Memorandum of Understanding
THIS MEMORANDUM OF UNDERSTANDING (Agreement) is entered into this _____ day of ____________, 2014, between the American Snowsports Education Association, a Colorado non-profit corporation with its principal place of business at 133 S. Van Gordon Street, #200, Lakewood, CO 80228 (“ASEA“) and the Professional Ski Instructors of America, Rocky Mountain (“PSIA-ROCKY MOUNTAIN”), a Colorado corporation with its principal place of business at: 2300 Mt Werner Circle, Steamboat Springs, Colorado and shall be effective as of _____, 2014 (“Effective Date”).
WHEREAS, ASEA is an organization that and is identified by several trademarks and service marks throughout the United States and other countries, including PROFESSIONAL SKI INSTRUCTOR OF AMERICA, PROFESSIONAL SKI INSTRUCTORS OF AMERICA™, PSIA®, AMERICAN ASSOCIATION OF SNOWBOARD INSTRUCTORS®, AASI™, CENTER LINE™, 32 DEGREES: THE JOURNAL OF PROFESSIONAL SNOWSPORTS INSTRUCTION, THE PROFESSIONAL SKIER®, THE PRO RIDER®, AMERICAN TEACHING SYSTEM®, GO WITH A PRO™, ATML® (collectively, “ASEA Marks”), and owns, uses, and licenses others, including PSIA-ROCKY MOUNTAIN to use the ASEA Marks and certain other marks, trade names, copyrights, designs and trade dress (collectively, “ASEA Properties); and
WHEREAS, PSIA-ROCKY MOUNTAIN and its members use and are identified by the trademarks and service marks held by ASEA; and
WHEREAS, the objectives of ASEA and PSIA-ROCKY MOUNTAIN are to collectively promote snowsports instruction by professional snowsports instructors; provide educational material to the snowsports teaching professional; address problems of concern to the snowsports teaching profession; conduct promotional activities; and enhance the progress of the snowsports teaching profession; and
WHEREAS, the parties hereto have operated cooperatively for several decades to provide their respective separate services to instructors and snowsport schools throughout the United States; and
WHEREAS, the parties desire to formalize their historic relationship in order to ensure better communication, understanding, cooperation and efficiency to their members, the snowsports industry and the public;
NOW, THEREFORE, in consideration of the mutual covenants and promises herein, it is agreed as follows:
1. Term. This Agreement begins on the Effective Date and ends twenty five years after the Effective Date (“Term”). This Agreement shall continue in full force and effect thereafter for subsequent successive like terms unless terminated at the end of the first term by written notice from PSIA-ROCKY MOUNTAIN served not less than sixty (60) days prior to the end of said term.
2. Common Membership. If required by ASEA and PSIA-ROCKY MOUNTAIN, all certified members of the PSIA-ROCKY MOUNTAIN shall maintain membership with ASEA also. Both PSIA-RM and ASEA provide services to their respective memberships, and are committed to snowsports professionals. PSIA-RM will actively promote the existence of and opportunities available through joining ASEA, in recognition of its place within the snowsports industry. If joint membership is not required by ASEA and PSIA-ROCKY MOUNTAIN, individual PSIA-RM members may choose to join ASEA to extend their involvement in their profession beyond their regional participation. PSIA-RM recognizes the value of a national organization, and intends to encourage joining, while respecting our membership’s ability to determine the benefits and services that fulfill their professional needs.
3. Undertakings of the Parties.
3.1. In consideration of the undertaking by PSIA-ROCKY MOUNTAIN set out in paragraph 2 above, ASEA agrees it shall:
3.1.1. Grant to PSIA-ROCKY MOUNTAIN a, non-exclusive, irrevocable license to use the ASEA Marks and ASEA Properties identified above during the Term and in compliance with the use standards provided by ASEA to PSIA-ROCKY MOUNTAIN. Such use standards shall be simple enough to be used and applied by an office staff unskilled in such matters.
3.1.2. Provide to PSIA-ROCKY MOUNTAIN, when necessary, proper forms of the ASEA Marks or the ASEA Properties for PSIA-ROCKY MOUNTAIN’s pre-approved uses during the Term.
