TPBS – B2B Terms and Conditions
MASTER FRAMEWORK COLLABORATION AGREEMENT
(A) Powereducation, S.L., a Spanish corporation, with registered office at Calle Orense, 62, 28020, Madrid and Spanish Tax Identification number N.I.F. B87867297 (“TPBS” or the “The Power Business School”); and
(B) The legal entity whose details and legal representative are referred to in the Order From (as defined below) (the “Company”).
Hereinafter, TPBS and the Company shall be collectively referred to as the “Parties” and each of them shall be individually referred to as the “Party”.
I. TPBS is an international business school which is in the business of online management educational programs and whose affiliate wholly and directly controlled is ThePowerMBA, Inc. a United States of America corporation, with registered office at Delaware, 2035 Sunset Lake Road, Suite B-2, Newark, 19702, in the County of New Castle, with E.I.N. number 38-4131772 and registered in the Delaware Commercial Registry (henceforth, the “TPBS USA”).
II. TPBS develops and commercializes, either directly or indirectly through TPBS USA, educational programs (i) that are based on recordings and telematic education involving different associate professors with online interactions with TPBS’s students’ network; and (ii) with automated content and videos that are focused on specific items in the business world involving different associate professors (jointly referred to as the “Programs”).
III. TPBS develops, commercializes, and offers to its relevant students the Spanish-speaking Programs; whereas TPBS USA develops, commercializes, and offers to its relevant students the English-speaking Programs.
IV. The Company is interested in acquiring certain licenses of use of the Programs in order to offer educational services to the Company’s employees and has entered into an order form with TPBS for the provision of such educational services (the “Order Form”).
Now therefore, the Parties mutually acknowledge and agree each other with sufficient authority to enter into the Order From and this services agreement (the “Agreement”), which was last updated on 1 November 2022 and is effective between the Company and TPBS as of the date of the Company’s entered into the Order Form (and thus accepting this Agreement).
The Agreement shall be governed by the following:
1. SCOPE AND NATURE OF THE COLLABORATION RELATIONSHIP
1.1 This Agreement is of a commercial nature and no other relationship exists between the Parties or between TPBS and any employees and/or freelancers that TPBS and/or the Company may use in the context of the provision of Services.
1.2 The Order Form, as well as any addenda and supplements thereto, will be bound by the terms of this Agreement as if it were an inseparable part hereof. However, in the event of any discrepancy between the Agreement and the Order Form, the terms of the Order Form shall prevail.
1.3 By executing the Order Form, the Company agrees to the terms of this Agreement. If the individual entering into the Order Form is accepting on behalf of a legal entity, such individual represents and warrants that they have the authority to bind such entity and its affiliates to these terms and conditions, in which case the term “Company” shall refer to such entity and its affiliates. If the individual accepting this Agreement does not have such authority, or does not agree with these terms and conditions, such individual must not accept this Agreement and may not use the Services (as defined below).
1.4 Each Party will act as an independent entity, and neither Party nor any of its employees will have any express or implicit right or authorization to assume or create any obligation or responsibility on behalf of the other Party, nor to bind the Company in any way.
2.2 TPBS USA shall make its respective Programs available to TPBS so that TPBS may make them available to the Company pursuant to the terms of this Agreement.
2.3 The Programs shall be for the exclusive use and training of the Company’s employees, and the Company may not use any of the Services covered by this Agreement for a different purpose without the prior written consent of TPBS. To this extent, the Company shall only be authorized to carry out acts of reproduction and public communication of the documents that make up the Program in its corporate environment, for the purpose of training its employees on the training platform provided for this purpose.
2.4 The authorization granted under this Agreement is a temporary license to use the Programs contracted by the Company and does not imply in any case the transfer of any of the rights that TPBS and TPBS USA hold or may hold over such Programs. Thus, the Company, as licensee, may not resell, make any arrangement and/or transfer to third parties, lease, rent or lend any of the Programs and only TPBS authorizes their use within the environment of the Company’s and for the purposes of training its relevant employees on TPBS platform.
