ADEM Form 35 (ADEM-eDWRS-2) "Terms and Conditions Agreement" - Alabama

What Is ADEM Form 35 (ADEM-eDWRS-2)?

This is a legal form that was released by the Alabama Department of Environmental Management - a government authority operating within Alabama. As of today, no separate filing guidelines for the form are provided by the issuing department.

Form Details:

  • Released on May 1, 2014;
  • The latest edition provided by the Alabama Department of Environmental Management;
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Form ADEM-eDWRS-2
C. Form ADEM-eDWRS-2: Terms and Conditions Agreement (TCA)
TERMS AND C ONDITIONS AGREEMENT FOR REPORTING REGULATORY DATA
USING ELECTRONIC DATA INTERCHANGE TO ADEM USING eDWRS (the
“Agreement”), by and between ADEM, Montgomery, Alabama, a S tate governmental agency,
and reporting party (“Certifier”) who has signed and returned the Terms and Conditions
Agreement (TCA) Memorandum, included in today's notice referenced below, is effective on the
date the initial PIN(s) is created, after the receipt and acceptance of Certifier's signed TCA
Memorandum.
1. RECITALS
The intent of this agreement is to create legally binding obligations upon t he parties using
electronic data interchange (EDI) and eDWRS, to ensure that (a) use of any electronic
functional equivalent of documents referenced or exchanged under this agreement shall be
deemed an acceptable practice in the ordinary course of Certifier-to-ADEM environmental
reporting and (b) such electronic records shall be admissible as evidence on the same basis as
paper documents. The parties intend to be legally bound by them.
2. VALIDITY AND ENFORCEABILITY
2.1
This Agreement has been executed by the parties to evidence their mutual intent to
create binding regulatory reporting documents using electronic transmission and
receipt of such records.
2.2
Any records properly communicated pursuant to this Agreement shall be considered to
be a “writing” or “in writing”; and any such records which contain or to which there is
affixed, a Signature, as defined by paragraph 8 of
this Agreement, (“Signed
Documents”) shall be deemed for all purposes (a) to have been “signed” and (b) to
constitute an “original” when printed from electronic files or records established and
maintained in the normal course of business.
2.3
The conduct of the parties pursuant to this Agreement, including the use of Signed
Records properly communicated pursuant to the Agreement, shall, for all legal
purposes, evidence a course of dealing and a course of performance accepted by the
parties in furtherance of this Agreement.
2.4
The Certifier agrees not to contest the validity or enforceability of Signed Documents
under the provisions of any applicable law relating to whether certain agreements are to
be in writing or signed by the party to be bound t hereby. Signed Documents, if
introduced as evidence on paper in any judicial, arbitration, mediation or administrative
proceedings, will be admissible as between the parties to the same extent and under the
same conditions as other business records originated and maintained in documentary
form. Neither party shall contest the admissibility of copies of the Signed Documents
under the Alabama Rules of Evidence as inadmissible nor in violation of either the
business records exception of the rule on hearsay, or the best evidence rule, or on the
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Form ADEM-eDWRS-2
C. Form ADEM-eDWRS-2: Terms and Conditions Agreement (TCA)
TERMS AND C ONDITIONS AGREEMENT FOR REPORTING REGULATORY DATA
USING ELECTRONIC DATA INTERCHANGE TO ADEM USING eDWRS (the
“Agreement”), by and between ADEM, Montgomery, Alabama, a S tate governmental agency,
and reporting party (“Certifier”) who has signed and returned the Terms and Conditions
Agreement (TCA) Memorandum, included in today's notice referenced below, is effective on the
date the initial PIN(s) is created, after the receipt and acceptance of Certifier's signed TCA
Memorandum.
1. RECITALS
The intent of this agreement is to create legally binding obligations upon t he parties using
electronic data interchange (EDI) and eDWRS, to ensure that (a) use of any electronic
functional equivalent of documents referenced or exchanged under this agreement shall be
deemed an acceptable practice in the ordinary course of Certifier-to-ADEM environmental
reporting and (b) such electronic records shall be admissible as evidence on the same basis as
paper documents. The parties intend to be legally bound by them.
2. VALIDITY AND ENFORCEABILITY
2.1
This Agreement has been executed by the parties to evidence their mutual intent to
create binding regulatory reporting documents using electronic transmission and
receipt of such records.
2.2
Any records properly communicated pursuant to this Agreement shall be considered to
be a “writing” or “in writing”; and any such records which contain or to which there is
affixed, a Signature, as defined by paragraph 8 of
this Agreement, (“Signed
Documents”) shall be deemed for all purposes (a) to have been “signed” and (b) to
constitute an “original” when printed from electronic files or records established and
maintained in the normal course of business.
