Affiliation Agreement Summary

RM members:

I am often asked what the Affiliation Agreement process was about and what exactly PSIA-RM-ASIA accomplished with the agreement we signed?  Here is a brief, yet hopefully clear explanation.

The ASEA (American Snowsports Education Association) originally provided their version of an Affiliation Agreement to PSIA-RM-AASI in 2011. They requested we sign it immediately as a condition of using the ASEA’s trademarked logos.  While we saw the value in using the ASEA’s logos, we felt we could not sign the agreement, as written, because it specified a transfer of our ownership rights in many key intellectual properties.  The most troublesome provisions were the first WHEREAS paragraph, and Section 3.2.5.  The first WHEREAS paragraph noted that the ASEA owned an undefined group of properties labeled the “ASEA Properties.”  Paragraph 3.2.5 then required we acknowledge the ASEA owned the “ASEA Properties” exclusively.

RM sought counsel to clarify exactly what those two paragraphs meant.  We were subsequently advised there was a real risk that the two provisions, taken together, could allow the ASEA to argue at some later date, that it (the ASEA) controlled exclusively all the books, pamphlets, training guides, and other materials necessary for RM to operate and control its operations.  Our position was (and remains) that many of those materials are in fact jointly owned between RM, other divisions, the ASEA, and perhaps individuals who have contributed for many years. We simply could not agree to the Affiliation Agreement’s language asking us to cede total ownership to the ASEA.  Our primary concern was that the ASEA’s original Affiliation Agreement would have given the ASEA total control over how RM operates because if the ASEA owned all the properties outright, it could simply pull use of the materials unless RM complied with all/some of the ASEA’s requests, and/or demands.

With those concerns in mind, we negotiated and debated with the ASEA for nearly three years on the meaning of the Affiliation Agreement.  The ASEA refused to change any of its key terms.  In particular, the ASEA refused to define the term “ASEA Properties.”  It consistently argued, through their attorney(s), that RM was merely a division/subsidiary of the ASEA, that the ASEA owned all the training materials and intellectual properties, and that it did have the right to control RM.

Eventually, we hired a law firm (Holland-Hart) to evaluate the situation.  After months of negotiations the ASEA finally agreed to insert Section 7.4 into the agreement.  That paragraph acknowledges that nothing in the Affiliation Agreement is meant to transfer ownership of any properties, including any with partial ownership.  In effect, Section 7.4 prevents the ASEA from ever arguing that RM has ceded ownership of all the properties necessary for running RM operations.  Additionally, we inserted Paragraph 7.1.  This Paragraph acknowledges that the ASEA, and RM, are completely separate entities. PSIA-RM-AASI is not a subsidiary of the ASEA, and the ASEA neither owns, nor controls RM.

Ultimately, the effect of the changes we made, and therefore the final document we signed with the ASEA, ensures that PSIA-RM-AASI continues to have control over the ownership rights it has in the various intellectual properties.  If, in the years to come, the ASEA should contend that the Affiliation Agreement gives the ASEA exclusive ownership of the various properties required to operate our business, RM can, and should argue, that Sections 7.4, and 7.1 refute that contention.

It is our belief that with the Affiliation Agreement we have signed with the ASEA, PSIA-RM-AASI is positioned to control our own materials and operate our business as we see fit.  While the ASEA may argue it owns outright the properties RM needs to run its operation, the Affiliation Agreement no longer supports that contention.

Joel Munn Pres. PSIA-RM-AASI

 

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