Data Processing Addendum

This Addendum forms a part of the services agreement, terms of use or other similar agreement (the “Agreement”) entered between Customer and its subsidiaries  (collectively,  “Customer”,  or “Data Controller”), and IORiver Ltd. (“IORiver”,  “Service Provider”or “Data Processor”). Both parties shall be referred to as the “Parties”and each, a “Party”.

‍WHEREAS,      IORiver shall provide the services set forth in theAgreement (collectively, the “Services”) for Customer, as described in the Agreement; and WHEREAS,     In the course of providing the Services pursuant to the Agreement, IORiver may process Personal Data on your behalf, in the capacity of a “Data Processor”; and the Parties wish to set forth the arrangements concerning the processing of Personal Data (defined below) within the context of the Services and agree to comply with the following provisions with respect to any Personal Data, each acting reasonably and in good faith.

NOW THEREFORE, in consideration of the mutual promises set forth herein and other good and valuable consideration, the receipt and sufficiency of which are hereby acknowledged by the Parties, the parties, intending to be legally bound, agree as follows:

1. INTERPRETATION AND DEFINITIONS

1.1 The headings contained in this DPA are for convenience only and shall not be interpreted to limit or otherwise affect the provisions of this DPA. References to clauses or sections are references to the clauses or sections of this DPA unless otherwise stated. Words used in the singular include the plural and vice versa, as the context may require. Capitalized terms not defined herein shall have the meanings assigned to such terms in the Agreement. Definitions:

(a) “Affiliate” means any entity that directly or indirectly controls, is controlled by, or is under common control with the subject entity. “Control”, for purposes of this definition, means direct or indirect ownership or control of more than 50% of the voting interests of the subject entity.
(b) “Authorized Affiliate” means any of Customer’s Affiliate(s) which (a) is subject to the Data Protection Laws And Regulations of the European Union, the European Economic Area and/or their member states, Switzerland and/or the United Kingdom, and (b) is permitted to use the Services pursuant to the Agreement between Customer and IORiver, but has not signed its own agreement with IORiver and is not a “Customer” as defined under the Agreement.
(c) “Controller” or “Data Controller” means the entity which determines the purposes and means of the Processing of Personal Data. For the purposes of this DPA only, and except where indicated otherwise, the term “Data Controller” shall include the Customer and/or the Customer’s Authorized Affiliates.
(d) “Data Protection Laws and Regulations” means all laws and regulations of the European Union, the European Economic Area and their Member States, the United Kingdom, and the Israeli Privacy Protection Law, 1981 and the regulations promulgated thereunder (including Privacy Protection Regulations (Transfer of Data to Databases Abroad), 5761-2001 and Privacy Protection Regulations (Data Security), 5777-2017), and any binding instructions, guidelines and requirements of the Israeli Privacy Protection Authority, as applicable to the Processing of Personal Data under the Agreement.
(e) “Data Subject” means the identified or identifiable person to whom the Personal Data relates.
(f) "EU-US Data Privacy Framework" means the adequacy decision emitted by the European Commission on July 10, 2023, on the adequate level of protection of personal data to self-certified US companies under the EU-US Data Privacy Framework.
(g) “Member State” means a country that belongs to the European Union and/or the European Economic Area. “Union” means the European Union.
(h) “GDPR” means 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).(i) “Personal Data” or “Personal Information” means any information relating to an identified or identifiable natural person; an identifiable natural person is one who can be identified, directly or indirectly, in particular by reference to an identifier such as a name, an identification number, location data, an online identifier or to one or more factors specific to the physical, physiological, genetic, mental, economic, cultural or social identity of that natural person, as defined under Data Protection Laws and Regulations. For the avoidance of doubt, Customer's business contact information is not by itself deemed to be Personal Data subject to this DPA.
(j) “Process(ing)” means any operation or set of operations which is performed upon Personal Data, whether or not by automatic means, such as collection, recording, Customer, structuring, storage, adaptation or alteration, retrieval, consultation, use, disclosure by transmission, dissemination or otherwise making available, alignment or combination, restriction, erasure or destruction.
(k) “Processor” or “Data Processor” means the entity which Processes Personal Data on behalf of the Controller.
(l) “Security Documentation” means the Security Documentation applicable to the specific Services purchased by Customer, as updated from time to time. Customer shall send a request to security@ioriver.io to receive a copy of the Security Documentation.
(m) “Standard Contractual Clauses” or “SCCs” means (i) the standard contractual clauses for the transfer of Personal Data to Data processors established in third countries which do not ensure an adequate level of protection as set out in Regulation (EU) 2016/679 of the European Parliament and of the Council from June 4, 2021, as available here, as updated, amended, replaced or superseded from time to time by the European Commission; or (ii) where required from time to time by a supervisory authority for use with respect to any specific restricted transfer, any other set of contractual clauses or other similar mechanism approved by such Supervisory Authority or by Applicable Laws for use in respect of such Restricted Transfer, as updated, amended, replaced or superseded from time to time by such Regulatory Authority or Data Protection Laws and Regulations;
(n) “Sub-processor” means any Processor engaged by IORiver and/or IORiver Affiliate to Process Personal Data on behalf of Customer.
(o) “Supervisory Authority” means an independent public authority which is established by an EU Member State pursuant to the GDPR.

