Users via an online Service; (b) as necessary to provide the Services and prevent or address technical problems with an online Service or violations of the Agreement or this DPA; or (c) as required by applicable law. Annex 1 (Details of Processing of Customer Personal Data) sets out a description of MojiLaLa’s Processing of Customer Personal Data.
2.3.2. MojiLaLa will ensure that MojiLaLa Personnel: (a) access Customer Personal Data only to the extent necessary to perform MojiLaLa’s Processing obligations under this DPA and the Agreement; (b) are bound by confidentiality obligations with respect to Customer Personal Data substantially as protective as those set forth in this DPA and the Agreement; and (c) are subject to appropriate training relating to the Processing of Customer Personal Data.
2.3.3. MojiLaLa will not disclose Customer Personal Data to a third party for monetary or other consideration except as otherwise permitted under this DPA or the Agreement.
2.3.4. At Customer’s written request and to the extent Customer is unable to access the relevant information on its own, MojiLaLa will provide reasonable assistance to Customer in relation to data protection impact assessments and consultations with Supervisory Authorities, taking into account the nature of MojiLaLa’s Processing of Customer Personal Data and the information available to MojiLaLa.
2.3.5. MojiLaLa will not assess the type or substance of Customer Content to identify whether it is Customer Personal Data or subject to any specific legal requirements.
3.1. MojiLaLa will implement and maintain technical, physical, and organizational measures and controls designed to protect and secure Customer Content (including the return and deletion thereof) in accordance with the Agreement.
3.2. Customer acknowledges that, through its Users, Customer: (a) controls the type and substance of Customer Content; and (b) sets User permissions to access Customer Content; and therefore, Customer is responsible for reviewing and evaluating whether the documented functionality of an online Service meets Customer’s required security obligations relating to Customer Personal Data under Data Protection Laws.
5. Data Subject Requests.
5.1. MojiLaLa will provide Customer access to Customer Personal Data via the online Services to allow Customer to respond to Data Subject requests relating to Customer Personal Data.
5.2. MojiLaLa will notify Customer in writing without undue delay of any requests MojiLaLa receives directly from a Data Subject relating to Customer Personal Data, and MojiLaLa may respond directly to a Data Subject request: (a) to confirm that such request relates to Customer; (b) as required by applicable law; or (c) with the written consent of Customer.
5.3. At Customer’s written request and to the extent Customer is unable to access Customer Personal Data on its own, MojiLaLa will provide reasonable assistance to Customer in accessing Customer Personal Data for Customer to respond to such Data Subject requests. To the extent legally permitted, Customer will be responsible for any expenses attributable to MojiLaLa’s assistance efforts outside the normal course of business.
6. Data Breach.
6.1. MojiLaLa will notify Customer in writing without undue delay upon MojiLaLa becoming aware of a Data Breach.
6.2. MojiLaLa will investigate and, as necessary, mitigate or remediate a Data Breach in accordance with MojiLaLa’s security incident policies and procedures (“Breach Management”).
6.3. Subject to MojiLaLa’s legal obligations, MojiLaLa will provide Customer with information available to MojiLaLa as a result of its Breach Management, including the nature of the incident, specific information disclosed (if known), and any relevant mitigation efforts or remediation measures (“Breach Information”), for Customer to comply with its obligations under Data Protection Laws as a result of a Data Breach.
6.4. If Customer requires information relating to a Data Breach in addition to the Breach Information, at Customer’s sole expense and written request and to the extent Customer is unable to access the additional information on its own, MojiLaLa will reasonably cooperate with Customer as requested by Customer to attempt to collect and provide such additional information.
7. Audit Rights.
7.1. MojiLaLa will use external auditors to annually audit and verify the adequacy of its security measures and controls (“Audit”). The Audit will be performed by independent third party security professionals at MojiLaLa’s selection and expense;
7.2. If Customer requires information for its compliance with Data Protection Laws in addition to the Reports, at Customer’s sole expense and written request and to the extent Customer is unable to access the additional information on its own, MojiLaLa will allow for and cooperate with a Customer mandated audit by a third party auditor in relation to the MojiLaLa’s Processing of Customer Personal Data (“Customer Audit”), provided that:
- 7.2.1. Customer provides MojiLaLa reasonable advance notice including the identity of the auditor and the anticipated date and scope of the Customer Audit;
- 7.2.2. MojiLaLa approves the auditor by notice to Customer, with such approval not to be unreasonably withheld;
- 7.2.3. Customer and the auditor act to avoid causing any damage, injury, or disruption to MojiLaLa’s premises, equipment, or business in the course of such Customer Audit; and
- 7.2.4. Customer initiates only one Customer Audit in any calendar year unless otherwise required by a Supervisory Authority.
