Alation Data Privacy Addendum for Customers
Version: January 27, 2022
This Data Privacy Addendum (“Addendum”), forms part of the Master Software License and Services Agreement (“Agreement”) between Customer (“Customer” or “you”) and Alation, Inc. (together with its subsidiaries and Affiliates, “Alation”), each a “Party” and collectively the “Parties.” The Parties agree as follows:
1. Definitions. For purposes of this Addendum:
a. “Affiliate” means any entity which directly or indirectly controls, is controlled by, or is under common control by a party.
b. “Data Privacy Laws” means all applicable laws, regulations, and other legal or self-regulatory requirements in any jurisdiction relating to privacy, data protection, data security, breach notification, or the Processing of Personal Data, including without limitation, to the extent applicable, the California Consumer Privacy Act, Cal. Civ. Code § 1798.100 et seq., and any amendments thereto (“CCPA”), the General Data Protection Regulation, Regulation (EU) 2016/679 (“GDPR”), the Swiss Federal Data Protection Act, and the United Kingdom Data Protection Act of 2018 (“UK Privacy Act”). For the avoidance of doubt, if Alation’s Processing activities involving Personal Data are not within the scope of a given Data Privacy Law, such law is not applicable for purposes of this Addendum.
c. “Data Subject” means an identified or identifiable natural person about whom Personal Data relates.
d. “New EU SCCs” means the Standard Contractual Clauses issued pursuant to Commission Implementing Decision (EU) 2021/914 of 4 June 2021 on standard contractual clauses for the transfer of personal data to third countries pursuant to Regulation (EU) 2016/679 of the European Parliament and of the Council, completed as set forth in Schedule A to this DPA.
e. “Old EU SCCs” means the Standard Contractual Clauses issued pursuant to EU Commission Decision of 5 February 2010 on standard contractual clauses for the transfer of personal data to processors established in third countries under Directive 95/46/EC of the European Parliament and of the Council (available as of the Effective Date at https://data.europa.eu/eli/dec/2010/87/2016-12-17).
f. “Personal Data” includes “personal data,” “personal information,” “personally identifiable information,” and similar terms, and such terms shall have the same meaning as defined by applicable Data Privacy Laws, that is Processed in relation to the Agreement.
g. “Process” and “Processing” mean any operation or set of operations performed on Personal Data or on sets of Personal Data, whether or not by automated means, such as collection, recording, organization, creating, structuring, storage, adaptation or alteration, retrieval, consultation, use, disclosure by transmission, dissemination or otherwise making available, alignment or combination, restriction, erasure, or destruction.
h. “Security Breach” means any accidental or unlawful acquisition, destruction, loss, alteration, unauthorized disclosure of, or access to, Personal Data.
2. Scope and Purposes of Processing.
a. The details of the Processing are set forth in Annex I.B of the New EU SCCs.
b. Alation will Process Personal Data solely: (1) to fulfill its obligations to you under the Agreement, including this Addendum; (2) on your behalf; and (3) in compliance with Data Privacy Laws. Alation will not “sell” (as such term is defined in applicable Data Privacy Laws) Personal Data or otherwise Process Personal Data for any purpose other than for the specific purposes set forth herein.
3. Personal Data Processing Requirements. Alation will:
a. Ensure that the persons it authorizes to Process the Personal Data have committed themselves to confidentiality or are under an appropriate statutory obligation of confidentiality.
b. Upon your written request, assist you in the fulfilment of your obligations to respond to verifiable requests by Data Subjects (or their lawful representatives) for exercising their rights under Data Privacy Laws (such as rights to access or delete Personal Data), at your reasonable expense.
c. Promptly notify you of (i) any third-party or Data Subject complaints regarding the Processing of Personal Data; or (ii) any government or Data Subject requests for access to or information about Alation’s Processing of Personal Data on your behalf, unless prohibited by Data Privacy Laws. Alation will provide you with reasonable cooperation and assistance in relation to any such request. If Alation is prohibited by applicable Data Privacy Laws from disclosing the details of a government request to you, Alation shall inform you that it can no longer comply with your instructions under this Addendum, without providing more details, and await your further instructions.
d. Provide reasonable assistance to and cooperation with you for your performance of a data protection impact assessment of Processing or proposed Processing of Personal Data, when required by applicable Data Privacy Laws, and at your reasonable expense.
e. Provide reasonable assistance to and cooperation with you for your consultation with regulatory authorities in relation to the Processing or proposed Processing of Personal Data, including complying with any obligation applicable to Alation under Data Privacy Laws to consult with a regulatory authority in relation to Alation’s Processing or proposed Processing of Personal Data.
4. Data Security. Alation will implement appropriate administrative, technical, physical, and organizational measures to protect Personal Data, as set forth in Annex II.
a. Alation will assist Customer in Customer’s compliance with the security obligations of applicable Data Privacy Laws, as relevant to Alation’s role in Processing the Personal Data, taking into account the nature of Processing and the information available to Alation, by implementing technical and organizational measures that comply with Annex II of the New EU SCCs without prejudice to Alation’s right to make future replacements or updates to the measures that do not lower the level of protection of Personal Data.
b. Alation will ensure that the persons it authorizes to Process the Personal Data are subject to a written confidentiality agreement covering such data or are under an appropriate statutory obligation of confidentiality.
5. Security Breach. Alation will notify you promptly of any known Security Breach and will assist you in your compliance with your Security Breach-related obligations, including without limitation, by:
a. Taking steps to mitigate the effects of the Security Breach and reduce the risk to Data Subjects whose Personal Data was involved; and
b. Providing you with the following information, to the extent known:
i. The nature of the Security Breach, including, where possible, how the Security Breach occurred, the categories and approximate number of Data Subjects concerned, and the categories and approximate number of Personal Data records concerned;
ii. The likely consequences of the Security Breach; and
iii. Measures taken or proposed to be taken by Alation to address the Security Breach, including, where appropriate, measures to mitigate its possible adverse effects.
