May 1, 2024
As a member of the Sustainable Aviation Buyers Alliance (“SABA”), Watershed Technology, Inc. (“Watershed”) is pleased to be able to offer its sustainable airline fuel certificate (“SAFc”) buyers certain membership benefits in SABA (the “SABA Benefits”) as described in the sustainable fuel purchase confirmation under the Watershed Master Environmental Credit Agreement or Environmental Portfolio Purchase Agreement, as applicable (“Credit Purchase Agreement”). This SABA Annex supplements the provisions of the Credit Purchase Agreement for Watershed buyers that elect to receive SABA Benefits. This Annex also describes certain additional provisions that Watershed buyers receive from Watershed’s SAFc supplier for SAFc’s that are purchased through the SABA purchasing network. For purposes of this Annex, a Watershed buyer that buys SAFc and elects SABA Benefits is referred to as the “Buyer.” Other capitalized terms not defined herein shall have the meaning in the Credit Purchase Agreement.
For clarity, Environmental Attributes (as defined in the Credit Purchase Agreement) with respect to SAFc mean the decoupled sustainability characteristics of one metric ton of neat sustainable aviation fuel (“SAF”), including the life cycle carbon dioxide equivalent (CO2e) emissions reductions as compared to conventional jet fuel, and tracked using a book-and-claim system under the Sustainable Aviation Buyers Alliance Sustainability Framework (the “SABA Specifications”). SAF is renewable or waste-derived drop-in aviation fuel that meets the specifications and sustainability criteria of the SABA Specifications. SAFc (i) convey the right to report Scope 3 end-user greenhouse gas reductions but not Scope 1 greenhouse gas reductions, which are retained by other actors in the supply chain according to the rules of the SABA Specifications; (ii) do not include title to any Renewable Identification Numbers (RINs), Low Carbon Fuel Standard (LCFS) credits, or other environmental credits; (iii) cannot be used as part of a renewable energy certificate program or as any other regulated carbon emission compliance instrument; and (iv) are not part of any renewable portfolio standard or any other local, state, provincial, federal, national or supranational law, rule, regulation or other governance regime relating to renewable energy. SAFc are correlated to an amount of greenhouse gas reductions based on a calculation of carbon intensity as determined under the SABA Framework, and carbon intensity may be adjusted on an ex post basis.
SABA Pass-Through Provisions:
Watershed buyers that elect to receive the SABA Benefits shall be deemed to agree to the following additional conditions required of Watershed’s buyers under the SABA membership agreement between Watershed, Environmental Defense Fund, Inc. (“EDF”) and Rocky Mountain Institute (“RMI”):
2. Buyer acknowledges that SABA’s governance processes are maintained by SABA and documentation of those processes can be accessed upon request to SABA.
3. Buyer acknowledges that SABA may cite Buyer as a member of SABA (subject to Buyer’s prior review and approval) and may use Buyer’s name and logo in SABA marketing materials and communications, subject to Buyer’s prior review and written approval. Buyer’s logo will be shown in alphabetical order where relevant, for example in marketing material or on www.flysaba.org. Additional communications may include blog posts, media articles, news releases, social media, and videos. Buyer will provide SABA with its logo when giving its approval.
4. Buyer acknowledges that Watershed may elect to provide SABA with non-confidential information regarding SAFc purchases for use by SABA in (for example) deal databases, case studies, and other resources for the SABA community toward the goal to create and maintain a long-term collaborative and productive relationship between SABA and Watershed.
5. Buyer acknowledges that: all deliverables, work product, and any tangible works of authorship created or developed by SABA (“SABA IP”) shall be owned by SABA, free of any claim by Watershed or any other person; that Watershed, RMI and EDF shall remain the sole and exclusive owner of all intellectual property rights in and to all tangible and intangible subject matter that each party hereto developed or acquired prior to the commencement or independently of the SABA membership agreement; that EDF and RMI reserve the right to make SABA IP publicly accessible on a case-by-case basis; that EDF and RMI have granted Watershed a nonexclusive license and sublicense to use SABA IP for purposes of carrying out the SABA membership agreement; that nothing herein shall be construed as granting Watershed any rights to the intellectual property of SABA, other than for the specific purpose of performing the SABA membership agreement; and that Watershed has agreed that it will not knowingly share SABA products or SABA IP outside the SABA community without the express written consent of SABA, which may decline to grant such consent in its sole discretion.
6. Buyer acknowledges that nothing in the SABA membership agreement or in any other documents shall be intended to create, and shall not be construed to create, the relationship of a partnership or joint venture or to make the parties to the SABA membership agreement agents or representatives of each other.
7. Buyer acknowledges that except as expressly provided in the SABA membership agreement, all services and deliverables provided by SABA are provided on an as-is basis, and RMI and EDF (i) make no representations or warranties of any kind whatsoever, express or implied, in connection with the SABA membership agreement; (ii) disclaim any warranty that the services or deliverables provided under such agreement will be error free or uninterrupted or that all errors will be corrected; and (iii) disclaim any and all warranties with respect to the services and the deliverables as to merchantability, accuracy of any information provided, fitness for a particular purpose, title, and non-infringement.