2.5 TPBS grants the Company a non-exclusive and non-transferable license for the Company’s employees. Therefore, the access to the Programs will be granted in a non-exclusive and temporary manner with a non-transferable character. The Company will not have the right to make any changes to the Programs, without prejudice to being able to agree with TPBS on specific products designed for the Company’s employees, such as (i) webinars created specifically for the Company’s employees as an exclusive group on the platform; (ii) a welcome kick-off event; (iii) a Program closing event; as well as (v) the establishment of metrics or levels of engagement achievement and access to the respective dashboards of such metrics.
2.6 Any modification of the Services will only be binding between the Parties if the modification is previously agreed in writing between the Parties. Therefore, the provision of any services other than the Services cannot be carried out until both Parties have previously and expressly approved their provision.
2.7 The Company declares that it has been fully informed before the execution of this Agreement about the nature and purpose of the Services and/or the Programs and that it has had the opportunity to request from TPBS all the necessary information to evaluate the scope of the terms and conditions of this Agreement. In particular, the Parties expressly acknowledge that the Programs offered by TPBS (including the Programs of TPBS USA) do not consist of educational programs endorsed by any official body and/or university and therefore such Programs are not officially accredited. Consequently, the Company may not allege any supervening circumstance to claim the amendment of the Price (as this term is defined below).
2.8 TPBS reserves the right to cancel, interrupt, reschedule or modify any of the contents included in their respective Programs or to change the point value or weight of any module, questionnaire or other assessment, to maintain always an updated and best quality content.For clarification purposes, (i) the cancellation referred to above, if applicable, will only relate to some minor adjustments to the recordings comprised in the Programs and will not jeopardize or remove the quality, content, and services contracted by the Company; and (ii) the content of the Programs will be available to the Company’s employees at all times and will be able to access its Programs with high quality content similar to that agreed between the Parties.
2.9 Both Parties represent and warrant, respectively, in relation to the Services, to comply with all the requirements of any applicable labor, Social Security and tax laws that, due to their situation, may correspond to them, being solely and exclusively responsible for the liabilities that may arise from these concepts.
2.10 Likewise, the Parties acknowledge and agree that:
2.10.1 The e-mail addresses of the Company’s employees that are made available to TPBS, either by the Company or directly by the Company’s employees (all in accordance with the provisions of Clause 10 below), shall be the corporate e-mail accounts of the Company’s employees. For these purposes, any communication made by TPBS shall be valid as long as TPBS has not been notified of the change in the email address of the student in question. However, if the Parties so agree, certain employees may provide their personal email addresses in order to benefit from the Programs.
2.10.2 The Company’s employees shall not have access to the employability forum offered by TPBS and TPBS USA.
2.10.3 The Company, through its authorized representatives, shall have access to an intranet portal to view the evolution, metrics and development of each of the Programs being used at any given time by the Company’s employees (the “Company’s Intranet Portal”). For clarification purposes, TPBS USA shall make its respective Programs available to TPBS on the TPBS Website (as such term is defined in the Company’s Intranet Portal).
3. PLACE AND PROVISION OF THE SERVICES
3.1 The Parties recognize that the provision of the Services shall be carried out in a telematic manner. Consequently, the Company acknowledges that it will be the responsibility of the Company to ensure the space, infrastructure and complementary services needed for the correct execution of the Services so the Company’s employees can benefit from the Services.
4. REMUNERATION AND BILLING
4.1 The consideration to be paid by the Company for the provision of the Services shall be based on the total number of employees of the Company agreed between the Parties pursuant to the terms and conditions set out in the Order Form (the “Price”).
4.2 The Company shall proceed to pay the invoices in accordance with the terms and conditions set out in the Order Form. This transfer shall be made to the current account and bank owned by TPBS as determined in the invoice. Unless otherwise stated In the Order Form, the Payment shall be made by direct debit and the Parties undertake to sign a SEPA Direct Debit Mandate for this purpose.
