Associate Agreement

Last Update; November 24nd, 2008

Service Management Society, Inc. (“SM-S”) Associate Agreement

IMPORTANT NOTICE: TO BECOME AN ASSOCIATE OF THE SM-S, YOU MUST AGREE TO THE TERMS OF THIS ASSOCIATE AGREEMENT.

This agreement has 16 sections:

  • Definitions
  • Program Participation
  • Protection of Account Information
  • Limitations on Use and Acceptable Conduct
  • Appropriate Use and Management of Content
  • Confidential Information
  • Indemnity
  • Term and Termination
  • DISCLAIMER OF WARRANTIES
  • LIMITATION OF LIABILITY
  • Age and Responsibility
  • Applicable Law
  • Notifications
  • Mediation and Arbitration of Disputes
  • General Provisions
  • Acknowledgement

Section 1 - Definitions

  1. “Associate Program” or “Program” means the SM-S Associate Program which is intended to provide a structured means for interacting on topics related to the core SM-S programs and other topics of mutual interest.
  2. “Online Services” means the superset of web servers, forums, support services, utilities or other online capability that the SM-S uses to implement the Program and conduct its affairs. SM-S is the operator of these services.
  3. "You”, “your” or “the Associate” means you or, if you are accepting on behalf of your employer or member account entity, then “you” or “your” means that employer or entity and affiliates.
  4. “Participation” means any actions or activities that are part of the Program. This includes but is not limited to the use of our Online Services.
  5. “SM-S”, “we” or “us” means Service Management Society, Inc., the operator of the Program.
  6. “Account”, “username” or “user” means any account used to access Online Services.
  7. “Account Information” means any valid account name or system user identification and the information associated with it that includes but is not limited to the password, server name, IP address, domain name, certificate, access keys, tokens or other identity verification authentication means.
  8. “Content” means any image, information, document, posting, software, models, diagrams or other resources created with, for, by or accessed through using the Online Services.
  9. “Agreement” means this Associate Agreement which governs your participation in the Program.

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Section 2 - Program Participation

  1. As part of your participation in this Program, we are providing you access to and use of the subscription portions of the Online Services on condition that you accept the terms and conditions of this Agreement and the Terms of Use. Your participation in the Program and the usage of the Online Services is granted on an individual basis.
  2. By accessing or using the subscription portions of the Online Services, you agree to the terms and conditions of this Agreement and the Terms of Use. 
  3. If you do not agree to accept and abide by this Agreement and the Terms of Use, you should not access or use the subscription portions of the Online Services. In the event of any inconsistency between this Agreement and the Terms of Use, the terms of this Agreement shall govern.
  4. We reserve the right, in our discretion, to change or modify all or any part of this Agreement at any time, effective immediately upon notice published on the Online Services.
  5. Your continued use of the subscription portions of the Online Services after such notice constitutes your binding acceptance of the terms and conditions in this Agreement, including any changes or modifications we may make as permitted above.
  6. If at any time the terms and conditions of this Agreement are no longer acceptable to you, you should immediately cease use of the subscription portions of the Online Services.
  7. Your participation in the Program and use of our Online Services is expressly subject to the terms and conditions this Agreement. If we become aware of any failure to comply with any of the terms or conditions, we may immediately terminate without refund your participation in the program and your access to the Online Services.

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Section 3 - Protection of Account Information

A. You acknowledge and agree that:

  1. The Account Information we provide to you so that you may access and utilize the subscription portions of the Online Services and any password selected by and used by you in conjunction with your account are to be kept secret and confidential.
  2. You shall not disclose such login name or password to any other party without our express written permission.
  3. You will be responsible for each and every access or use of the subscription portions of the Online Services that occurs in conjunction with your Member Name and such passwords, and that we are authorized to accept your username and password as conclusive evidence that you have accessed or utilized the subscription portions of the Online Services. 
  4. If you believe that the security of your password has been breached, you must promptly notify us of the breach. We will then cancel that password and issue you a new password.

