SB-88 Terms and Conditions
These Terms of Use (the “Terms of Use” or “Terms”) apply to the services and information (collectively, the “Services”) that The Freshwater Trust (“TFT,” “we,” “our”, or “us”) provided as a result of your participation in the California Senate Bill-88 (“SB-88”) Alternative Compliance Program (“Program”). These Terms govern your participation in the Program and your provision of information necessary for TFT to provide the Services. Please read these Terms carefully because they impose legal obligations on you and on TFT, and establish our legal relationship.
PLEASE READ THESE TERMS CAREFULLY BEFORE USING OUR SERVICES. BY PARTICIPATING IN THE PROGRAM, YOU AGREE TO BE BOUND BY THESE TERMS. IF YOU DO NOT WISH TO BE BOUND BY THESE TERMS, THEN PLEASE DO NOT USE OUR SERVICES.
1. Your Agreement.
These Terms govern your participation in the Program. Please read these Terms carefully because they impose legal obligations on you and TFT. By participating in the Program and using our Services, you acknowledge that you have read these Terms and agree to be legally bound by them. If you do not agree with these Terms, then please do not participate in the Program.
If you are agreeing to these Terms on behalf of a company, an organization, or other legal entity (“Your Organization”), then (i) you represent and warrant that you have authority to act on behalf of, and to bind, Your Organization, and (ii) for all purposes in these Terms, the term “you” means Your Organization on whose behalf you are acting.
2. About the SB-88 Alternative Compliance Program.
To comply with the California Senate Bill-88 (“SB-88”) regulations, entities diverting more than 10 acre-feet of surface water per year must measure and report the timing, rate and volume of their water diversions to the California State Water Resources Control Board (“SWRCB”). To facilitate compliance with SB-88 in the unique circumstances of the Sacramento–San Joaquin River Delta, TFT supported a new Delta-wide Alternative Compliance Plan that relies exclusively on OpenET data. This will provide critical data to compare different sources of evaporation and transpiration data (consumptive demand) with local estimates of surface water diversion while maintaining compliance with the regulatory requirements.
3. Termination.
Your participation in the SB-88 Program may be terminated by you or TFT without cause upon thirty (30) days’ prior written notice. In the event of termination, TFT will repay that portion of the Annual Fee (as provided in Section 4) that is unearned at the date of termination.
4. Annual Fee.
You agree to pay TFT in accordance with the annual invoice as a precondition of participating in the Program and receiving the Services. By making this annual payment you agree to comply with and be bound by these Terms. In exchange for payment, TFT will provide your required annual surface water diversion reporting, for the year payment is received, to the SWRCB as required by California Water Code § 1840. TFT shall have no obligation to provide Services unless and until the annual payment is received. Payment is required annually and provision of Services in prior years does not guarantee provision of Services in the current or future years.
5. Diversion Information & Reporting.
In order to receive the Services, you must provide TFT with the required information. Using the submitted information, TFT will use remotely sensed data and modeling to characterize water use within the Delta in order to report calculated water diversion at each participating surface water diversion on your behalf. At your request, TFT may also submit your annual Statement of Water Diversion and Use. If requested by TFT or required by the SWRCB, you agree to complete, sign, and transmit a copy of the applicable forms (e.g., Initial Statement or Supplemental Statement) to TFT for inclusion in annual reporting. Such forms can be emailed to TFT at sb88@thefreshwatertrust.org. In the event that the Alternative Compliance Plan is rejected by the relevant staff of the SWRCB, or is otherwise determined to be inadequate to satisfy the applicable legal requirements at any time during the term of your participation in the Program, TFT will notify you in writing as soon as practicable.
You represent and warrant to TFT that the information you provide to TFT related to the Program will be true and correct to the best of your knowledge. You acknowledge and agree that should you misrepresent or otherwise provides inaccurate information to TFT, that TFT assumes no responsibility or liability for your inaccurate information. You agree to indemnify TFT, without limitation, against any and all claims, costs, or damages resulting from such inaccurate misrepresentations. Failure to provide complete information will result in additional TFT staff research time that is otherwise not included within the cost of the Annual Per-Diversion Fee. TFT will notify you of incomplete information and provide you with an opportunity to respond with the omitted information. In the event that you fail to supply complete information within seven (7) business days of TFT’s notice, TFT will invoice you on an hourly basis at a rate of $80.00 per hour for staff time and resources spent pursuing incomplete information. You acknowledge and agree to pay any such additional costs within 30 days of receiving TFT’s invoice.