6. Subprocessors.
a. You acknowledge and agree that Alation may use Affiliates and other subprocessors to Process Personal Data in accordance with the provisions within this Addendum and Data Privacy Laws. Where Alation sub-contracts any of its rights or obligations concerning Personal Data, including to any Affiliate, Alation will take steps to select and retain subprocessors that are capable of maintaining appropriate privacy and security measures to protect Personal Data consistent with applicable Data Privacy Laws.
b. Alation’s current subprocessors are listed at https://www.alation.com/subprocessors. You hereby consent to Alation’s use of such subprocessors. In the event that any other subprocessors are added during the term of the Agreement, Alation shall provide notice, no later than twenty (20) days before the addition, to Customer of such change, at the email address designated by Customer. Customer shall notify Alation of its objections, if any, in writing within ten (10) days of receipt of information about the change, and shall be entitled to terminate the Agreement with immediate effect and without liability in the event Alation does not take into consideration Customer´s objections. Upon such termination, Alation will refund Customer any prepaid fees covering the remainder of the term of such Order Form(s) following the effective date of termination with respect to such terminated Services.
7. Data Transfers.
a. Alation will comply with all Data Privacy laws applicable to Alation in its role as provider of the Services. Customer will comply with all applicable Data Privacy laws relevant to use of the Services, including by obtaining any consents and providing any notices required under applicable Data Privacy laws for Alation to provide the Services. Customer will ensure that Customer and Customer’s authorized users are entitled to transfer the Personal Data to Alation so that Alation and its subprocessors may lawfully Process the Personal Data in accordance with this Addendum.
b. Customer authorizes Alation and its subprocessors to make international transfers of the Personal Data in accordance with this Addendum so long as applicable Data Privacy law for such transfers is respected.
c. With respect to Personal Data transferred from the United Kingdom for which United Kingdom law (and not the law in any European Economic Area jurisdiction) governs the international nature of the transfer, and such law permits use of the Old EU SCCs but not use of the New EU SCCs, the Old EU SCCs form part of this DPA and take precedence over the rest of this DPA as set forth in the Old EU SCCs, until such time that the United Kingdom adopts the New EU SCCs, in which case the New EU SCCs as provided herein will control. For purposes of the Old EU SCCs, they shall be deemed completed as follows:
i. The “exporters” and “importers” are the Parties and their Affiliates to the extent any of them is involved in such transfer, including those set forth in Annex I.A of the New EU SCCs.
ii. Clause 9 of the Old EU SCCs specifies that United Kingdom law will govern the Old SCCs.
iii. The content of Appendix 1 of the Old EU SCCs is set forth in Annex I.B of the New EU SCCs herein.
iv. The content of Appendix 2 of the Old EU SCCs is set forth in the Annex II
d. With respect to Personal Data transferred from Switzerland for which Swiss law (and not the law in any European Economic Area jurisdiction) governs the international nature of the transfer, references to the GDPR in Clause 4 of the New EU SCCs are, to the extent legally required, amended to refer to the Swiss Federal Data Protection Act or its successor instead, and the concept of supervisory authority shall include the Swiss Federal Data Protection and Information Commissioner.
e. With respect to Personal Data transferred from the European Economic Area, the New EU SCCs incorporated herein shall apply, form part of this Addendum, and take precedence over the rest of this Addendum as set forth in the New EU SCCs.
8. Additional Safeguards for the Transfer and Processing of Personal Data from the EEA, Switzerland, and the United Kingdom. To the extent that Alation Processes Personal Data of Data Subjects located in or subject to the applicable Data Protection Laws of the European Economic Area, Switzerland, or the United Kingdom, Alation agrees to the following safeguards to protect such data to an equivalent level as applicable Data Protection Laws:
a. Customer and Alation shall encrypt all transfers of the Personal Data between them, and Alation shall encrypt any onward transfers it makes of such personal data, to prevent the acquisition of such data by third parties, such as governmental authorities who may gain physical access to the transmission mechanisms (e.g., wires and cables) while the data is in transmission.
b. Alation represents and warrants that:
i. as of the date of this contract, it has not received any directive under Section 702 of the U.S. Foreign Intelligence Surveillance Act, codified at 50 U.S.C. § 1881a (“FISA Section 702”).
ii. no court has found Alation to be the type of entity eligible to receive process issued under FISA Section 702: (i) an “electronic communication service provider” within the meaning of 50 U.S.C § 1881(b)(4) or (ii) a member of any of the categories of entities described within that definition.
iii. it is not the type of provider that is eligible to be subject to Upstream collection (“bulk” collection) pursuant to FISA Section 702, as described in paragraphs 62 & 179 of the judgment in the EU Court of Justice Case C-311/18, Data Protection Commissioner v Facebook Ireland Limited and Maximillian Schrems ("Schrems II"), and that therefore the only FISA Section 702 process it could be eligible to receive, if it is an “electronic communication service provider” within the meaning of 50 U.S.C § 1881(b)(4), would be based on a specific “targeted selector” i.e., an identifier that is unique to the targeted endpoint of communications subject to the surveillance.
c. Alation will not comply with any request under FISA Section 702 for bulk surveillance, i.e., a surveillance demand whereby a targeted account identifier is not identified via a specific “targeted selector” (an identifier that is unique to the targeted endpoint of communications subject to the surveillance).
d. Alation will use all reasonably available legal mechanisms to challenge any demands for data access through national security process it receives as well as any non-disclosure provisions attached thereto.
e. Alation will take no action pursuant to U.S. Executive Order 12333.
f. At 12-month intervals or more often if allowed by law, Alation shall create a transparency report that will be made available to Customer upon request, indicating the types of binding legal demands for the personal data it has received, including national security orders and directives, which shall encompass any process issued under FISA Section 702.
g. Alation will promptly notify Customer if Alation can no longer comply with the Standard Contractual Clauses or the clauses in this Section. Alation shall not be required to provide Customer with specific information about why it can no longer comply, if providing such information is prohibited by applicable law. Such notice shall entitle Customer to terminate the Agreement (or, at Customer’s option, affected statements of work, order forms, and like documents thereunder) and receive a prompt pro-rata refund of any prepaid amounts thereunder. This is without prejudice to Customer’s other rights and remedies with respect to a breach of the Agreement.
9. Audits. Alation shall make available to Customer and any auditor mandated by Customer, within a reasonable timeframe, and not more than once per calendar year, all information reasonably necessary to demonstrate compliance with the obligations in this Agreement. Alation shall provide assistance by allowing inspection of relevant documents or records, to the extent such information directly relates to the transaction records for the services provided by Alation to Customer. If the Agreement does not include audit rights, Alation shall allow Customer (or Customer´s independent third party auditor) to conduct an on-site audit of the procedures relevant to the protection of Personal Data, subject to the confidentiality provisions of the Agreement, upon twenty (20) days advance notice, and during regular business hours. The costs of such on-site audits shall be Customer’s sole responsibility.