B. You acknowledge that:
  1. Password(s) are unique to you and that, although we do have the ability to require password(s) to meet certain requirements (such as a minimum or maximum number of characters) and to reset such password(s), we do not have the ability to access the password(s) themselves.

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Section 4 - Limitations on Use and Acceptable Conduct

A. You agree that you will not use the Online Services for any purpose that is unlawful or not permitted by this Agreement. By way of example, and not as a limitation, you agree that when uploading to or communicating via the Online Services you agree that you will not:
  1.  Defame, abuse, harass, stalk, demean, intimidate, threaten or otherwise violate the legal rights (such as rights of privacy) of others.
  2. Encourage any conduct that would constitute a criminal offense or give rise to civil liability;
  3. Publish, post, distribute or disseminate any defamatory, infringing, obscene, pornographic, sexual, indecent or unlawful material or information.
  4. Upload or otherwise transfer files that contain software or other material protected by intellectual property laws (or by rights of privacy or confidentiality) unless you own or control the rights thereto or have received all necessary consents.
  5. Upload or otherwise transfer files that contain viruses, corrupted files or any other similar software or programs that may damage or inhibit the operation of another computer.
  6. Delete any author attributions, legal notices, or proprietary designations or labels in any file that is uploaded.
  7. Falsify the origin or source of software or other material contained in a file that is uploaded.
  8. Advertise or offer to sell any goods or services or conduct or forward surveys, contests or chain letters.
  9. Download any file posted by another user that you know, or reasonably should know, cannot be legally distributed in such manner.
  10. Reproduce, retransmit, distribute, disseminate, sell, license, sublicense, lease, publish, broadcast or circulate any content or other materials accessed, except in accordance with the fair use doctrine under the copyright laws of the United States.
  11. Use web robots, crawlers, wanderers, spiders or similar programs on any of the Online Services.
  12. Use any communications or Content or other information obtained through the Online Services in a manner that is competitive with or detrimental to the Online Services or our business.
  13. Permit the delivery of any Content in violation of any applicable United States or Territory export control laws, restrictions and regulations relating to the distribution of technical information, as they exist from time to time, including, without limitation, those promulgated by the United States Department of Commerce; or, with respect to materials which you are allowed to post.

B. You acknowledge that:

  1. You understand that any use of our Online Services and any of the Content is entirely at your own risk.
  2. Our Online Services are public and not private communications.
  3. No communication of a third party or Content is endorsed by SM-S.
  4. No communication of a third party or Content may be considered reviewed, screened or approved by SM-S and that any such screening we do is as a courtesy only.
  5. We reserve the right for any reason to remove without notice any communication, Content or other material posted to the Online Services.

 
C. You also agree:

  1. Not to use the Online Services in any manner that could damage, disable, overburden, or impair the Online Services or interfere with any other party's use and enjoyment of the Online Services.
  2. Not to attempt to gain unauthorized access to any other user accounts, computer systems or infrastructure associated with the Online Services.
  3. Not to obtain or attempt to obtain any materials or information through any means not intentionally made available or provided for through the Online Services.
  4. To take appropriate measures to safeguard your data and information from malfunctions which might affect our Online Services.

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Section 5 - Appropriate Use and Management of Content

A. You acknowledge that the Online Services contains Content which is protected by copyright, trademark or other proprietary rights of SM-S and its affiliates or other third parties (including other Associates).

B. You understand and agree that:

  1. You may not modify, publish, transmit, transfer or sell, reproduce, create derivative works from, distribute, perform, display, reverse engineer or in any way exploit any of the Content, in whole or in part, except as otherwise expressly permitted in this Agreement and any other agreement entered into at the time such Content was accessed.
  2. We do not and cannot review all communications or Content uploaded to the Online Services and is not responsible for the content of such communications or Content.
  3. Notwithstanding the foregoing, we reserve the right to delete, move or edit any communication or Content that it may determine, in its sole discretion, violates or may violate this Agreement or is otherwise unacceptable.
  4. You shall remain solely responsible for all communications made or Content submitted using your account.
  5. We shall have the right but not the obligation to correct any errors or omissions in any Content, as we may determine in our sole discretion.