3.1.3. Approve preexisting uses as of the date of this agreement.
3.1.4. Promptly review each of PSIA-ROCKY MOUNTAIN’s proposed new uses of the ASEA Marks or ASEA Properties (“Proposed Uses”) and provide PSIA-ROCKY MOUNTAIN with comments or written approval of those Proposed Uses, not to be unreasonably withheld. If ASEA does not notify PSIA-ROCKY MOUNTAIN that ASEA disapproves of a Proposed Use within ten (10) calendar days after receiving that Proposed Use, PSIA-ROCKY MOUNTAIN may assume that ASEA approves that Proposed Use.
3.1.5. Collaborate with PSIA-ROCKY MOUNTAIN and the territories identified in Exhibit A, in the promulgation, maintenance and enhancement of National Standards relative to certification, specialty programs, credentialing, and education of instructors for all disciplines. PSIA-ROCKY MOUNTAIN is solely and exclusively responsible for developing its format and process to educate and examine to the National Standards.
3.1.6. Develop and maintain a working relationship with international associations and bodies dedicated to the advancement of skiing and snowboarding. ASEA shall be exclusively responsible for all such relationships.
3.1.7. Comply with all applicable laws, regulations and other requirements which affect its operations. ASEA has obtained and will continue to maintain at its own expense all permits, licenses, tax-exempt status, corporate filings and other governmental approvals that may be required.
3.1.8. Have no authority of power to change PSIA-ROCKY MOUNTAIN’s geographic area of representation without the consent of PSIA-ROCKY MOUNTAIN.
3.1.9 Continue to maintain the legal aspects and fees related to logos and trademarks as a service to RM that use and contribute to the value they represent.
3.1.10 Fulfill the terms and conditions of this Agreement regardless of the language of the Bylaws of ASEA as they currently exist or may exist in the future.
3.2. PSIA-ROCKY MOUNTAIN agrees that it shall:
3.2.1. Use and ensure the ASEA Marks and the ASEA Properties in the form that ASEA provides, consistent with then-current Standards or as ASEA pre-approves in writing.
3.2.2. Send each new use to ASEA for approval.
3.2.3. Notify ASEA when PSIA-ROCKY MOUNTAIN becomes aware of infringement of an ASEA Mark or ASEA Property, and assist ASEA to protect, in ASEA’s sole discretion and at ASEA’s cost, the infringed ASEA Mark or ASEA Property.
3.2.4. Have the exclusive right to establish, fund and conduct educational events within the service area described in paragraph 5.
3.2.5. Have the exclusive right to provide certification training, credentialing and certification examinations within the service area described in paragraph 5, consistent with the National Standards as published by ASEA.
3.2.6. Be exclusively responsible for all training clinics as well as examinations designed for educational credit, credentialing or certification consistent with section 3.1.5, 3.2.5 and 3.2.7 of this Agreement within the Service Area, as defined below. ASEA will not engage in or offer local training clinics as well as examinations designed for educational credit or certification, without the prior written consent of the PSIA-ROCKY MOUNTAIN within the Service Area, as defined below.
3.2.7. Have the right to select and train clinicians and examiners to staff educational events and administer certification examinations and credentialing at Levels I, II and III and beyond within the service area described in paragraph 5.
3.2.8. Have the right to develop educational materials, specialty programs and to develop and enhance snowsports techniques and teaching and promote the value of professional instruction to the public in accordance with the National Standards adopted by ASEA and PSIA-ROCKY MOUNTAIN and the license to use the ASEA Marks and Properties.
3.2.9 Will issue ASEA membership cards to ASEA members, with the certification level approved by PSIA-ROCKY MOUNTAIN, upon such member’s payments of ASEA dues.
3.2.10. Comply with all applicable laws, regulations and other requirements which affect its operations. PSIA-ROCKY MOUNTAIN has obtained and will continue to maintain at its own expense all permits, licenses, tax-exempt status, corporate filings and other governmental approvals that may be required.