10. Return or Destruction of Personal Data. Except to the extent required otherwise by Data Privacy Laws, Alation will, at your choice and upon your written request, return to you and/or securely destroy all Personal Data upon such request or at termination of the Agreement. Except to the extent prohibited by Data Privacy Laws, Alation will inform you if it is not able to return or delete the Personal Data.
11. Survival. The provisions of this Addendum survive the termination or expiration of the Agreement for so long as Alation or its subprocessors Process the Personal Data.
Schedule A
STANDARD CONTRACTUAL CLAUSES
SECTION 1
Clause 1
Purpose and scope
(a) The purpose of these standard contractual clauses is to ensure compliance with the requirements of 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 (General Data Protection Regulation)1 for the transfer of personal data to a third country.
(b) The Parties:
(i) the natural or legal person(s), public authority/ies, agency/ies or other body/ies (hereinafter ‘entity/ies’) transferring the personal data, as listed in Annex I.A. (hereinafter each ‘data exporter’), and
(ii) the entity/ies in a third country receiving the personal data from the data exporter, directly or indirectly via another entity also Party to these Clauses, as listed in Annex I.A. (hereinafter each ‘data importer’) have agreed to these standard contractual clauses (hereinafter: ‘Clauses’).
(c) These Clauses apply with respect to the transfer of personal data as specified in Annex I.B.
(d) The Appendix to these Clauses containing the Annexes referred to therein forms an integral part of these Clauses.
Clause 2
Effect and invariability of the Clauses
(a) These Clauses set out appropriate safeguards, including enforceable data subject rights and effective legal remedies, pursuant to Article 46(1) and Article 46 (2)(c) of Regulation (EU) 2016/679 and, with respect to data transfers from controllers to processors and/or processors to processors, standard contractual clauses pursuant to Article 28(7) of Regulation (EU) 2016/679, provided they are not modified, except to select the appropriate Module(s) or to add or update information in the Appendix. This does not prevent the Parties from including the standard contractual clauses laid down in these Clauses in a wider contract and/or to add other clauses or additional safeguards, provided that they do not contradict, directly or indirectly, these Clauses or prejudice the fundamental rights or freedoms of data subjects.
(b) These Clauses are without prejudice to obligations to which the data exporter is subject by virtue of Regulation (EU) 2016/679.
Clause 3
Third-party beneficiaries
(a) Data subjects may invoke and enforce these Clauses, as third-party beneficiaries, against the data exporter and/or data importer, with the following exceptions:
(i) Clause 1, Clause 2, Clause 3, Clause 6, Clause 7;
(ii) Clause 8.1(b), 8.9(a), (c), (d) and (e);
(iii) Clause 9(a), (c), (d) and (e);
(iv) Clause 12(a), (d) and (f);
(v) Clause 13;
(vi) Clause 15.1(c), (d) and (e);
(vii) Clause 16(e);
(viii) Clause 18(a) and (b);
(b) Paragraph (a) is without prejudice to rights of data subjects under Regulation (EU) 2016/679.
Clause 4
Interpretation
(a) Where these Clauses use terms that are defined in Regulation (EU) 2016/679, those terms shall have the same meaning as in that Regulation.
(b) These Clauses shall be read and interpreted in the light of the provisions of Regulation (EU) 2016/679.
(c) These Clauses shall not be interpreted in a way that conflicts with rights and obligations provided for in Regulation (EU) 2016/679.
Clause 5
Hierarchy
In the event of a contradiction between these Clauses and the provisions of related agreements between the Parties, existing at the time these Clauses are agreed or entered into thereafter, these Clauses shall prevail.
Clause 6
Description of the transfer(s)
The details of the transfer(s), and in particular the categories of personal data that are transferred and the purpose(s) for which they are transferred, are specified in Annex I.B.
Clause 7 - Optional
Docking clause
(a) An entity that is not a Party to these Clauses may, with the agreement of the Parties, accede to these Clauses at any time, either as a data exporter or as a data importer, by completing the Appendix and signing Annex I.A.
(b) Once it has completed the Appendix and signed Annex I.A, the acceding entity shall become a Party to these Clauses and have the rights and obligations of a data exporter or data importer in accordance with its designation in Annex I.A.
(c) The acceding entity shall have no rights or obligations arising under these Clauses from the period prior to becoming a Party.
SECTION II – OBLIGATIONS OF THE PARTIES
Clause 8
Data protection safeguards
The data exporter warrants that it has used reasonable efforts to determine that the data importer is able, through the implementation of appropriate technical and organisational measures, to satisfy its obligations under these Clauses.
8.1 Instructions
(a) The data importer shall process the personal data only on documented instructions from the data exporter. The data exporter may give such instructions throughout the duration of the contract.
(b) The data importer shall immediately inform the data exporter if it is unable to follow those instructions.
8.2 Purpose limitation
The data importer shall process the personal data only for the specific purpose(s) of the transfer, as set out in Annex I.B, unless on further instructions from the data exporter.
8.3 Transparency
On request, the data exporter shall make a copy of these Clauses, including the Appendix as completed by the Parties, available to the data subject free of charge. To the extent necessary to protect business secrets or other confidential information, including the measures described in Annex II and personal data, the data exporter may redact part of the text of the Appendix to these Clauses prior to sharing a copy, but shall provide a meaningful summary where the data subject would otherwise not be able to understand the its content or exercise his/her rights. On request, the Parties shall provide the data subject with the reasons for the redactions, to the extent possible without revealing the redacted information. This Clause is without prejudice to the obligations of the data exporter under Articles 13 and 14 of Regulation (EU) 2016/679.
8.4 Accuracy
If the data importer becomes aware that the personal data it has received is inaccurate, or has become outdated, it shall inform the data exporter without undue delay. In this case, the data importer shall cooperate with the data exporter to erase or rectify the data.
8.5 Duration of processing and erasure or return of data
Processing by the data importer shall only take place for the duration specified in Annex I.B. After the end of the provision of the processing services, the data importer shall, at the choice of the data exporter, delete all personal data processed on behalf of the data exporter and certify to the data exporter that it has done so, or return to the data exporter all personal data processed on its behalf and delete existing copies. Until the data is deleted or returned, the data importer shall continue to ensure compliance with these Clauses. In case of local laws applicable to the data importer that prohibit return or deletion of the personal data, the data importer warrants that it will continue to ensure compliance with these Clauses and will only process it to the extent and for as long as required under that local law. This is without prejudice to Clause 14, in particular the requirement for the data importer under Clause 14(e) to notify the data exporter throughout the duration of the contract if it has reason to believe that it is or has become subject to laws or practices not in line with the requirements under Clause 14(a).