C. You understand that we respect the intellectual property of others, and we ask our users and Associates to do the same. If you believe that your work has been copied in a way that constitutes copyright infringement, or your intellectual property rights have been otherwise violated, please provide us with notice of such infringement in the manner described under Notice and Procedure for Making Claims of Infringement in the Terms of Use.

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Section 6 - Confidential Information

You acknowledge that the Confidential Information (defined below) which you obtain through the entering into of this Agreement and the use of the Online Services constitutes valuable, confidential, proprietary information of SM-S and its licensors, and you agree that during the term of this Agreement and thereafter you shall not, without the express written consent of SM-S, use or disclose to any other person any such Confidential Information, except as specifically authorized under this Agreement or as required by applicable law.

For the purposes of this Agreement, “Confidential Information” means any and all data, information, documents, software or materials relating to the business and management of SM-S, its members, affiliates, licensors or licensees, that is designated as confidential or ought reasonably to be considered confidential, including but not limited to: their business model and operations, processes, products, designs, pricing, promotions, business plans, business opportunities, finances, research, development, know-how, trade-secrets, training materials, personnel, clients, methodologies, Online Services content belonging to others and other intellectual property.

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Section 7 - Indemnity

You agree to indemnify, defend and hold us and our affiliates, and their respective directors, officers, employees, shareholders, partners and agents (collectively, the "SM-S Parties") harmless from and against any and all claims, liability, losses, costs and expenses (including lawyers’ fees on a solicitor and client basis) incurred by any SM-S Party in connection with:

  1. Any use or alleged use of the Online Services under your Account by any person, whether or not authorized by you; or
  2. resulting from any communication made or Content uploaded under your Account; or
  3. any breach by you of this Agreement.


We reserve the right, at your expense, to assume the exclusive defense and control of any matter otherwise subject to indemnification by you, and in such case, you agree to cooperate with our defense of such claim.

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Section 8 - Term and Termination

A. You understand and agree that:

  1. This Agreement is effective until terminated. You may terminate this Agreement at any time by emailing associate@sm-s.org or by such other means of written notice acceptable to us which enables confirmation of your identity and your intention to terminate.
  2. We reserve the right, in our sole discretion, to restrict, suspend or terminate your participation in the Program at any time for any reason without prior notice or liability. 
  3. We reserve the right, in our sole discretion, to restrict, suspend or terminate your right to access the subscription portions of the Online Services at any time for any reason without prior notice or liability. 
  4. We may also terminate or suspend your access to the subscription portions of the Online Services for inactivity, which is defined as failing to access the subscription portions of the Online Services for an extended period of time, as we may reasonably determine. 
  5. We may change, suspend or discontinue all or any aspect of the Program or the Online Services at any time, including the availability of any functionality, or Content, without prior notice or liability.


B. You further agree that termination of this Agreement:

  1. Does not relieve you of your responsibilities to pay any amounts due to us under this Agreement or your obligations to not use the subscription portions of the Online Services or any Content other than in the manner permitted under this Agreement or any other agreement entered into at the time such Content was accessed.
  2. Shall operate without prejudice to the our rights, defenses and limitations of liability provided under this Agreement, which rights, defenses and limitations of liability shall survive termination of this Agreement.

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SECTION 9 - DISCLAIMER OF WARRANTIES

THE ONLINE SERVICES, INCLUDING ANY CONTENT CONTAINED THEREIN, AND ANY PRINTED DOCUMENTS RELATING TO THE ONLINE SERVICES OR THE PROGRAM ARE PROVIDED "AS IS" WITHOUT REPRESENTATION, WARRANTY OR CONDITION OF ANY KIND, EITHER EXPRESS OR IMPLIED, INCLUDING, BUT NOT LIMITED TO THE IMPLIED REPRESENTATIONS, WARRANTIES OR CONDITIONS OF MERCHANTABILITY, OR FITNESS FOR A PARTICULAR PURPOSE.