8.1. Amendment; Waiver. Unless otherwise expressly stated herein, this DPA may be modified only by a written agreement executed by an authorized representative of each Party. The waiver of any breach of this DPA will be effective only if in writing, and no such waiver will operate or be construed as a waiver of any subsequent breach.
8.2. Severance. If any provision of this DPA is held to be unenforceable, then that provision is to be construed either by modifying it to the minimum extent necessary to make it enforceable (if permitted by law) or disregarding it (if not permitted by law), and the rest of this DPA is to remain in effect as written. Notwithstanding the foregoing, if modifying or disregarding the unenforceable provision would result in failure of an essential purpose of this DPA, the entire DPA will be considered null and void.
8.3. Order of Precedence. Regarding the subject matter of this DPA, in the event of any conflict between this DPA and any other written agreement between the Parties (including the Agreement), this DPA will govern and control. Any data processing agreements that may already exist between Parties are superseded and replaced by this DPA in their entirety.
8.4. Notices. Unless otherwise expressly stated herein, the parties will provide notices under this DPA in accordance with the Agreement, provided that all such notices may be sent via email.
8.5. Governing Law and Jurisdiction. Unless prohibited by Data Protection Laws, this DPA is governed by the laws stipulated in the Agreement and the Parties to this DPA hereby submit to the choice of jurisdiction and venue stipulated in the Agreement, if any, with respect to any dispute arising under this DPA.
8.6. Enforcement. Regardless of whether Customer or its affiliate(s) or a third-party is a Controller of Customer Personal Data, unless otherwise required by law: (a) only Customer will have any right to enforce any of the terms of this DPA against MojiLaLa; and (b) MojiLaLa’s obligations under this DPA, including any applicable notifications, will be to only Customer.
8.7. Liability. As between the Parties to this DPA, each Party’s liability and remedies under this DPA are subject to the aggregate liability limitations and damages exclusions set forth in the Agreement.
8.8. Variations in Data Protection Laws. If any variation is required to this DPA as a result of a change in or subsequently applicable Data Protection Law, then either Party may provide written notice to the other Party of that change in law. The Parties will then discuss and negotiate in good faith any variations to this DPA necessary to address such changes, with a view to agreeing and implementing those or alternative variations as soon as practicable, provided that such variations are reasonable with regard to the functionality and performance of the Services and MojiLaLa’s business operations.
8.9. Reservation of Rights. Notwithstanding anything to the contrary in this DPA: (a) MojiLaLa reserves the right to withhold information the disclosure of which would pose a security risk to MmojiLaLa or its customers or is prohibited by applicable law or contractual obligation; and (b) MojiLaLa’s notifications, responses, or provision of information or cooperation under this DPA are not an acknowledgement by MojiLaLa of any fault or liability.
8.10. MojiLaLa as Controller. MojiLaLa may collect Personal Data directly from Data Subjects (which may be duplicative of Customer Personal Data) in accordance with MojiLaLa’s internal policies and publicly posted Privacy Notice available at https://creator.mojilala.com/privacy/ , and nothing in this DPA will prohibit MojiLaLa from Processing such Personal Data as a Controller under Data Protection Laws, provided that MojiLaLa conspicuously notifies such Data Subjects that such information will be handled in accordance with MojiLaLa’s Privacy Notice.
ANNEX 1: DETAILS OF PROCESSING OF CUSTOMER PERSONAL DATA
This Annex 1 includes certain details of the Processing of Personal Data as required by Article 28(3) of the GDPR.
Subject matter and duration of the Processing of Personal Data:
- The subject matter and duration of the Processing of Personal Data are set out in the Agreement and this DPA.
The nature and purpose of the Processing of Personal Data
- Processing of Personal Data by MojiLaLa is reasonably required to facilitate or support the provision of the Services as described under the Agreement and this DPA.
Type of Personal Data and Categories of Data Subjects:
- The types of Personal Data and categories of Data Subject about whom the Personal Data relates are determined and controlled by Customer in its sole discretion.
Obligations and Rights of the Controller:
- The obligations and rights of Customer are set out in the Agreement and this DPA.