4.3 The Price does not include any indirect taxes that may be applicable according to law and will be updated annually according to the Spanish Consumer Price Index (Indice de Precios al Consumo).
4.4 Any additional services to the Services which the Company requests TPBS to provide shall be invoiced and paid for outside this Agreement, under the terms agreed between the Parties.
5.1 Unless otherwise agreed in the Order Form, this Agreement shall come into force on date of the execution of the Order Form and shall be in force for one year, which the Parties undertake to be a compulsory initial period. After such initial period has elapsed, the Agreement shall be deemed to be automatically renewed for consecutive annual periods, unless any Party notifies its intention not to renew the agreement (or any of its extensions) with two-month prior written notice.
5.2 Once the term of the Agreement has expired, it shall be understood to be terminated without any economic rights or obligations arising therefrom for either Party. The termination of the Agreement for any reason shall terminate the access of the Company’s employees to any of the Programs they were undergoing.
5.3 For clarification purposes, the termination notice shall not prevent the Company’s employees from enjoying the Programs until the termination of the period that the Company had contracted with TPBS; provided that the Company has paid to such entity the corresponding fee.
6.1 TPBS guarantees that the personnel carrying out the provision of the Services will have the appropriate qualification, training, experience and professional level to provide the Services. Under no circumstances may TPBS’s personnel be considered as employees, agents or representatives of the Company.
6.2 On the other hand, the Company will designate a representative or coordinator, who will exclusively maintain the necessary contacts with TPBS in order to resolve any issues that may arise during the development of the Services.
6.3 TPBS will use the personnel it deems necessary to carry out the Services and the Company will not assume any responsibility derived from the relations between TPBS and TPBS USA and its personnel in the provision of the Services.
7.1 This Agreement may be terminated as follows:
7.1.1 By either Party in the event of a material breach of this Agreement if the breaching Party fails to cure such breach within thirty (30) calendar days of receiving written notice of such breach from the non-breaching Party.
7.1.2 For the refusal of the Company to carry out any of its commitments set forth in this Agreement and such default is not cured within fifteen (15) days after written notice from TPBS.
7.1.3 By mutual written agreement of the Parties.
8. INTELLECTUAL PROPERTY, IMAGE, PERSONAL DATA RIGHTS AND OTHER INTANGIBLE ASSETS
8.1 TPBS and TPBS USA own, respectively and as applicable, all the intellectual and industrial property rights of the Programs as a whole and over its parts. To this extent, the Company expressly recognizes that the use by the Company or the Company‘s employees of the Programs contents, will not imply in any case the concession and/or assignment of any right over them in favour of the Company or any of its employees other than those regulated in this Agreement.
8.2 In the event that the Company collaborates with TPBS in the elaboration, in the context of the execution of this Agreement, of any work, performance, invention, distinctive sign or creation that results in intellectual and/or industrial property and/or trade-secret rights (such as, but not limited to studies, promotional announcements, inventions, etc.), the Parties will agree in good faith, prior to its public release, the terms and conditions on which TPBS and the Company shall share any rights that may have arisen and how the Parties shall use such new intangible assets.
8.3 TPBS may announce and display on its website and other channels that the Company’s employees benefit from the Programs and, to this extent they may use, in good faith and at all times with due regard to the image of the Company, the Company’s corporate logos, trademarks and images.
9.1 For the purposes of this Agreement, “Confidential Information” shall mean any and all information of whatsoever nature (whether technical, commercial, financial, operational or other), by any of the Parties, directly or indirectly, in relation to the purpose of this Agreement. This information will be considered confidential, whether it is provided in any form or medium (oral or written, recorded, data supplied on computer, audiovisual or any other medium) and any information acquired by either Party.