SM-S DOES NOT REPRESENT OR WARRANT THAT THE ONLINE SERVICES, THE CONTENT OR PARTICIPATION IN THE PROGRAM WILL MEET YOUR REQUIREMENTS OR THAT THEIR USE WILL BE UNINTERRUPTED OR ERROR FREE OR ANY CONTENT AVAILABLE FOR DOWNLOADING THROUGH THE ONLINE SERVICES WILL BE FREE OF VIRUSES, SIMILAR CONTAMINATION OR DESTRUCTIVE FEATURES.

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SECTION 10 - LIMITATION OF LIABILITY

YOU ASSUME ALL RESPONSIBILITY AND RISK FOR YOUR PARTICIPATION IN THE PROGRAM AND FOR YOUR USE OF THE ONLINE SERVICES INCLUDING WITHOUT LIMITATION ANY OF THE CONTENT OR INFORMATION CONTAINED THEREIN.

IN NO EVENT SHALL SM-S OR ANY OF ITS AFFILIATES, AGENTS, EMPLOYEES, DIRECTORS AND SUPPLIERS (INCLUDING CONTENT PROVIDERS) BE LIABLE FOR ANY INCIDENTAL, INDIRECT, PUNITIVE, EXEMPLARY, CONSEQUENTIAL OR OTHER DAMAGES WHATSOEVER (INCLUDING DAMAGES FOR LOSS OF PROFITS, INTERRUPTION, LOSS OF BUSINESS INFORMATION, OR ANY OTHER PECUNIARY LOSS) IN CONNECTION WITH ANY CLAIM, LOSS, DAMAGE, ACTION, SUIT OR OTHER PROCEEDING ARISING UNDER OR OUT OF THIS AGREEMENT, INCLUDING WITHOUT LIMITATION YOUR USE OF, RELIANCE UPON, ACCESS TO, OR EXPLOITATION OF THE ONLINE SERVICES, THE CONTENT OR ANY PART THEREOF, OR ANY RIGHTS GRANTED TO YOU HEREUNDER, EVEN IF SM-S HAS BEEN ADVISED OF THE POSSIBILITY OF SUCH DAMAGES, WHETHER THE ACTION IS BASED ON CONTRACT, TORT (INCLUDING NEGLIGENCE), INFRINGEMENT OF INTELLECTUAL PROPERTY RIGHTS OR OTHERWISE.

IN ANY EVENT, YOU AGREE THAT THE LIABILITY OF SM-S, ITS AFFILIATES, AGENTS, EMPLOYEES, DIRECTORS AND SUPPLIERS (INCLUDING CONTENT PROVIDERS) HEREUNDER IS LIMITED SOLELY TO YOUR DIRECT DAMAGES AND IN NO EVENT SHALL IT EXCEED, IN THE AGGREGATE, ONE HUNDRED (100) UNITED STATES DOLLARS.

SOME JURISDICTIONS DO NOT ALLOW FOR THE LIMITATION OR EXCLUSION OF LIABILITY FOR INCIDENTAL OR CONSEQUENTIAL DAMAGES, SO THE ABOVE LIMITATION OR EXCLUSION MAY NOT APPLY TO YOU. IN SUCH JURISDICTIONS, THE LIABILITY OF SM-S OR ANY OF ITS DIRECTORS, OFFICERS, EMPLOYEES, SHAREHOLDERS, PARTNERS, OR AGENTS SHALL BE LIMITED TO THE GREATEST EXTENT PERMITTED BY LAW.

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Section 11 - Age and Responsibility

You represent and warrant that you are of sufficient legal age and have the appropriate authority to create binding legal obligations for any liability you may incur as a result of participating in the Program or the use of the Online Services. You agree to be responsible for all of your use of the Online Services (as well as for use of your account and password(s) by others, including without limitation, minors living with you).