2.3
The conduct of the parties pursuant to this Agreement, including the use of Signed
Records properly communicated pursuant to the Agreement, shall, for all legal
purposes, evidence a course of dealing and a course of performance accepted by the
parties in furtherance of this Agreement.
2.4
The Certifier agrees not to contest the validity or enforceability of Signed Documents
under the provisions of any applicable law relating to whether certain agreements are to
be in writing or signed by the party to be bound t hereby. Signed Documents, if
introduced as evidence on paper in any judicial, arbitration, mediation or administrative
proceedings, will be admissible as between the parties to the same extent and under the
same conditions as other business records originated and maintained in documentary
form. Neither party shall contest the admissibility of copies of the Signed Documents
under the Alabama Rules of Evidence as inadmissible nor in violation of either the
business records exception of the rule on hearsay, or the best evidence rule, or on the
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Form ADEM-eDWRS-2
basis that the Signed Documents were not originated or maintained in documentary
(paper) form.
3. DATE OF RECEIPT
A Document shall be deemed to have been properly received by ADEM when it is accessible
by ADEM and adheres to the XML protocol as modified by ADEM, if applicable. No
Document shall satisfy any reporting requirement or be of any legal effect until it is received.
4. VERIFICATION
Upon receipt of a Document, the eDWRS shall process the Document to make it accessible
to ADEM. T he status of each submission is available for review by the Certifier on t he
eDWRS website. If the submission has been rejected by ADEM, the Certifier is responsible
for resending the Document.
5. SUBMISSION
If the Document is rejected by ADEM, then the Certifier must replace the document. If the
eDWRS website does not indicate that the Document has been submitted, the Certifier should
submit the Document.
6. INABILITY TO SUBMIT
Circumstances, both foreseeable and unforeseeable, may prevent a reporting party from
conducting EDI. Nevertheless, no C ertifier will be excused from the requirement to file
reports with the Agency by the appropriate regulatory deadline. If a party is unable to
electronically file a required report by such deadline, it must notify ADEM of the situation.
7. SIGNATURE
The Certifier shall adopt as its signature an electronic identification consisting of symbols
(i.e., the Personal Identification Number [PIN]) that is affixed to or contained in each
Document submitted by the Certifier (“Signature”). The Certifier agrees that any such
Signature affixed to or contained in any submitted Document shall be sufficient to verify
such party originated and possessed the requisite authority both to originate the transaction
and to verify the accuracy of the content of the document at the time of submittal. Unless
otherwise specified in the TCA, affixing the Personal Identification Number (PIN) associated
with the Certifier’s user account in the eDWRS to any transmitted Document constitutes a
valid Signature. The Certifier expressly agrees to sign each and every report submitted by
using their PIN, and that the use of their PIN constitutes certification of the truth and
accuracy, upon penalty of perjury, of the information contained in each such report. T he
Certifier also expressly agrees that each report submitted by using their PIN constitutes their
agreement with the certification statement.
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8. DEFINITIONS
Whenever used in this Agreement or any documents incorporated into this Agreement by
reference, the following terms shall be defined as follows:
8.1
Compromise: When the PIN is intentionally or unintentionally disclosed to individuals
and organizations that are not authorized to know or use the PIN.
8.2
Data: Factual information stored in or used by a computer, especially information
organized for analysis or used to reason or make decisions.
8.3
Document/Record: Information that is inscribed on a tangible medium or that is stored
in an electronic or other medium and is retrievable in perceivable form.
The
Documents is intended to satisfy the reporting requirements of the Permittee.
8.4
Electronic Agent: A computer program designed, selected or programmed by a party
to initiate or respond to electronic messages or performances without review by an
individual. An electronic agent acts within the scope of its agency if its performance is
consistent with the functions intended by the party who utilizes the electronic agent.
8.5
Electronic Transaction: A record generated or communicated by electronic, optical or
other analogous means for transmission from one information system to another. The
term includes electronic data interchange and electronic mail.
8.6
Message: Data structured in accordance with the protocol specified in the Guidelines
and transmitted electronically between the parties and relating to a Transaction.
8.7
Personal Identification Number (PIN): Each PIN will consist of a sequence of alpha-
numeric characters.
8.8
Report: T he Document required by the ADEM Drinking Water Permit Program
including but not limited to chemical monitoring reports, monthly operating reports
(MORs), consumer confidence reports (CCRs) and bacteriological reports.