8.6 Security of processing
(a) The data importer and, during transmission, also the data exporter shall implement appropriate technical and organisational measures to ensure the security of the data, including protection against a breach of security leading to accidental or unlawful destruction, loss, alteration, unauthorised disclosure or access to that data (hereinafter ‘personal data breach’). In assessing the appropriate level of security, the Parties shall take due account of the state of the art, the costs of implementation, the nature, scope, context and purpose(s) of processing and the risks involved in the processing for the data subjects. The Parties shall in particular consider having recourse to encryption or pseudonymisation, including during transmission, where the purpose of processing can be fulfilled in that manner. In case of pseudonymisation, the additional information for attributing the personal data to a specific data subject shall, where possible, remain under the exclusive control of the data exporter. In complying with its obligations under this paragraph, the data importer shall at least implement the technical and organisational measures specified in Annex II. The data importer shall carry out regular checks to ensure that these measures continue to provide an appropriate level of security.
(b) The data importer shall grant access to the personal data to members of its personnel only to the extent strictly necessary for the implementation, management and monitoring of the contract. It shall ensure that persons authorised to process the personal data have committed themselves to confidentiality or are under an appropriate statutory obligation of confidentiality.
(c) In the event of a personal data breach concerning personal data processed by the data importer under these Clauses, the data importer shall take appropriate measures to address the breach, including measures to mitigate its adverse effects. The data importer shall also notify the data exporter without undue delay after having become aware of the breach. Such notification shall contain the details of a contact point where more information can be obtained, a description of the nature of the breach (including, where possible, categories and approximate number of data subjects and personal data records concerned), its likely consequences and the measures taken or proposed to address the breach including, where appropriate, measures to mitigate its possible adverse effects. Where, and in so far as, it is not possible to provide all information at the same time, the initial notification shall contain the information then available and further information shall, as it becomes available, subsequently be provided without undue delay.
(d) The data importer shall cooperate with and assist the data exporter to enable the data exporter to comply with its obligations under Regulation (EU) 2016/679, in particular to notify the competent supervisory authority and the affected data subjects, taking into account the nature of processing and the information available to the data importer.
8.7 Sensitive data
Where the transfer involves personal data revealing racial or ethnic origin, political opinions, religious or philosophical beliefs, or trade union membership, genetic data, or biometric data for the purpose of uniquely identifying a natural person, data concerning health or a person’s sex life or sexual orientation, or data relating to criminal convictions and offences (hereinafter ‘sensitive data’), the data importer shall apply the specific restrictions and/or additional safeguards described in Annex I.B.
8.8 Onward Transfers
The data importer shall only disclose the personal data to a third party on documented instructions from the data exporter. In addition, the data may only be disclosed to a third party located outside the European Union2 (in the same country as the data importer or in another third country, hereinafter ‘onward transfer’) if the third party is or agrees to be bound by these Clauses, under the appropriate Module, or if:
(i) the onward transfer is to a country benefitting from an adequacy decision pursuant to Article 45 of Regulation (EU) 2016/679 that covers the onward transfer;
(ii) the third party otherwise ensures appropriate safeguards pursuant to Articles 46 or 47 Regulation of (EU) 2016/679 with respect to the processing in question;
(iii) the onward transfer is necessary for the establishment, exercise or defence of legal claims in the context of specific administrative, regulatory or judicial proceedings; or
(iv) the onward transfer is necessary in order to protect the vital interests of the data subject or of another natural person.
Any onward transfer is subject to compliance by the data importer with all the other safeguards under these Clauses, in particular purpose limitation.
8.9 Documentation and compliance
(a) The data importer shall promptly and adequately deal with enquiries from the data exporter that relate to the processing under these Clauses.
(b) The Parties shall be able to demonstrate compliance with these Clauses. In particular, the data importer shall keep appropriate documentation on the processing activities carried out on behalf of the data exporter.
(c) The data importer shall make available to the data exporter all information necessary to demonstrate compliance with the obligations set out in these Clauses and at the data exporter’s request, allow for and contribute to audits of the processing activities covered by these Clauses, at reasonable intervals or if there are indications of non-compliance. In deciding on a review or audit, the data exporter may take into account relevant certifications held by the data importer.
(d) The data exporter may choose to conduct the audit by itself or mandate an independent auditor. Audits may include inspections at the premises or physical facilities of the data importer and shall, where appropriate, be carried out with reasonable notice.
(e) The Parties shall make the information referred to in paragraphs (b) and (c), including the results of any audits, available to the competent supervisory authority on request.
Clause 9
Use of sub-processors
(a) GENERAL WRITTEN AUTHORISATION The data importer has the data exporter’s general authorisation for the engagement of sub-processor(s) from an agreed list. The data importer shall specifically inform the data exporter in writing of any intended changes to that list through the addition or replacement of sub-processors at least 10 business days in advance, thereby giving the data exporter sufficient time to be able to object to such changes prior to the engagement of the sub-processor(s). The data importer shall provide the data exporter with the information necessary to enable the data exporter to exercise its right to object.
(b) Where the data importer engages a sub-processor to carry out specific processing activities (on behalf of the data exporter), it shall do so by way of a written contract that provides for, in substance, the same data protection obligations as those binding the data importer under these Clauses, including in terms of third-party beneficiary rights for data subjects3. The Parties agree that, by complying with this Clause, the data importer fulfils its obligations under Clause 8.8. The data importer shall ensure that the sub-processor complies with the obligations to which the data importer is subject pursuant to these Clauses.
(c) The data importer shall provide, at the data exporter’s request, a copy of such a sub-processor agreement and any subsequent amendments to the data exporter. To the extent necessary to protect business secrets or other confidential information, including personal data, the data importer may redact the text of the agreement prior to sharing a copy.
(d) The data importer shall remain fully responsible to the data exporter for the performance of the sub-processor’s obligations under its contract with the data importer. The data importer shall notify the data exporter of any failure by the sub-processor to fulfil its obligations under that contract.