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Section 12 - Applicable Law

This Agreement and your compliance herewith shall be governed by the laws of the State of California, without reference to its conflicts of laws provisions, and the exclusive venue of any action by you or SM-S shall be in Orange County, California, regardless of where access is obtained. If access is obtained in any other country than the United States, governing law shall default to the laws of the State of California in the United States.

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Section 13 - Notifications

  1. You consent to service of any required notice or process upon you by email, registered mail or overnight courier with proof of delivery notice, addressed to the address or contact information provided by you at the time you are approved to enter the Program or first granted access to the subscription portions of the Online Services, or such other address as you may advise us in writing to use, from time to time.
  2. If you have concerns relating to the Program, our Online Services or this Agreement, please contact us via e-mail at associate@sm-s.org or via phone at 714-491-5924.
  3. Any notices to SM-S shall be made by electronic mail addressed to associate@sm-s.org or conventional mail to the following address:
Service Management Society, Inc.
Attn: Associate Relations
27068 La Paz Road #451
Aliso Viejo, CA
92656-3041
714-491-5924
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Section 14 - Mediation and Arbitration of Disputes

In any dispute over the provisions of this Agreement, if you and SM-S (the “parties”) cannot resolve the dispute to their mutual satisfaction, the matter shall be submitted to mediation in Orange County, California. The terms and procedure for mediation shall be arranged by the parties to the dispute.

  1. If good-faith mediation of a dispute proves impossible or if an agreed-upon mediation outcome cannot be obtained by the parties to the dispute, the dispute may be submitted to arbitration in accordance with the rules of the American Arbitration Association. Any party may commence arbitration of the dispute by sending a written request for arbitration to all other parties to the dispute. The request shall state the nature of the dispute to be resolved by arbitration, and, if all parties to the dispute agree to arbitration, arbitration shall be commenced as soon as practical after such parties receive a copy of the written request. 
  2. All parties shall initially share the cost of arbitration, but the prevailing party or parties may be awarded attorney fees, costs and other expenses of arbitration. All arbitration decisions shall be final, binding and conclusive on all the parties to arbitration, and legal judgment may be entered based upon such decision in accordance with applicable law in any court having jurisdiction to do so.
  3. If we are obligated to go to court, rather than arbitration, to enforce any of its rights, or to collect any fees, you agree to reimburse us for our legal fees, costs and disbursements if we are is successful.


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Section 15 - General Provisions

You specifically acknowledge and agree that:

  1. You have, in addition to the terms of this Agreement, reviewed the terms of the Terms of Use and any other agreements which may be incorporated by reference therein, and to the extent of their incorporation herein you agree to be bound by them.
  2. Our failure to insist upon or enforce strict performance of any provision of this Agreement shall not be construed as a waiver of any provision or right. 
  3. If any provision of this Agreement shall be for any reason held invalid or unenforceable, the remaining provisions will remain in full force and effect.
  4. Nothing contained herein will be construed as creating any agency, partnership, joint venture or other form of joint enterprise with us.
  5. This Agreement is personal to you and is not assignable by you without our prior written consent. We may assign this Agreement without your consent to any other party so long as such party agrees to be bound by its terms.
  6. This Agreement constitutes the entire agreement between you and SM-S with respect to the subject matter hereof, and supersedes all prior and contemporaneous agreements, understandings, whether written or oral, or any other communication.

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Section 16 - Acknowledgement

YOU ACKNOWLEDGE THAT YOU HAVE READ THIS AGREEMENT, FULLY UNDERSTAND, AND AGREE TO BE BOUND BY ITS TERMS AND CONDITIONS. YOU FURTHER AGREE THAT IT IS THE COMPLETE AND EXCLUSIVE STATEMENT OF THE AGREEMENT BETWEEN YOU AND SM-S, WHICH SUPERSEDES ANY PROPOSAL OR PRIOR AGREEMENT, ORAL OR WRITTEN, AND ANY OTHER COMMUNICATION BETWEEN YOU AND SM-S RELATING TO THE SUBJECT OF THIS AGREEMENT.

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