3.2.11 Have the exclusive right to perform, without control or interference from ASEA, the actions and functions attached as Exhibit 2
4. Dues. Prior to changing the membership dues of either ASEA or PSIA-ROCKY MOUNTAIN, the parties agree that they will consult with one another about the amount and timing of any anticipated changes at least 180 days prior to the announcement of such change. During that period, the parties shall explore the impact of the proposed dues change in order to ameliorate any perceived adverse consequences to either. Notwithstanding the duty to confer, the ultimate authority to set the amount of dues, and their due date, rests solely with the individual entity.
5. Service Area. ASEA and PSIA-ROCKY MOUNTAIN agree that PSIA-ROCKY MOUNTAIN shall have the exclusive right to provide on snow educational training, certification training, specialty training, credentialing, and certification examinations to its member snowsport instructors and its member snowsports schools, collectively referred to as “Service Area” as depicted on the attached Exhibit 5.
6. Relationship of Parties.
6.1. Notwithstanding any understanding or representation prior to the date of this agreement to the contrary, it is agreed that ASEA and PSIA-ROCKY MOUNTAIN are separate corporate entities in all respects.
6.2. Nothing in this Agreement shall be construed or interpreted to make ASEA or PSIA-ROCKY MOUNTAIN partners or joint ventures or to make one an agent or representative of the other, or to afford any rights to any third party other than as expressly provided herein. Neither is authorized to bind the other to any contract, agreement or understanding.
7. Termination and Post-Termination.
7.1. Except as otherwise expressly stated in this Agreement, this Agreement terminates when:
7.1.1. The parties mutually agree to terminate the Agreement; or
7.1.2. A legal authority determines that the Agreement violates a regulation or law and the parties mutually agree that they cannot amend the Agreement to comply with that regulation or law.
8. Default: If either party defaults in a material obligation under this Agreement and fails to cure that default within sixty (60) days of receiving a default notice from the non-defaulting party, the matter shall be referred to binding arbitration, as hereafter provided, for resolution.
9. Arbitration. In the event of a dispute arising out of or in connection with this Agreement, both parties shall negotiate in good faith in an effort to resolve the dispute amicably. In the event the parties are unable to resolve the dispute through negotiation within sixty (60) calendar days after written notification by one party to the other as to the existence and nature of such dispute (or such longer period as the parties may agree to), they agree to submit the dispute to binding arbitration. Upon the expiration of the informal resolution period, any claim or dispute of any nature between the parties hereto arising directly or indirectly from the relationship created by this Agreement shall be resolved exclusively by binding arbitration either in Denver, Colorado or Steamboat Springs, Colorado as determined by the non-complaining party, before a single arbitrator who is a member of a panel of former judges or any entity that can provide a former judge to serve as arbitrator. The disputing parties shall share the cost of the arbitrator equally. The sole remedy available to the arbitrator shall be injunctive or other relief designed to cure challenged default. The arbitrator shall not have the authority to terminate this Memorandum of understanding or to substantially alter its provisions or the rights conferred to either party. The decision of the arbitrator shall be final and binding upon both parties. Judgment on the award rendered by the arbitrator may be entered and enforced in any court having jurisdiction thereof.
10. Notice. Any and all notices or other communication required or permitted under this Agreement shall be in writing and deemed to have been duly given if: (i) delivered by hand; (ii) sent by Federal Express or other commercial overnight courier, (iii) sent by fax, email or other electronic means, subject to confirmation receipt requested, if any, addressed as follows:
If to ASEA:
Executive Director and CEO
American Snowsports Education Association
133 S. Van Gordon St, Ste. 200
Lakewood, CO 80228
P: 303-987-9390 F: 303-987-9489
If to PSIA-ROCKY MOUNTAIN:
2300 Mt. Werner Circle
Steamboat Springs, CO 80487
P: 970-879-8335 F: 970-879-6760
or to such other address or addressee as shall have been communicated by notice in accordance with this Section. All such notices shall be deemed to have been received on the actual date of receipt or three (3) days after given as provided above, whichever is sooner.
11. General Provisions.
11.1. Entire Agreement. This Agreement constitutes the entire and exclusive agreement between the parties with respect to the subject hereof and supersedes and replaces any and all prior agreements, understandings, promises and representations, oral or written, made by either party to the other concerning the subject matter hereof. This Agreement may only be amended or modified in writing duly executed by representatives of both parties.