(e) The data importer shall agree a third-party beneficiary clause with the sub-processor whereby - in the event the data importer has factually disappeared, ceased to exist in law or has become insolvent - the data exporter shall have the right to terminate the sub-processor contract and to instruct the sub-processor to erase or return the personal data.
Clause 10
Data subject rights
(a) The data importer shall promptly notify the data exporter of any request it has received from a data subject. It shall not respond to that request itself unless it has been authorised to do so by the data exporter.
(b) The data importer shall assist the data exporter in fulfilling its obligations to respond to data subjects’ requests for the exercise of their rights under Regulation (EU) 2016/679. In this regard, the Parties shall set out in Annex II the appropriate technical and organisational measures, taking into account the nature of the processing, by which the assistance shall be provided, as well as the scope and the extent of the assistance required.
(c) In fulfilling its obligations under paragraphs (a) and (b), the data importer shall comply with the instructions from the data exporter.
Clause 11
Redress
(a) The data importer shall inform data subjects in a transparent and easily accessible format, through individual notice or on its website, of a contact point authorised to handle complaints. It shall deal promptly with any complaints it receives from a data subject.
(b) In case of a dispute between a data subject and one of the Parties as regards compliance with these Clauses, that Party shall use its best efforts to resolve the issue amicably in a timely fashion. The Parties shall keep each other informed about such disputes and, where appropriate, cooperate in resolving them.
(c) Where the data subject invokes a third-party beneficiary right pursuant to Clause 3, the data importer shall accept the decision of the data subject to:
(i) lodge a complaint with the supervisory authority in the Member State of his/her habitual residence or place of work, or the competent supervisory authority pursuant to Clause 13;
(ii) refer the dispute to the competent courts within the meaning of Clause 18.
(d) The Parties accept that the data subject may be represented by a not-for-profit body, organisation or association under the conditions set out in Article 80(1) of Regulation (EU) 2016/679.
(e) The data importer shall abide by a decision that is binding under the applicable EU or Member State law.
(f) The data importer agrees that the choice made by the data subject will not prejudice his/her substantive and procedural rights to seek remedies in accordance with applicable laws.
Clause 12
Liability
(a) Each Party shall be liable to the other Party/ies for any damages it causes the other Party/ies by any breach of these Clauses.
(b) The data importer shall be liable to the data subject, and the data subject shall be entitled to receive compensation, for any material or non-material damages the data importer or its sub-processor causes the data subject by breaching the third-party beneficiary rights under these Clauses.
(c) Notwithstanding paragraph (b), the data exporter shall be liable to the data subject, and the data subject shall be entitled to receive compensation, for any material or non-material damages the data exporter or the data importer (or its sub-processor) causes the data subject by breaching the third-party beneficiary rights under these Clauses. This is without prejudice to the liability of the data exporter and, where the data exporter is a processor acting on behalf of a controller, to the liability of the controller under Regulation (EU) 2016/679 or Regulation (EU) 2018/1725, as applicable.
(d) The Parties agree that if the data exporter is held liable under paragraph (c) for damages caused by the data importer (or its sub-processor), it shall be entitled to claim back from the data importer that part of the compensation corresponding to the data importer’s responsibility for the damage.
(e) Where more than one Party is responsible for any damage caused to the data subject as a result of a breach of these Clauses, all responsible Parties shall be jointly and severally liable and the data subject is entitled to bring an action in court against any of these Parties.
(f) The Parties agree that if one Party is held liable under paragraph (e), it shall be entitled to claim back from the other Party/ies that part of the compensation corresponding to its / their responsibility for the damage.
(g) The data importer may not invoke the conduct of a sub-processor to avoid its own liability.
Clause 13
Supervision
(a) Where the data exporter is established in an EU Member State: The supervisory authority with responsibility for ensuring compliance by the data exporter with Regulation (EU) 2016/679 as regards the data transfer, as indicated in Annex I.C, shall act as competent supervisory authority.
Where the data exporter is not established in an EU Member State, but falls within the territorial scope of application of Regulation (EU) 2016/679 in accordance with its Article 3(2) and has appointed a representative pursuant to Article 27(1) of Regulation (EU) 2016/679: The supervisory authority of the Member State in which the representative within the meaning of Article 27(1) of Regulation (EU) 2016/679 is established, as indicated in Annex I.C, shall act as competent supervisory authority.
Where the data exporter is not established in an EU Member State, but falls within the territorial scope of application of Regulation (EU) 2016/679 in accordance with its Article 3(2) without however having to appoint a representative pursuant to Article 27(2) of Regulation (EU) 2016/679: The supervisory authority of one of the Member States in which the data subjects whose personal data is transferred under these Clauses in relation to the offering of goods or services to them, or whose behaviour is monitored, are located, as indicated in Annex I.C, shall act as competent supervisory authority.
(b) The data importer agrees to submit itself to the jurisdiction of and cooperate with the competent supervisory authority in any procedures aimed at ensuring compliance with these Clauses. In particular, the data importer agrees to respond to enquiries, submit to audits and comply with the measures adopted by the supervisory authority, including remedial and compensatory measures. It shall provide the supervisory authority with written confirmation that the necessary actions have been taken.
SECTION III – LOCAL LAWS AND OBLIGATIONS IN CASE OF ACCESS BY PUBLIC AUTHORITIES
Clause 14
Local laws and practices affecting compliance with the Clauses
(a) The Parties warrant that they have no reason to believe that the laws and practices in the third country of destination applicable to the processing of the personal data by the data importer, including any requirements to disclose personal data or measures authorising access by public authorities, prevent the data importer from fulfilling its obligations under these Clauses. This is based on the understanding that laws and practices that respect the essence of the fundamental rights and freedoms and do not exceed what is necessary and proportionate in a democratic society to safeguard one of the objectives listed in Article 23(1) of Regulation (EU) 2016/679, are not in contradiction with these Clauses.
(b) The Parties declare that in providing the warranty in paragraph (a), they have taken due account in particular of the following elements:
(i) the specific circumstances of the transfer, including the length of the processing chain, the number of actors involved and the transmission channels used; intended onward transfers; the type of recipient; the purpose of processing; the categories and format of the transferred personal data; the economic sector in which the transfer occurs; the storage location of the data transferred;
(ii) the laws and practices of the third country of destination– including those requiring the disclosure of data to public authorities or authorising access by such authorities – relevant in light of the specific circumstances of the transfer, and the applicable limitations and safeguards4;
(iii) any relevant contractual, technical or organisational safeguards put in place to supplement the safeguards under these Clauses, including measures applied during transmission and to the processing of the personal data in the country of destination.