2. PROCESSING OF PERSONAL DATA

• The Parties acknowledge and agree that with regard to the Processing of Personal Data under this DPA IORiver is the Data Processor and IORiver may engage Sub-processors pursuant to the requirements set forth in Section ‎5 “Sub-processors” below. For clarity, this DPA shall not apply with respect to IORiver processing activity as a Data Controller with respect to IORiver data as detailed in IORiver’s privacy policy.
• Customer shall, in its use of the Services, Process Personal Data in accordance with the requirements of Data Protection Laws and Regulations and comply at all times with the obligations applicable to data controllers (including, without limitation, Article 24 of the GDPR).  For the avoidance of doubt, Customer’s instructions for the Processing of Personal Data shall comply with Data Protection Laws and Regulations. Customer shall have sole responsibility for the means by which Customer acquired Personal Data. Without limitation, Customer shall comply with any and all transparency-related obligations (including, without limitation, displaying any and all relevant and required privacy notices or policies) and shall at all times have any and all required ongoing legal bases in order to collect, Process and transfer to IORiver the Personal Data and to authorize the Processing by IORiver of the Personal Data which is authorized in this DPA. Customer shall defend, hold harmless and indemnify IORiver, its Affiliates and subsidiaries (including without limitation their directors, officers, agents, subcontractors and/or employees) from and against any liability of any kind related to any breach, violation or infringement by Customer and/or its authorized users of any Data Protection Laws and Regulations and/or this DPA and/or this Section.
• IORiver’s Processing of Personal Data.
• • Subject to the Agreement, IORiver shall Process Personal Data that is subject to this DPA only in accordance with Customer’s documented instructions as necessary for the performance of the Services and for the performance of the Agreement and this DPA, unless required to otherwise by Union or Member State law or any other applicable law to which IORiver and its Affiliates are subject, in which case, IORiver shall inform the Customer of the legal requirement before processing, unless that law prohibits such information on important grounds of public interest. The duration of the Processing, the nature and purposes of the Processing, as well as the types of Personal Data Processed and categories of Data Subjects under this DPA are further specified in Schedule 1 (Details of the Processing) to this DPA.
  • To the extent that IORiver or its Affiliates cannot comply with a request (including, without limitation, any instruction, direction, code of conduct, certification, or change of any kind) from Customer and/or its authorized users relating to Processing of Personal Data or where IORiver considers such a request to be unlawful, IORiver (i) shall inform Customer, providing relevant details of the problem (but not legal advice), (ii) IORiver may, without any kind of liability towards Customer, temporarily cease all Processing of the affected Personal Data (other than securely storing those data), and (iii) if the Parties do not agree on a resolution to the issue in question and the costs thereof, each Party may, as its sole remedy, terminate the Agreement and this DPA with respect to the affected Processing, and Customer shall pay to IORiver all the amounts owed to IORiver or due before the date of termination. Customer will have no further claims against IORiver (including, without limitation, requesting refunds for Services) due to the termination of the Agreement and/or the DPA in the situation described in this paragraph (excluding the obligations relating to the termination of this DPA set forth below).
  • IORiver will not be liable in the event of any claim brought by a third party, including, without limitation, a Data Subject, arising from any act or omission of IORiver, to the extent that such is a result of Customer’s instructions.