9.2 In particular, it shall be considered Confidential Information, including but not limited to, any information related to TPBS and TPBS USA, its methodology, manuals, Programs, modules, business plans, marketing plans, Know-How, list of users or providers, financial information, trademarks, information marked as “confidential”, trade-secrets, or, in general, any other documents, data or information that can be reasonably categorized as confidential even if they are not marked as “confidential“.
9.3 Each Party undertakes to keep and process Confidential Information transmitted by the other Party as confidential and refrain from using Confidential Information (for its own benefit or for the benefit of third parties), as well as from disclosing and/or transmitting it to third parties or making it public in any way without the prior written consent of the Issuer.
9.4 At any time, at the request of either Party, or once the Service has been concluded at the request of the Issuer, the other Party shall immediately return all the Confidential Information delivered in written or tangible form, or in any other support that could be found, or shall certify to the Issuer that said information has been destroyed, The destruction or return of the Confidential Information shall not relieve the Parties of its obligation to treat such Confidential Information as strictly confidential for as long as it remains confidential in nature or constitutes trade secret.
9.5 The obligations established in this Clause shall be maintained during the term of the Agreement and, once it has ended, for an unlimited period of time, counting from the day following that of its termination, for as long as the Confidential Information remains confidential in nature or constitutes trade secret. This rule is applicable also to Confidential Information that may have been provided prior to the signing of the Agreement.
10. DATA PROTECTION
10.1 In compliance with the provisions of EU General Data Protection Regulation 2016/679 (GDPR), TPBS informs the Company of the following aspects:
10.1.1 TPBS will process and securely store the personal data included in this Agreement and adopt as many security measures as needed to comply with the terms and conditions set forth in this Agreement.
10.1.2 The legal basis that legitimates the aforementioned data processing is the correct execution of the commercial and/or professional relationship between the Parties.
10.1.3 The personal data contained in this Agreement will be kept for the duration of the relationship between the Parties and once the relationship ends for the period necessary for the fulfillment of legal, tax and administrative obligations that may be necessary. This period can exceed six (6) years since the termination of this Agreement and/or the termination of any of the Programs.
10.2 TPBS informs the Company that it may use external companies for the management, collection and/or purchase-sale of invoices as a facility for TPBS.
10.3 In accordance with data protection law, both Parties have the status of data controllers in respect of the data that each Party collects and processes in the exercise of its powers under this Agreement, and neither Party shall communicate to the other Party the personal data for which each Party is responsible.
10.4 In the event that such communication is necessary, the responsible Party shall ensure that the respective data subjects have been informed and have given their consent to the transfer of their data to the other Party in accordance with the requirements set out in the applicable data protection legislation.
10.5 TPBS informs that signatories can exercise their data protection rights (access, rectification, suppression, limitation, portability and any other under GDPR) at the following postal address: Calle Orense 62, 28028, Madrid, Spain, or at the following e-mail address: email@example.com, by means of a written notice with the reference “Data Protection”. In case of Company, signatories/data subjects can exercise their rights at the notifications email referred to in the Order Form.
10.6 The signatories/data subjects are aware of their right to submit a claim before the Spanish Data Protection Agency (www.aepd.es) or before any other competent Data Protection Authority. However, both Parties shall try to solve and collaborate mutually in any matter related to the personal data of the other Party to which they may have access.
10.7 In the event that the Company provides TPBS (as data processors) personal data other than those included in this Agreement, it shall do so under its responsibility, as data controller (the “Controller“) and TPBS, as the case may be, shall process them as data processor (each, as “Processor“), following the documented instructions of the Company. In this case, this clause establishes obligations and responsibilities of the Parties with respect to the databases of a personal nature owned by the Controller (“Databases“), to which the Controller may give access to the Processor. The fundamental characteristics of the Databases and the processing that the Controller authorizes to the Processor are detailed below:
10.8 The Processor undertakes to:
10.8.1 To process the personal data only in accordance with the documented instructions of the Controller, and to refrain from applying or using the personal data for any purpose other than the performance of this Agreement.