8.9
Signed: For the purposes of EDI, a transaction is “signed” if it in cludes a symbol
and/or action that is adopted or performed by a party or its electronic agent with the
present intent to authenticate or manifest assent to a record, a performance, or a
message. Actions or symbols adopted or performed by an electronic agent serve to
authenticate with present intent a r ecord or message on behalf of a p arty if the party
designed, programmed or selected the electronic agent with an intent that the agent
produce the result and the electronic agent performs in a manner consistent with its
intended programming. That a record or message is signed is conclusively presumed as
a matter of law if the parties agreed to an authentication procedure and the symbol or
action taken complies with that procedure. Otherwise, that a document is signed may
be proved in any manner including by a showing that a procedure existed by which a
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party must of necessity have taken an action or executed a symbol in order to have
proceeded further in the use or processing of the information.
8.10 Submission Log: Must be retained for all parties using eDWRS for reporting purposes.
The Submission Log includes the date, time, and the file submitted; it also documents
the person who certified the submission. The Certifier can verify that an official log of
all submissions is maintained without any modifications, as described in the ADEM
eDWRS User’s Guide.
8.11 User Guide: The ADEM eDWRS User’s Guide
9. EDI TRANSACTION PARAMETERS
Each party may electronically transmit to or receive from the other party in the format set by
ADEM. All Documents/Reports shall be transmitted in accordance with the standards set
forth herein and in the ADEM eDWRS User’s Guide. Any submission of data that is not a
Document/Report (i.e., that is not one of the specified transaction sets) shall have no force or
effect between the parties.
9.1
Implementation Guidelines: All Documents transmitted between the parties shall
adhere to the Protocol established in the ADEM eDWRS User’s Guide, the ADEM
eDWR Transmission Protocol, and all modifications of these documents.
9.2
Modifications of Standards: Whenever ADEM intends to upgrade to a new version of
the data exchange standard or modify the Guidelines, ADEM shall give notice of its
intent and shall establish a conversion date. The Certifier shall have a minimum of
sixty (60) days from the conversion date to upgrade to the new standard. ADEM may
discontinue support of the previous standard no sooner than ninety (90) days after the
conversion date.
10. SYSTEM AND OPERATION EXPENSES
Each party, at its own expense, shall provide and maintain the equipment, software, services
and testing necessary to effectively and reliably transmit and receive Documents.
11. SECURITY
The parties shall take reasonable actions to implement and maintain security procedures
necessary to ensure the protection of submission against the risk of unauthorized access,
alteration, loss or destruction including, but not limited to: protecting the secrecy of password
and PIN.
11.1 Creation of PIN: Where ADEM requires certification to ensure the authenticity of
electronically submitted documents, ADEM will require the Certifier to use a PIN.
ADEM will issue a new PIN at request of the PIN holder. If a PIN has been
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compromised, it will be suspended upon notification (by telephone or otherwise) from
the PIN holder.
11.2 Protection of PIN: Each party must protect the security of their PIN from compromise
and shall take all necessary steps to prevent its loss, disclosure, modification, or
unauthorized use. The Certifier shall notify ADEM immediately if there is reason to
believe the security of any PIN has been compromised. If ADEM has reason to believe
that PIN security has been compromised, the account will be disabled. Also, the
Certifier is responsible for immediately notifying ADEM of termination of
employment or reassignment.
12. MISDIRECTED AND CORRUPTED TRANSMISSIONS
If ADEM has reason to believe that a Document is not intended for ADEM or is corrupted,
ADEM shall notify the Certifier and overwrite the document with the reason for removal
(where allowed by applicable law). The original record of the Document’s receipt will be
retained and verification will indicate that the document has been altered.
13. COMMUNICATIONS CONNECTIONS
Unless otherwise stipulated in program-specific notice, Documents shall be transmitted
electronically to each party through a Internet service provider (ISP). The Certifier assumes
all risks associated with their interaction with the ISP.
13.1 ISP Liability Apportionment: Each party shall be responsible for ensuring the
correctness of its transmission except as otherwise provided in this Agreement.
13.2 Records Transmitted Through Provider: The parties agree that either of them may
have access to Providers' copies of the records, at the expense of the requesting party.
14. RECORD RETENTION AND STORAGE.
Nothing herein is intended to release the Certifier from or waive any requirement of law
applicable to the Certifier pertaining to record or document retention, or to create new or
additional requirements for retention of records or documents except as specifically noted
herein or in the supporting documents. The sender shall retain all records, regardless of the
medium on w hich they are recorded, used in the derivation of the Documents/Reports or
information therein transmitted pursuant to this Agreement for the period, which would be
required for functionally equivalent paper records.
15. CONFLICTING TERMS AND CONDITIONS
This Agreement and the registration forms required in the ADEM eDWRS Participation
Package constitute the entire agreement between the parties. As the parties develop
additional capabilities respecting EDI, additional addenda may be added to this Agreement.
Upon the effective date, each Addendum shall be appended to this Agreement. If the Certifier
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