3. RIGHTS OF DATA SUBJECTS

If IORiver receives a request from a Data Subject to exercise its rights as laid down in Chapter III of the GDPR (“Data Subject Request”), IORiver shall, to the extent legally permitted, promptly notify and forward such Data Subject Request to Customer. Taking into account the nature of the Processing, IORiver shall use commercially reasonable efforts to assist Customer by appropriate technical and organizational measures, insofar as this is possible, for the fulfilment of Customer’s obligation to respond to a Data Subject Request under Data Protection Laws and Regulations. To the extent legally permitted, Customer shall be responsible for any costs arising from IORiver’s provision of such assistance.

4. IORiver PERSONNEL

1. IORiver shall grant access to the Personal Data to persons under its authority (including, without limitation, its personnel) only on a need to know basis and ensure that such persons engaged in the Processing of Personal Data have committed themselves to confidentiality or are under an appropriate statutory obligation of confidentiality.
2. IORiver may disclose and Process the Personal Data (a) as permitted hereunder (b) to the extent required by a court of competent jurisdiction or other Supervisory Authority and/or otherwise as required by applicable laws or applicable Data Protection Laws and Regulations (in such a case, IORiver shall inform the Customer of the legal requirement before the disclosure, unless that law prohibits such information on important grounds of public interest), or (c) on a “need-to-know” basis under an obligation of confidentiality to legal counsel(s), data protection advisor(s), accountant(s), investors or potential acquirers.

5. AUTHORIZATION REGARDING SUB-PROCESSORS

1. IORiver’s current list of Sub-processors is included in Schedule 2 (“Sub-processor List”) and is hereby approved by Data Controller. Customer hereby grants a general authorization to IORiver to appoint new Sub-processors, and IORiver shall comply with the conditions of Section ‎5.2, to ‎5.4.
2. Customer may find send an email to security@ioriver.io with the subject SUBSCRIPTION TO SUB-PROCESSORS NOTIFICATION, to subscribe to notifications of new Sub-processors, and if Customer subscribes, IORiver shall provide notification of any new Sub-processor(s).
3. Customer may reasonably object to IORiver’s use of a Sub-processor for reasons related to the GDPR by notifying IORiver promptly in writing within three (3) business days after receipt of IORiver’s notice in accordance with the mechanism set out in Section ‎5.2 and such written objection shall include the reasons related to the GDPR for objecting to IORiver’s use of such Sub-processor. Failure to object to such Sub-processor in writing within three (3) business days following IORiver’s notice shall be deemed as acceptance of the Sub-Processor. In the event Customer reasonably objects to a Sub-processor, as permitted in the preceding sentences, IORiver will use reasonable efforts to make available to Customer a change in the Services or recommend a commercially reasonable change to Customer’s use of the Services to avoid Processing of Personal Data by the objected-to Sub-processor without unreasonably burdening the Customer. If IORiver is unable to make available such change within a reasonable period of time, which shall not exceed thirty (30) days, Customer may, as a sole remedy, terminate the applicable Agreement and this DPA with respect only to those Services which cannot be provided by IORiver without the use of the objected-to Sub-processor by providing written notice to IORiver provided that all amounts due under the Agreement before the termination date with respect to the Processing at issue shall be duly paid to IORiver. Until a decision is made regarding the Sub-processor, IORiver may temporarily suspend the Processing of the affected Personal Data. Customer will have no further claims against IORiver due to the termination of the Agreement (including, without limitation, requesting refunds) and/or the DPA in the situation described in this paragraph.
4. This Section ‎5 shall not apply to subcontractors of IORiver which provide ancillary services to support the performance of the DPA. This includes, for example, telecommunication services, maintenance and user service, cleaning staff, or auditors.