10.8.2 Refrain from disclosing, assigning, transferring or communicating the data in any form to third parties, either orally or in writing, through electronic means, written or telematic access without the express authorization of the Controller.
10.8.3 To allow access to the data to its employees and external collaborators when necessary to provide the services established in this Agreement.
10.8.4 To inform the Controller of the need to subcontract the processing of Databases and the data of the company that will be the subcontractor of the processing before contracting it (in the event that a response has been obtained from the Controller within fifteen days following the notification by the Processor, it will be understood that the authorization by the Controller has been granted).
10.8.5 To adopt appropriate security measures for the Databases, according to the instructions provided, in writing, by the Controller for this purpose.
10.8.6 To assist the Controller in responding to requests for the exercise of the rights of data subjects and to inform the Controller within 5 working days of any request it receives, so that it is the Controller who deals with it.
10.8.7 Upon termination of this Agreement, return or destroy the Databases to the Controller, as requested by the latter, unless there is a legal provision requiring their preservation.
10.8.8 Not to conduct any international transfer of data with the TPBS USA.
11.1 Neither Party may assign the rights and obligations arising from this Agreement without first obtaining the written consent of the other Party.
11.2 Notwithstanding the provisions of the preceding paragraph, either Party may freely assign this Agreement to any of the companies that make up its group (within the meaning of Article 42 of the Spanish Commercial Code).
12.1 The obligations established in this Agreement in charge of TPBS shall not prevent them from rendering services or supplying products similar to those regulated in this Agreement to any other entity.
13.1 Unless otherwise provided in this Agreement, or by law, all notices required or permitted by this Agreement shall be in writing and shall be given or made by physical delivery, overnight courier or email (with delivery confirmation). A Party may change its address by giving written notice of the change to the other Party.
13.2 For the purposes of communications, the Parties designate the following addresses:
- TPBS: Hugo Arévalo (firstname.lastname@example.org); Rafa Gozalo (email@example.com); and legal (firstname.lastname@example.org).
- The Company: the notifications email referred to in the Order Form.
- The Company further acknowledges and agrees that for all communications to be made by employees of the Company to TPBS the following address shall be used: email@example.com.
13.3 Any communication sent to the addresses stated in the previous paragraph shall be understood to have been correctly made, unless the recipient has previously notified the other party of a change of address, so that its sending and receipt are recorded. Any change of address for notifications to be effective between the Parties must be communicated to the other Party at least five (5) calendar days in advance.
14.1 This Agreement, including the Order Form as well as all the Annexes attached hereto and therefore made an inseparable part hereof, contains the entire understanding of the Parties regarding its subject matter. It supersedes all previous written or oral negotiations, deal memos, understandings or representations between the Parties, if any. Each Party expressly waives any right to rely on such negotiations, understandings or representations, if any.
14.2 Any modification or waiver of the terms of this Agreement must be in writing and agreed to by both Parties. No waiver by either Party of any default shall be deemed as a waiver of prior or subsequent default of the same or other provisions of this Agreement.
14.3 If any provision of this Agreement is held to be invalid, unenforceable, or void, the provision shall be enforced to the greatest extent permitted by Spanish law, and the remainder of this Agreement shall remain in full force and effect.
15.1 All expenses, taxes, contributions, fees, duties, taxes, present or future, arising as a consequence of the formalization, performance or termination of this Agreement and the obligations arising therefrom shall be paid by the Parties in accordance with the law.
16. APPLICABLE LAW AND DISPUTE RESOLUTION
16.1 This Agreement shall be construed in accordance with and all disputes hereunder shall be governed by the internal laws of the State of Spain.
16.2 The Parties agree that any dispute arising out of or relating to this Agreement shall be definitively settled by the courts of Madrid (Spain) and expressly waive any other jurisdiction that may correspond.