(c) The data importer warrants that, in carrying out the assessment under paragraph (b), it has made its best efforts to provide the data exporter with relevant information and agrees that it will continue to cooperate with the data exporter in ensuring compliance with these Clauses.
(d) The Parties agree to document the assessment under paragraph (b) and make it available to the competent supervisory authority on request.
(e) The data importer agrees to notify the data exporter promptly if, after having agreed to these Clauses and for the duration of the contract, it has reason to believe that it is or has become subject to laws or practices not in line with the requirements under paragraph (a), including following a change in the laws of the third country or a measure (such as a disclosure request) indicating an application of such laws in practice that is not in line with the requirements in paragraph (a).
(f) Following a notification pursuant to paragraph (e), or if the data exporter otherwise has reason to believe that the data importer can no longer fulfil its obligations under these Clauses, the data exporter shall promptly identify appropriate measures (e.g. technical or organisational measures to ensure security and confidentiality) to be adopted by the data exporter and/or data importer to address the situation. The data exporter shall suspend the data transfer if it considers that no appropriate safeguards for such transfer can be ensured, or if instructed by the competent supervisory authority to do so. In this case, the data exporter shall be entitled to terminate the contract, insofar as it concerns the processing of personal data under these Clauses. If the contract involves more than two Parties, the data exporter may exercise this right to termination only with respect to the relevant Party, unless the Parties have agreed otherwise. Where the contract is terminated pursuant to this Clause, Clause 16(d) and (e) shall apply.
Clause 15
Obligations of the data importer in case of access by public authorities
15.1 Notification
(a) The data importer agrees to notify the data exporter and, where possible, the data subject promptly (if necessary with the help of the data exporter) if it:
(i) receives a legally binding request from a public authority, including judicial authorities, under the laws of the country of destination for the disclosure of personal data transferred pursuant to these Clauses; such notification shall include information about the personal data requested, the requesting authority, the legal basis for the request and the response provided;
or
(ii) becomes aware of any direct access by public authorities to personal data transferred pursuant to these Clauses in accordance with the laws of the country of destination; such notification shall include all information available to the importer.
(b) If the data importer is prohibited from notifying the data exporter and/or the data subject under the laws of the country of destination, the data importer agrees to use its best efforts to obtain a waiver of the prohibition, with a view to communicating as much information as possible, as soon as possible. The data importer agrees to document its best efforts in order to be able to demonstrate them on request of the data exporter.
(c) Where permissible under the laws of the country of destination, the data importer agrees to provide the data exporter, at regular intervals for the duration of the contract, with as much relevant information as possible on the requests received (in particular, number of requests, type of data requested, requesting authority/ies, whether requests have been challenged and the outcome of such challenges, etc.).
(d) The data importer agrees to preserve the information pursuant to paragraphs (a) to (c) for the duration of the contract and make it available to the competent supervisory authority on request.
(e) Paragraphs (a) to (c) are without prejudice to the obligation of the data importer pursuant to Clause 14(e) and Clause 16 to inform the data exporter promptly where it is unable to comply with these Clauses.
15.2 Review of legality and data minimisation
(a) The data importer agrees to review the legality of the request for disclosure, in particular whether it remains within the powers granted to the requesting public authority, and to challenge the request if, after careful assessment, it concludes that there are reasonable grounds to consider that the request is unlawful under the laws of the country of destination, applicable obligations under international law and principles of international comity. The data importer shall, under the same conditions, pursue possibilities of appeal. When challenging a request, the data importer shall seek interim measures with a view to suspending the effects of the request until the competent judicial authority has decided on its merits. It shall not disclose the personal data requested until required to do so under the applicable procedural rules. These requirements are without prejudice to the obligations of the data importer under Clause 14(e).
(b) The data importer agrees to document its legal assessment and any challenge to the request for disclosure and, to the extent permissible under the laws of the country of destination, make the documentation available to the data exporter. It shall also make it available to the competent supervisory authority on request.
(c) The data importer agrees to provide the minimum amount of information permissible when responding to a request for disclosure, based on a reasonable interpretation of the request.
SECTION IV – FINAL PROVISIONS
Clause 16
Non-compliance with the Clauses and termination
(a) The data importer shall promptly inform the data exporter if it is unable to comply with these Clauses, for whatever reason.
(b) In the event that the data importer is in breach of these Clauses or unable to comply with these Clauses, the data exporter shall suspend the transfer of personal data to the data importer until compliance is again ensured or the contract is terminated. This is without prejudice to Clause 14(f).
(c) The data exporter shall be entitled to terminate the contract, insofar as it concerns the processing of personal data under these Clauses, where:
(i) the data exporter has suspended the transfer of personal data to the data importer pursuant to paragraph (b) and compliance with these Clauses is not restored within a reasonable time and in any event within one month of suspension;
(ii) the data importer is in substantial or persistent breach of these Clauses; or
(iii) the data importer fails to comply with a binding decision of a competent court or supervisory authority regarding its obligations under these Clauses.
In these cases, it shall inform the competent supervisory authority of such non-compliance. Where the contract involves more than two Parties, the data exporter may exercise this right to termination only with respect to the relevant Party, unless the Parties have agreed otherwise.
(d) Personal data that has been transferred prior to the termination of the contract pursuant to paragraph (c) shall at the choice of the data exporter immediately be returned to the data exporter or deleted in its entirety. The same shall apply to any copies of the data. The data importer shall certify the deletion of the data to the data exporter. Until the data is deleted or returned, the data importer shall continue to ensure compliance with these Clauses. In case of local laws applicable to the data importer that prohibit the return or deletion of the transferred personal data, the data importer warrants that it will continue to ensure compliance with these Clauses and will only process the data to the extent and for as long as required under that local law.
(e) Either Party may revoke its agreement to be bound by these Clauses where (i) the European Commission adopts a decision pursuant to Article 45(3) of Regulation (EU) 2016/679 that covers the transfer of personal data to which these Clauses apply; or (ii) Regulation (EU) 2016/679 becomes part of the legal framework of the country to which the personal data is transferred. This is without prejudice to other obligations applying to the processing in question under Regulation (EU) 2016/679.
Clause 17
Governing law
These Clauses shall be governed by the law of the EU Member State in which the data exporter is established. Where such law does not allow for third-party beneficiary rights, they shall be governed by the law of another EU Member State that does allow for third-party beneficiary rights. The Parties agree that this shall be the law of the Netherlands (specify Member State).