11.2. Assignment. This Agreement may not be assigned or transferred, in whole or in part, by either party except with the prior written consent of the other. If either party assigns this Agreement, this Agreement’s provisions will be binding on and inure to the benefit of the parties to this Agreement and each party’s respective successors and assignees.
11.3. Choice of Law. This Agreement shall be construed and interpreted under the laws of the State of Colorado.
11.4. Severability. If any provision of this Agreement is found to be unenforceable or invalid by any arbitrator or a court of competent jurisdiction, such provision shall be interpreted so as to best accomplish the objectives of such provision and the remainder of this Agreement shall remain valid.
11.5. Waiver. No delay or failure of either Party to exercise any right under this Agreement, and no custom or practice of the parties at variance with the terms hereof, shall constitute a waiver of the Parties’ right to exercise such right or to demand strict compliance with any terms hereof. Waiver by either Party of any particular default of the other Party shall not affect or impair the Parties’ rights with respect to any subsequent default of the same, similar or a different nature.
11.6. Force Majeure. A party will not be liable to the other should its performance under this Agreement be prevented, restricted or interfered with by reason of any circumstance or event beyond the reasonable control of the party affected; provided, the party so affected uses its best efforts to continue, resume or substantially resume performance promptly on the end of the circumstance or event preventing performance.
11.7. Execution in Counterparts This Agreement may be signed in counterparts, and all such counterparts taken together will constitute one and the same instrument.
11.8. Mutual Indemnification and Damage Limitation.
11.8.1. Each party (“Indemnifying Party”) will indemnify and defend the other party, and its respective officers, directors, employees, agents, heirs, successors in interest, and affiliated entities (each an “Indemnified Party”) from and against any and all liabilities, losses, damages, and claims that may be incurred or suffered by one or more Indemnified Parties arising out of third party claims related to the Indemnifying Party’s a) obligations under this Agreement; b) material breach of this Agreement; or c) untrue representations and warranties in this Agreement, unless such liability, loss, damage, claim or expense is attributable to the Indemnified Party’s gross negligence or willful misconduct. This Section survives Agreement termination.
11.8.2. Neither party will be liable to the other for incidental, consequential or punitive damages, including, loss of profit, loss of business or business opportunity.
The parties, intending to be legally bound, sign this Agreement below.
PROFESSIONAL SKI INSTRUCTORS
OF AMERICA- ROCKY MOUNTAIN
The entities associated with ASEA, are as follows:
Alaska (PSIA‑AASI Alaska)
Central (PSIA‑AASI Central)
Eastern (PSIA‑AASI Eastern)
Intermountain (PSIA‑ AASI Intermountain)
Northern Intermountain (PSIA‑ AASI Northern Intermountain)
Northern Rocky Mountain (PSIA‑ AASI Northern Rocky Mountain)
Northwest (Professional Snowsports Instructors of America Northwest)
Rocky Mountain (PSIA‑AASI Rocky Mountain)
Western (PSIA‑AASI Western)
Office General Operations
RM will exclusively oversee their own staff and determine the rate at which their administration can respond to requests by ASEA.
RM can operate on whatever database they choose.
RM is the sole provider of all events in their territory both for educational credit and certification with the exception of national academy and teams training or when a team member is hired independently through ASEA.
RM will exclusively determine the process for running all certification and specialist events; this includes class size, length, staff qualifications, and prerequisites. They agree to test to the National standard.
RM has the right to hold events on what dates and locations as they so choose.
RM has the right to offer Trainer level events also known as Level 4 certification locally should a need arise.
RM maintains the right to print id cards at our option.
RM will set dues at whatever rate they deem necessary.
RM has the right to modify their billing cycle.
We reserve the right to collect or not collect ASEA dues.
RM will not print id cards for non ASEA members.
RM reserves the right to have “local” benefits available to their membership.
RM reserves the right to have a uniform supplier/sponsor if it is a financial benefit to the Ed staff.
Marks, logos style
RM reserves the right to have their own logo that they can use in conjunction with the PSIA/AASI shields.
With the exception of the logo/shield, RM reserves the right to use the font and size of print on all items relative to their business such as but not limited to letterhead, website, brochures, handbooks, and billing.