6. SECURITY

1. Taking into account the state of the art, the costs of implementation, the scope, the context, the purposes of the Processing as well as the risk of varying likelihood and severity for the rights and freedoms of natural persons, IORiver shall maintain all industry-standard technical and administrative measures required pursuant to Article 32 of the GDPR for protection of the security (including protection against unauthorized or unlawful Processing and against accidental or unlawful destruction, loss or alteration or damage, unauthorized disclosure of, or access to, Personal Data), confidentiality and integrity of Personal Data, as set forth in the Security Documentation which are hereby approved by Customer. Upon the Customer’s request, IORiver will use commercially reasonable efforts to assist Customer, at Customer’s cost, in ensuring compliance with the obligations pursuant to Articles 32 to 36 of the GDPR taking into account the nature of the processing, the state of the art, and the information available to IORiver
2. Upon Customer’s written request at reasonable intervals, and subject to the confidentiality obligations set forth in the Agreement and this DPA, IORiver shall make available to Customer that is not a competitor of IORiver (or Customer’s independent, third-party auditor that is not a competitor of IORiver) a copy or a summary of IORiver’s then most recent third-party audits or certifications, as applicable (provided, however, that such audits, certifications and the results therefrom, including the documents reflecting the outcome of the audit and/or the certifications, shall only be used by Customer to assess compliance with this DPA, and shall not be used for any other purpose or disclosed to any third party without IORiver’s prior written approval and, upon IORiver’s first request, Customer shall return all records or documentation in Customer’s possession or control provided by IORiver in the context of the audit and/or the certification). At Customer’s cost and expense, IORiver shall allow for and contribute to audits, including inspections of IORiver’s, conducted by the controller or another auditor mandated by the controller (who is not a direct or indirect competitor of IORiver) provided that the parties shall agree on the scope, methodology, timing and conditions of such audits and inspections. Notwithstanding anything to the contrary, such audits and/or inspections shall not contain any information, including without limitation, personal data that does not belong to Customer.

7. PERSONAL DATA INCIDENT MANAGEMENT AND NOTIFICATION.

IORiver shall notify Customer without undue delay after becoming aware of the accidental or unlawful destruction, loss, alteration, unauthorized disclosure of, or access to Personal Data, including Personal Data, transmitted, stored or otherwise Processed by IORiver of which IORiver becomes aware (a “Personal Data Incident”). IORiver shall make reasonable efforts to identify the cause of such Personal Data Incident and take those steps as IORiver deems necessary, possible and reasonable in order to remediate the cause of such a Personal Data Incident to the extent the remediation is within IORiver’s reasonable control. In any event, Customer will be the party responsible for notifying supervisory authorities and/or concerned data subjects (where required by Data Protection Laws and Regulations).

8. RETURN AND DELETION OF PERSONAL DATA

Subject to the Agreement, IORiver shall, at the choice of Customer, delete or return the Personal Data to Customer after the end of the provision of the Services relating to Processing, and shall delete existing copies unless applicable law requires storage of the Personal Data. In any event, to the extent required or allowed by applicable law, IORiver may retain one copy of the Personal Data for evidence purposes and/or for the establishment, exercise or defence of legal claims and/or to comply with applicable laws and regulations. If the Customer requests the Personal Data to be returned, the Personal Data shall be returned in the format generally available for IORiver’s Customers.

9. AUTHORIZED AFFILIATES

1. The Parties acknowledge and agree that, by executing the DPA, the Customer enters into the DPA on behalf of itself and, as applicable, in the name and on behalf of its Authorized Affiliates, thereby establishing a separate DPA between IORiver. Each Authorized Affiliate agrees to be bound by the obligations under this DPA. All access to and use of the Services by Authorized Affiliates must comply with the terms and conditions of the Agreement and this DPA and any violation of the terms and conditions therein by an Authorized Affiliate shall be deemed a violation by Customer.
2. The Customer shall remain responsible for coordinating all communication with IORiver under the Agreement and this DPA and shall be entitled to make and receive any communication in relation to this DPA on behalf of its Authorized Affiliates.