Clause 18
Choice of forum and jurisdiction
(a) Any dispute arising from these Clauses shall be resolved by the courts of an EU Member State.
(b) The Parties agree that those shall be the courts of the Netherlands (specify Member State).
(c) A data subject may also bring legal proceedings against the data exporter and/or data importer before the courts of the Member State in which he/she has his/her habitual residence.
(d) The Parties agree to submit themselves to the jurisdiction of such courts.
APPENDIX
EXPLANATORY NOTE:
It must be possible to clearly distinguish the information applicable to each transfer or category of transfers and, in this regard, to determine the respective role(s) of the Parties as data exporter(s) and/or data importer(s). This does not necessarily require completing and signing separate appendices for each transfer/category of transfers and/or contractual relationship, where this transparency can achieved through one appendix. However, where necessary to ensure sufficient clarity, separate appendices should be used.
ANNEX I
A. LIST OF PARTIES
MODULE TWO: Transfer controller to processor
MODULE THREE: Transfer processor to processor
Data exporter(s): [Identity and contact details of the data exporter(s) and, where applicable, of its/their data protection officer and/or representative in the European Union]
1. Name: …
Address: …
Contact person’s name, position and contact details: …
Activities relevant to the data transferred under these Clauses: …
Signature and date: …
Role (controller/processor): …
The data exporter is the Customer whose information is contained on the applicable Order Form, and the applicable date and signature are the signature and date on the Order Form. The data exporter is the controller. The applicable activities are those set out in the Agreement and this Addendum.
Data importer(s): [Identity and contact details of the data importer(s), including any contact person with responsibility for data protection]
1. Name:
Address:
Contact person’s name, position and contact details: …
Activities relevant to the data transferred under these Clauses:
Signature and date: …
Role (controller/processor):
The data importer is Alation, Inc., as identified on the applicable Order Form, and the applicable date and signature are the signature and date on the Order Form. The data importer is the processor. The applicable activities are those set out in the Agreement and this Addendum.
B. DESCRIPTION OF TRANSFER
Categories of data subjects whose personal data is transferred
Customer employees and authorized subcontractors
Categories of personal data transferred
Name, IP address, business email address
Sensitive data transferred (if applicable) and applied restrictions or safeguards that fully take into consideration the nature of the data and the risks involved, such as for instance strict purpose limitation, access restrictions (including access only for staff having followed specialised training), keeping a record of access to the data, restrictions for onward transfers or additional security measures.
N/A
The frequency of the transfer (e.g. whether the data is transferred on a one-off or continuous basis).
Continuous for the duration of the Agreement and this Addendum
Nature of the processing
For Alation to provide services in accordance with the Agreement.
Purpose(s) of the data transfer and further processing
Provision of the services by the Alation to Customer in accordance with the Agreement.
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 will be retained for the length of the Agreement or in accordance with applicable Data Privacy Laws.
For transfers to (sub-) processors, also specify subject matter, nature and duration of the processing
Same as above.
C. COMPETENT SUPERVISORY AUTHORITY
Identify the competent supervisory authority/ies in accordance with Clause 13
Same as Clause 13 above.
ANNEX II - TECHNICAL AND ORGANISATIONAL MEASURES INCLUDING
TECHNICAL AND ORGANISATIONAL MEASURES TO ENSURE THE SECURITY OF
THE DATA
During the Agreement Term, when processing Personal Data on behalf of Customer (referred to for purposes of this Annex as “Customer Data”) in connection with the Services, Alation has implemented and shall maintain appropriate technical and organizational security measures for the processing of such data, including the measures specified in this Annex or as consistent with such measures to the extent applicable to Alation’s processing of Customer Data.
1. Intrusion Prevention.
(a) Alation implements and maintains a working network firewall to protect data accessible via the Internet and will keep all Customer Data protected by the firewall at all times.
(b) Alation maintains risks and keeps its systems and software up to date with the latest upgrades, updates, bug fixes, new versions and other modifications necessary to ensure security of the Customer Data.
(c) Alation uses anti-malware software and keeps the anti-malware software up to date.
2. Security Awareness Training. Alation requires annual security and privacy training for all employees with access to Customer Data
3. Physical Access Control. Alation’s services and data are hosted in AWS’ facilities in the USA and protected by AWS in accordance with their security protocols.
4. Logical Access Controls.
(a) Alation assigns a unique ID to each employee and leverages an Identity Provider to manage access to systems processing Customer Data.
(b) All access to systems processing Customer Data is protected by Multi Factor Authentication (MFA).
(c) Alation restricts access to Customer Data to only those people with a “need-to-know” for a Permitted Purpose and following least privileges principles.
(d) Alation regularly reviews quarterly the list of people and systems with access to Customer Data and removes accounts upon termination of employment or a change in job status that results in employees no longer requiring access to Customer Data.
(e) Alation mandates and ensures the use of system-enforced “strong passwords” in accordance with the best practices (described below) on all systems hosting, storing, processing, or that have or control access to Customer Data and will require that all passwords and access credentials are kept confidential and not shared among personnel.
(f) Password best practices implemented by Alation’s Identity Provider. Passwords must meet the following criteria: (1) contain at least 12 characters; (2) must contain lowercase and uppercase letters, numbers and a special character; and (3) cannot be part of a Alation provided list of common passwords.
(g) Alation maintains and enforces “account lockout” by disabling accounts with access to Customer Data when an account exceeds more than ten (10) consecutive incorrect password attempts.
(h) Alation does not operate any internal corporate network. All access to Alation resources is protected by strong passwords and MFA.
(i) Alation monitors their production systems and implements and maintains security controls and procedures designed to prevent, detect and respond to identified threats and risks.
(j) Strict privacy controls exist in the application code that are designed to ensure data privacy and to prevent one customer from accessing another customer’s data (i.e., logical separation).
5. Human Resource Security.
(a) Background Checks. Alation conducts at its expense a criminal background investigation on all employees who are to perform material aspects of the Services under this Agreement.
(b) Security Policy and Confidentiality. Alation requires all employees to acknowledge in writing, at the time of hire, they will adhere to terms that are in accordance with Alation’s security policy and to protect all Customer Data at all times. Alation requires all employees to sign a confidentiality statement at the time of hire.
