(A) Powereducation, S.L., a Spanish corporation, with registered office at Calle Prim, 19, 28004, 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”.
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”).
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”).
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.
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:
SCOPE AND NATURE OF THE COLLABORATION RELATIONSHIP
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.
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.
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).
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.
All services referred to in this clause 2 shall be referred to collectively as the Services and each of them as the Service.
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.
The Services 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 Services in its corporate environment, for the purpose of training its employees on the training platform provided for this purpose.
The authorization granted under this Agreement is a temporary license to use the Services 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 Services. Thus, the Company, as licensee, may not resell, make any arrangement and/or transfer to third parties, lease, rent or lend any of the Services 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.
TPBS grants the Company a non-exclusive and non-transferable license for the Company’s employees. Therefore, the access to the Services 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 Services, 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.
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.
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).
TPBS reserves the right to cancel, interrupt, reschedule or modify any of the contents included in their respective Services 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 Services 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.
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.
Likewise, the Parties acknowledge and agree that:
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.
The Company’s employees shall not have access to the employability forum offered by TPBS and TPBS USA.
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).
The Parties agree that, either individually and separately or in conjunction with the engagement of the Educational Programs, the Company may engage a content creation system, owned by TPBS and available through the Company's Portal ("Learning Management System" or "LMS"), to enable the Company to create proprietary educational content and make it accessible to its employees through the Company's Portal and TPBS's platform.
Technical features of the LMS
Browsers and Platforms: TPBS will support the LMS on the last two major versions of the following browsers and platforms: Firefox, Chrome, Safari, Microsoft Edge and Android Browser.