8. BUYER ACKNOWLEDGES THAT EXCEPT WITH RESPECT TO DAMAGES ARISING FROM A PARTY’S GROSS NEGLIGENCE OR WILLFUL MISCONDUCT OR BREACH OF THE CONFIDENTIALITY PROVISION, IN NO EVENT WILL (I) ANY PARTY TO THE SABA MEMBERSHIP AGREEMENT BE LIABLE FOR ANY INDIRECT, CONSEQUENTIAL, INCIDENTAL, OR SPECIAL DAMAGES (INCLUDING LOSS OF BUSINESS PROFITS) ARISING FROM OR RELATED TO SUCH AGREEMENT; AND (II) A PARTY’S LIABILITY TO THE OTHER PARTY FOR BREACH OF THE SABA MEMBERSHIP AGREEMENT EXCEED THE FEES PAID OR PAYABLE UNDER THIS AGREEMENT.
9. Buyer acknowledges that SABA members (including Buyer if it elects to become a SABA member) may receive or have access to data and information that is confidential and proprietary to RMI, EDF, or from the SABA community. All such data and information (“Confidential Information”) made available to, disclosed to, or otherwise made known to a member in connection with the SABA membership agreement shall be considered the sole property of its respective owner; Buyer shall not disclose Confidential Information to any third party without the prior written consent of its respective owner; Buyer shall not use or duplicate any proprietary information belonging to or supplied by the owning party, except as authorized. SABA has also acknowledged in the SABA membership agreement that it may receive or have access to data and information that is confidential and proprietary to Buyer, which it shall consider as the sole property of Buyer, and which it may only disclose, use or duplicate for internal, confidential use consistent with SABA’s mission, and SABA has further agreed that disclosure, use or duplication of Buyer’s data or information to any third party for any other purpose requires prior written consent of Buyer. Confidential Information shall not include information that (i) is or becomes generally available to the public other than through a breach of the SABA membership Agreement; (ii) was independently developed by the party receiving the Confidential Information (the Receiving Party) without using any other Confidential Information, to the extent that it can be proven by documented evidence by Receiving Party to any other party; or (iii) is communicated in writing to Receiving Party by a third party that had no confidentiality obligations with respect to such information, to the extent that it can be proven by documented evidence by Receiving Party to any other party. Nothing herein shall be construed to prevent disclosure of Confidential Information as may be required by applicable law or regulation, or pursuant to the valid order of a court of competent jurisdiction or an authorized government agency, provided that the disclosure does not exceed the extent of disclosure required by such law, regulation, or order. These obligations of confidentiality and non-disclosure shall remain in effect for a period of two (2) years following the termination of the SABA membership agreement.
SAFc Supplier Representations:
In addition, for SAFc’s that are purchased through the SABA purchasing network, Watershed’s supplier has made the following representations and warranties (paraphrased herein) under the applicable Sustainable Aviation Fuel Certificate Purchase Agreement between Watershed and the fuel supplier for the benefit of Watershed’s buyer (capitalized terms are as defined in such SAFc purchase agreement):
(a) the underlying SAF meets the SABA Specifications and all SAFc certificates have been created and are consistent with the requirements of the Registry;
(b) the supplier has title to, and the right to transfer or retire, the SAFc certificates, and will transfer to the Watershed good and marketable title to each SAFc certificate and associated environmental attributes;
(c) the SAFc certificates and associated environmental attributes have not been sold to, transferred to, retired, or claimed by any other person;
(d) the SAFc certificates delivered are free and clear of, and not subject to, any lien or encumbrance;
(e) the supplier has not and shall not make any claim inconsistent with the environmental attributes or that would constitute double counting;
(f) the SAFc certificates delivered will vest in Watershed and Watershed will (x) have the exclusive rights to make all claims as to the SAFc certificates and associated environmental attributes and (y) have the right to report and register, as applicable, the exclusive ownership of the SAFc certificates and associated environmental attributes with any registry, system, agency, authority, or other party, either voluntarily or in compliance with any present or future domestic, international, or foreign law, regulation, registry or program, and upon delivery Watershed or its designee shall have the right to all claims with respect to the SAFc certificates and associated environmental attributes, each of which Watershed will pass on to Buyer;
(g) each project generating SAF is qualified in all respects to create SAFc certificates;
(h) the owner of each project has obtained, and will maintain, all necessary regulatory approvals, meets all requirements of the applicable SAF standard, and has complied with, and shall remain in compliance with, all applicable laws, including environmental health and safety regulations and anti-corruption and anti-terrorism laws;
(i) all information provided to Watershed by the supplier is true and accurate in all material respects including but not limited to all information concerning project registration, recordation, insurance and reporting; and
(j) the supplier has no knowledge of any facts or circumstances that could materially adversely affect its ability to perform its obligations hereunder, including with respect to its creditworthiness.