6. Disaster Recovery and Back-up Controls.
(a) All Customer Data is permanently stored in the same region in which Customer is located, and is backed up for disaster recovery.
(b) Alation relies on a reputable Infrastructure-As-A-Service provider. Alation leverages their portfolio of globally redundant services to ensure Services run reliably. Alation benefits from the ability to dynamically scale up, or completely re-provision its infrastructure resources on an as-needed basis, across multiple geographical areas, using the same Alation, tools, and APIs. Alation’s infrastructure scales up and down on demand as part of day-to-day operations and does so in response to any changes in our Customers’ needs. This includes not just compute resources, but storage and database resources, networking, security, and DNS. Every component in Alation’s infrastructure is designed and built for high availability.
(c) Alation’s data security, high availability, and built-in redundancy are designed to ensure application availability and protect information from accidental loss or destruction. Service restoration is within commercially reasonable efforts and is performed in conjunction with AWS’ ability to provide adequate infrastructure at the prevailing failover location. All of Alation recovery and resilience mechanisms are tested regularly and processes are updated as required.
(d) Alation operates a dedicated 24×7 on-call incident management function, ready to immediately respond to, and mitigate, any Customer impacting issues. This is supported by Alation’s broader internal Availability program which is dedicated to ensuring Alation maintains their system availability.
(e) Alation has no direct reliance on specific office locations to sustain operations. All operational access to production resources can be exercised at any location on the Internet. Alation leverages a range of best-of-breed technologies and other critical cloud tools to deliver uninterrupted remote work for all employees.
(f) All Customer Data deleted by Alation is deleted from datastores in accordance with the NIST Special Publication 800-88 Revision 1, Guidelines for Media Sanitation December 18, 2014 (available at http://nvlpubs.nist.gov/nistpubs/SpecialPublications/NIST.SP.800-88r1.pdf) . With respect to Customer Data encrypted in compliance with this security policy, this deletion may be done by permanently and securely deleting all copies of the keys used for encryption.
7. Business Continuity and Security Incident Response Plan. Alation has implemented a formal procedure for handling security events. When security events are detected they are escalated to an emergency alias, relevant parties are paged, notified and assembled to rapidly address the event. After a security event is contained and mitigated, relevant teams write up a post-mortem analysis, which is reviewed in person and distributed across the company and includes action items that will make the detection and prevention of a similar event easier in the future.
8. Storage and Transmission Security.
(a) Customer data is stored in dedicated datastores.
(b) All data sent to or from Alation is encrypted in transit using TLS 1.2.
(c) Customer Personal Data is encrypted at rest using 256-bit encryption, leveraging current industry standard technology.
(d) All Alation datastores used to process Customer data are configured and patched using commercially reasonable methods according to industry-recognized system-hardening standards.
9. Internal Audits.
(a) Alation regularly tests their security systems and processes to ensure they meet the requirements of this security policy and ensures that the physical and environmental security controls are audited by and external party.
10. Secure Disposal.
(a) Return or Deletion. Alation will permanently and securely delete all live (online or network accessible) instances of the Customer Data within 90 days upon Customer’s in-app deletion request.
(b) Archival Copies. When required by law to retain archival copies of Customer Data for tax or similar regulatory purposes, this archived Customer Data is stored as a “cold” or offline (i.e., not available for immediate or interactive use) backup stored in a physically secure facility.
11. Risk Identification & Assessment.
(a) Application Scans. Alation performs periodic (but no less than once per month) application vulnerability scans. Vulnerabilities shall be remediated on a risk basis.
(b) Third party penetration tests. Alation employs an independent third-party Alation to conduct periodic (but no less than once per year) penetration tests on their web properties.
12. Alation & Services Providers.Prior to engaging new third-party service providers or Alations who will have access to Alation Data, Alation conducts a risk assessment of Alations’ data security practices.
13. Change and Configuration Management. Alation uses continuous automation for application and operating systems deployment for new releases. Integration testing and unit testing are done upon every build with safeguards in place for availability and reliability. Alation has a process for critical emergency fixes that can be deployed to Customers within minutes. As such Alation can roll out security updates as required based on criticality.
1. Where the data exporter is a processor subject to Regulation (EU) 2016/679 acting on behalf of a Union institution or body as controller, reliance on these Clauses when engaging another processor (sub-processing) not subject to Regulation (EU) 2016/679 also ensures compliance with Article 29(4) of Regulation (EU) 2018/1725 of the European Parliament and of the Council of 23 October 2018 on the protection of natural persons with regard to the processing of personal data by the Union institutions, bodies, offices and agencies and on the free movement of such data, and repealing Regulation (EC) No 45/2001 and Decision No 1247/2002/EC (OJ L 295 of 21.11.2018, p. 39), to the extent these Clauses and the data protection obligations as set out in the contract or other legal act between the controller and the processor pursuant to Article 29(3) of Regulation (EU) 2018/1725 are aligned. This will in particular be the case where the controller and processor rely on the standard contractual clauses included in Decision 2021/915.
2. The Agreement on the European Economic Area (EEA Agreement) provides for the extension of the European Union's internal market to the three EEA States Iceland, Liechtenstein and Norway. The Union data protection legislation, including Regulation (EU) 2016/679, is covered by the EEA Agreement and has been incorporated into Annex XI thereto. Therefore, any disclosure by the data importer to a third party located in the EEA does not qualify as an onward transfer for the purpose of these Clauses.
3. This requirement may be satisfied by the sub-processor acceding to these Clauses under the appropriate Module, in accordance with Clause 7.
4. As regards the impact of such laws and practices on compliance with these Clauses, different elements may be considered as part of an overall assessment. Such elements may include relevant and documented practical experience with prior instances of requests for disclosure from public authorities, or the absence of such requests, covering a sufficiently representative time-frame. This refers in particular to internal records or other documentation, drawn up on a continuous basis in accordance with due diligence and certified at senior management level, provided that this information can be lawfully shared with third parties. Where this practical experience is relied upon to conclude that the data importer will not be prevented from complying with these Clauses, it needs to be supported by other relevant, objective elements, and it is for the Parties to consider carefully whether these elements together carry sufficient weight, in terms of their reliability and representativeness, to support this conclusion. In particular, the Parties have to take into account whether their practical experience is corroborated and not contradicted by publicly available or otherwise accessible, reliable information on the existence or absence of requests within the same sector and/or the application of the law in practice, such as case law and reports by independent oversight bodies.