6. Privacy Policy.
You acknowledge that certain material and information supplied to TFT in connection with your participation in the Program and TFT’s performance of the Services may be considered Confidential Information. “Confidential Information” means information disclosed or accessible to a party or acquired by a party as a result of its relationship with the other party and which is not in the public domain or otherwise required to be publicly disclosed by applicable law. Confidential Information does not include any information that is or becomes known to the public through no action by TFT, you approved for release, or is independently developed or determined by a third party. TFT agrees to hold Confidential Information in confidence (regardless of whether the information was disclosed in verbal, written, electronic, digital, visual, or other form), not to make use of it other than for the performance of its obligations hereunder, and not to release or disclose it to any third party except as required for the provision of the Services. TFT further agrees to notify you in writing of any circumstances within our knowledge relating to any unauthorized possession, use, or knowledge of such Confidential Information.
7. Warranty Disclaimer.
TFT DISCLAIMS: (i) ALL WARRANTIES, EXPRESS OR IMPLIED, INCLUDING ANY IMPLIED WARRANTIES OF MERCHANTABILITY, FITNESS FOR A PARTICULAR PURPOSE, AND NON-INFRINGEMENT; (ii) ANY RESPONSIBILITY OR LIABILITY FOR THE ACCURACY, CONTENT, COMPLETENESS, OR LEGALITY OF INFORMATION ARISING FROM OR RELATING TO THE PROGRAM; AND (iii) ANY RESPONSIBILITY OR LIABILITY FOR HARM RESULTING FROM RELIANCE UPON INFORMATION FROM THE PROGRAM. YOU EXPRESSLY AGREE THAT THE PROGRAM IS RELIANT UPON YOUR PROVISION OF ACCURATE INFORMATION AND ANY INACCURACIES ARE NOT ATTRIBUTABLE TO TFT. YOU EXPRESSLY AGREE TO PARTICIPATE IN THE PROGRAM AT YOUR SOLE RISK.
8. Limitation of Liability.
UNDER NO CIRCUMSTANCES INCLUDING, BUT NOT LIMITED TO, BREACH OF CONTRACT, TORT, OR NEGLIGENCE, WILL TFT BE LIABLE TO YOU FOR ANY DIRECT, INDIRECT, SPECIAL, INCIDENTAL, PUNITIVE, EXEMPLARY, OR CONSEQUENTIAL DAMAGES (INCLUDING LOST PROFITS) THAT ARISE OUT OF OR ARE RELATED TO YOUR USE OF THE SERVICES OR PARTICIPATION IN THE PROGRAM.
Notwithstanding the foregoing, if TFT is found liable, TFT’s entire liability for all claims related to these Terms and/or the Services will not exceed the amount of any actual direct damages incurred by Client up to the amounts paid for the Services that are subject of the claim, regardless of the basis of the claim. This limit applies collectively to TFT, its subsidiaries, contractors, and suppliers.
9. Indemnity.
You agree to defend, indemnify, and hold TFT and its affiliates, officers, directors, agents, and employees harmless from and against any liability to third parties, including reasonable attorneys’ fees, arising from or related to your breach of these Terms.
10. Modifications to these Terms.
From time to time, we may change these Terms for our business purposes and to comply with changes in applicable law. In the event of substantive or material changes, we may communicate these changes to you by posting the updated Terms on our website and/or notifying you of the change via email or other methods. Any changes to these Terms shall take effective proactively. Regardless of whether we have provided you with notice other than by posting updated Terms on the Platform, your subsequent acceptance of these Terms pursuant to Section 1 (Your Agreement) constitutes your agreement to be bound by the Terms, as updated.
11. Assignment.
These Terms shall not be assignable by you, in whole or in part, without our prior written consent. TFT reserves the right to assign its rights and obligations under these Terms without your consent.
12. Miscellaneous.
These Terms shall be governed in all respects by the laws of the State of California without giving effect to its conflicts of law provisions. Both parties submit to the personal jurisdiction of and venue in the state and federal courts located in the judicial district that includes Sacramento, CA. The parties further agree that any cause of action arising under these Terms shall exclusively be brought in such courts. If any provision of these Terms is held to be invalid or unenforceable, then such provision shall be struck and the remaining provisions shall be enforced. Headings are for reference purposes only and in no way define, limit, construe, or describe the scope or extent of such section. TFT’s failure to act with respect to a breach by you or others does not constitute a waiver of its right to act with respect to subsequent or similar breaches. This agreement and the terms and conditions contained herein set forth the entire understanding and agreement between TFT and you with respect to the subject matter hereof and supersede any prior or contemporaneous understanding in any form. No right or cause of action for any third party is created by these Terms or any occurrence related to or arising from your participation in the Program or TFT’s provisions of the Services.
13. Contact Us.
TFT strives to be open and transparent in its communication and engagement with Program participants. If you have any questions about these Terms, the SB-88 Program, TFT’s practices, or any other related matter, please contact us at sb88@thefreshwatertrust.org, or by other means of communication as described on our website or in other correspondence between you and TFT.
14. Effective Date.
The effective date of these Terms is February 1, 2024.