10. TRANSFERS OF DATA

1. Personal Data may betransferred from the EU Member States, the three EEA member countries (Norway,Liechtenstein and Iceland) (collectively, “EEA”), the United Kingdom tocountries that offer adequate level of data protection under or pursuant to theadequacy decisions published by the relevant data protection authorities of theEEA, the Union, the Member States or the European Commission, the UKsupervisory authority (“Adequacy Decisions”), without any furthersafeguard being necessary.
2. Personal Data may alsobe transferred to the United States of America to companies that self-certifyunder the EU-US Data Privacy Framework, without any further safeguard beingnecessary.
3. To the extent that there is Processing of Personal Data which includes transfers from the EEA, the UK to countries which do not offer adequate level of data protection or which have not been subject to an Adequacy Decision (“Other Countries”), the below terms shall apply:
4. • (a) With respect to the EU transfers of Personal Data, Customer as a Data Exporter (as defined in the SCCs) and IORiver on behalf of itself and each IORiver Affiliate (as applicable) as a Data Importer (as defined in the SCCs) hereby enter into the SCC set out in Schedule 3. To the extent that there is any conflict or inconsistency between the terms of the SCC and the terms of this DPA, the terms of the SCC shall take precedence.

11. TERMINATION

This DPA shall automatically terminate upon the termination or expiration of the Agreement under which the Services are provided. Sections ‎2.2, ‎2.3.3, ‎8 and ‎13 shall survive the termination or expiration of this DPA for any reason. This DPA cannot, in principle, be terminated separately to the Agreement, except where the Processing ends before the termination of the Agreement, in which case, this DPA shall automatically terminate.

12. CCPA

To the extent that the Personal Data is subject to the CCPA, IORiver shall not sell or share Customer's Personal Data. IORiver acknowledges that when processing Personal Data in the context of the provision of the Services, Customer is not selling or sharing Personal Data to IORiver. IORiver agrees not to retain, use or disclose Customer Personal Data: (i) for any purpose other than the Business Purpose (as defined below); (ii) for no other commercial or Business Purpose; or (iii) outside the direct business relationship between IORiver and Customer. Notwithstanding the foregoing, IORiver may use, disclose, or retain Customer Personal Data to: (i) transfer the Personal Data to other IORiver’s entities (including, without limitation, affiliates and subsidiaries), service providers, third parties and vendors, in order to provide the Services to Customer; (ii) to comply with, or as allowed by, applicable laws; (iii) to defend legal claims or comply with a law enforcement investigation; (ii) for internal use by IORiver to build or improve the quality of its services and/or for any other purpose permitted under the CCPA; (iii) to detect data security incidents, or protect against fraudulent or illegal activity; and (iv) collect and analyse anonymous information. IORiver shall use commercially reasonable efforts to comply with its obligations under CCPA. If IORiver becomes aware of any material applicable requirement (to IORiver as a service provider) under CCPA that IORiver cannot comply with, IORiver shall use commercially reasonable efforts to notify Customer. Upon written Customer’s notice, IORiver shall use commercial reasonable and appropriate steps to stop and remediate IORiver’s alleged unauthorized use of Personal Data; provided that Customer must explain and demonstrate in the written notice which processing activity of Personal Data it considers to be unauthorized and the applicable reasons. IORiver shall use commercially reasonable efforts to enable Customer to comply with consumer requests made pursuant CCPA. Notwithstanding anything to the contrary, Customer shall be fully and solely responsible for complying with its own requirements under CCPA. “Business purpose” means the Processing activities that IORiver will perform to provide Services (as described in the Agreement), this DPA and any other instruction from Customer, as otherwise permitted by applicable law, including, CCPA and the applicable regulations, or as otherwise necessary to provide the Services to Customer.

13. RELATIONSHIP WITH AGREEMENT

In the event of any conflict between the provisions of this DPA and the provisions of the Agreement, the provisions of this DPA shall prevail over the conflicting provisions of the Agreement. Notwithstanding anything to the contrary in the Agreement and/or in any agreement between the parties and to the maximum extent permitted by law: (A) IORiver’s (including IORiver’s Affiliates’) entire, total and aggregate liability, related to personal data or information, privacy, or for breach of, this DPA and/or Data Protection Laws and Regulations, including, without limitation, if any, any indemnification obligation or applicable law regarding data protection or privacy, shall be limited to the amounts paid to IORiver under the Agreement within twelve (12) months preceding the event that gave rise to the claim. This limitation of liability is cumulative and not per incident; (B) In no event will IORiver and/or IORiver Affiliates and/or their third-party providers, be liable under, or otherwise in connection with this DPA for: (i) any indirect, exemplary, special, consequential, incidental or punitive damages; (ii) any loss of profits, business, or anticipated savings;  (iii) any loss of, or damage to data, reputation, revenue or goodwill; and/or (iv) the cost of procuring any substitute goods or services; and (C) The foregoing exclusions and limitations on liability set forth in this Section shall apply: (i) even if IORiver, IORiver Affiliates or third-party providers, have been advised, or should have been aware, of the possibility of losses or damages; (ii) even if any remedy in this DPA fails of its essential purpose; and (iii) regardless of the form, theory or basis of liability (such as, but not limited to, breach of contract or tort).

14. AMENDMENTS

This DPA may be amended at any time by a written instrument duly signed by each of the Parties.

15. LEGAL EFFECT

IORiver may assign this DPA or its rights or obligations hereunder to any Affiliate thereof, or to a successor or any Affiliate thereof, in connection with a merger, consolidation or acquisition of all or substantially all of its shares, assets or business relating to this DPA or the Agreement. Any IORiver obligation hereunder may be performed (in whole or in part), and any IORiver right (including invoice and payment rights) or remedy may be exercised (in whole or in part), by an Affiliate of IORiver.

16. SIGNATURE

The Parties represent and warrant that they each have the power to enter into, execute, perform and be bound by this DPA. You, as the signing person on behalf of Customer, represent and warrant that you have, or you were granted, full authority to bind the Customer and, as applicable, its Authorized Affiliates to this DPA. If you cannot, or do not have authority to, bind the Customer and/or its Authorized Affiliates, you shall not supply or provide Personal Data to IORiver. By signing this DPA, Customer enters into this DPA on behalf of itself and, to the extent required or permitted under applicable Data Protection Laws and Regulations, in the name and on behalf of its Authorized Affiliates, if and to the extent that IORiver processes Personal Data for which such Authorized Affiliates qualify as the/a “data controller”.

SCHEDULE 1 - DETAILS OF THE PROCESSING
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Subject matter
IORiver will Process Personal Data as necessary to perform the Services pursuant to the Agreement, as further instructed by Customer in its use of the Services.

Subject matter
IORiver will Process Personal Data as necessary to perform the Services pursuant to the Agreement, as further instructed by Customer in its use of the Services.

1. Performing the Agreement, this DPA and/or other contracts executed by the Parties, including, providing the Service(s) to Customer and providing support and technical maintenance, if agreed in the Agreement
2. For IORiver to comply with documented reasonable instructions provided by Customer where such instructions are consistent with the terms of the Agreement.

Duration of Processing
Subject to any Section of the DPA and/or the Agreement dealing with the duration of the Processing and the consequences of the expiration or termination thereof, IORiver will Process Personal Data for the duration of the Agreement, unless otherwise agreed upon in writing.

Type of Personal Data
Customer may submit Personal Data to the Services, the extent of which is determined and controlled by Customer in its sole discretion, and which may include, but is not limited to the following categories of Personal Data:

1. Customer's contact details
2. Telemetry and events (e.g. WAF events) of the traffic which passed via the CDNs including information regarding URLs and Client IP Addresses.
3. Any other Personal Data or information that the Customer decides to provide to the IORiver or the Services.

The Customer and the Data Subjects shall provide the Personal data to IORiver by supplying the Personal data to IORiver’s Service.

In some limited circumstances Personal Data may also come from others sources, for example, in the case of anti-money laundering research, fraud detection or as required by applicable law. For clarity, Customer shall always be deemed the “Data Controller” and IORiver shall always be deemed the “Data Processor” (as such terms are defined in the GDPR).

For the avoidance of doubt, the information subject to the IORiver’s privacy policy (e.g., log-in details) available here: https://www.ioriver.io/privacy-policy shall not be subject to the terms of this DPA.

Categories of Data Subjects
‍Customer may submit Personal Data to the Services, the extent of which is determined and controlled by Customer in its sole discretion, and which may include, but is not limited to Personal Data relating to the following categories of data subjects:

1. Customer’s customers and/or Customers
2. Customer's employees

The frequency of the transfer. Continuous basis

The period for which the personal data will be retained, or, if that is not possible, the criteria used to determine that period. As described in this DPA and/or the Agreement

For transfers to (sub-) processors, also specify subject matter, nature and duration of the processing. As detailed in Schedule 2.
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SCHEDULE 2 – SUB-PROCESSOR LIST
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