Welcome to the website of LUXX United GmbH, Kollwitzstr. 40, 10405 Berlin, Germany, registered in the commercial register of the Local Court Berlin-Charlottenburg under HRB 172100 B (the “Licensor”), represented by the Managing Directors Thomas Staller, Peter Boltersdorf and John Delnoy.
This is the Master License of the Licensor, which regulates the License Agreement between you (the “Master”) and the Licensor regarding your commercial activity as LUXXprofile Master.
§ 1 Preliminary Remarks
(1) The Licensor is – with the University of Luxemburg – the co-author of the work “LUXXprofile”, a standardized psychological personality test (the “Work”), which is available on the Licensor’s online platform www.luxxprofile.com (the “Platform“). The Licensor is the owner of
(a) an exclusive, worldwide right to the commercial use of the Work, and
(b) the right to the logo “LUXXprofile”, the EU word marks “LUXX” (EU mark No. 015382741) and „LUXX Profile“ (EU mark No. 015382781) (together the “Marks”),
each including the right to grant sublicenses to the Master for the respective rights of use in accordance with this Agreement.
(2) The Parties agree that the existence and the scope of their rights and obligations stipulated in this Agreement do not depend on whether the Work or other literary, pictorial or cinematographic works, or other representations, including digital, granted to the Master by the Licensor with this Agreement are protected by copyright.
§ 2 License Rights
(1) The Licensor hereby grants the Master a non-exclusive, non-transferable right to the worldwide commercial use of the Work until termination of this Agreement.
(a) Commercial use is conducted by retrieving individual personality tests (the “Tests”) from the Platform. To this purpose, the Master receives access authorization to the Platform, retrieves individual Tests as part of the Work for test persons against payment, and has the test persons perform the Tests (one Test retrievable for each test person; repeaters shall be deemed new test persons). Commercial use comprises the use of the platform, particularly the retrieval and evaluation of the individual Tests, and the use of the test results and documents generated by the Licensor in this process, incl. the right to discuss and explain the Tests to the test persons in advance and to evaluate the results and the documents afterwards (the “Master Services”).
(b) The Master has the right to invoice the Master Services to the test persons at his or her own discretion.
(c) Commercial use comprises the right of the Master to represent, copy and distribute the Marks in an unaltered form in connection with this Agreement and under the condition of fully complying with the “LUXXprofile Corporate Identity Guidelines” (the LUXXprofile Corporate Identity Guidelines may be requested from the Licensor in advance, but are available on the Platform only after conclusion of this Agreement, i.e. after accepting this Master License). The Master hereby confirms that upon conclusion of this Agreement he or she is familiar with the LUXXprofile Corporate Identity Guidelines, which are part of this Agreement.
(2) Moreover, the Master is not allowed
(a) to edit or change the Work,
(b) to develop a comparable standardized psychological personality test, which might compete with the Work, and/or
(c) to use the Work or the name “LUXXprofile” in connection with products or services other than the Master Services.
(3) The Licensor provides the Master at his own discretion with information, training and presentation material, as well as a manual for the application of the Work. The Licensor will continually develop these materials, inform all Masters of new applications, tools, training options and other material, and be available to all Masters as a competence center for all questions relating to the use and application of the Work.
§ 3 License Fees, Increases
(1) The Master pays the Licensor a license fee for each Test retrieved in accordance with the „LUXXprofile Price List“ valid at the conclusion of this Agreement (the LUXXprofile Price List may be requested from the Licensor in advance, but is available on the Platform only after conclusion of this Agreement, i.e. after accepting this Master License). The Master hereby confirms that upon conclusion of this Agreement he or she is familiar with the LUXXprofile Price List, which is part of this Agreement.
(2) The LUXXprofile Price List comprises all license fees possible, depending on the purchase and payment terms selected by the Master with regard to the Tests, in net, i.e. plus the applicable statutory value added tax, or, if so applicable in an international context (e.g. within the EU/Switzerland), in accordance with the so-called “reverse charge mechanism”.
(3) During the term of this Agreement the Licensor may increase the license fees as per the LUXXprofile Price List valid at the conclusion of this Agreement to the beginning of each new calendar year (abbreviated „new CY“)(i.e. independent of the date of this Agreement) as follows:
(a) to the beginning of the 1st new CY during the Agreement term: by 2%
(b) to the beginning of the 2nd new CY during the Agreement term: by another 2% (i.e. 4% in total)
(c) to the beginning of the 3rd new CY during the Agreement term: by another 2% (i.e. 6% in total)
(d) to the beginning of the 4th new CY during the Agreement term: by another 2% (i.e. 8% in total)
(e) to the beginning of the 5th new CY during the Agreement term: by another 2% (i.e. 10% in total).
At the beginning of a possible 6th new CY, the Parties will renegotiate a possible increase in the license fees.
(4) Unless otherwise agreed upon individually, the Licensor has a right of retention against the Master and his or her test persons regarding unpaid Tests retrieved from the Platform.
§ 4 Minimum Purchase of Tests per Contract Year, Blocking
(1) The Master obliges to retrieve at least four (4) Tests from the Platform during each year of the Agreement term.
(2) If the Master fails to adhere to the minimum purchase agreed upon in para. 1, the Licensor may not request a separate payment (like damages, for example) from the Master, but suspend the Master’s rights to use the Work in accordance with § 2 at any time without notice by blocking the access authorization of the Master and his or her test persons to the Platform (the “Blocking”).
(3) In such case the Licensor will offer the Master simultaneously to the Blocking a retraining within three (3) months in order to attempt to eliminate the causes for the low Test purchases. If the Master fails to complete such retraining within three (3) months after the Blocking and the simultaneous offer of said retraining, the Licensor may terminate this Agreement without notice.
(4) The provisions of § 4 shall be applicable in each year of the respective Agreement term.
§ 5 Agreement Term, Termination, No Rights to Withdrawal or Refunds
(1) This Agreement becomes effective with the Master clicking on the option “I accept the Master License” below, and initially runs for three (3) years. The Agreement term automatically extends by another three (3) years, if neither party terminates this Agreement with a notice period of three (3) months before the end of the respective Agreement term.
(2) A termination of this Agreement must be in writing to be effective (e-mail is sufficient). Decisive for the timeliness of the termination is its receipt by the respective other party.
(3) Since the license according to § 2 para. 1 is granted for commercial use only, the Master as an entrepreneur according to § 14 BGB (German Civil Code) shall not be entitled to any rights of withdrawal, neither with respect to the conclusion of this Agreement nor with respect to the retrieval of Tests; B2B business is not subject to consumer protection laws – therefore, the Master may not exercise any respective rights of withdrawal nor claim any relevant refunds against the Licensor with regard to Tests paid for.
§ 6 Exclusion of Liability
(1) The Licensor is only liable to the Master for damages that result from intent or gross negligence on the part of the Licensor. Any further liability, as well as liability for damages resulting from slight negligence, is excluded except in the case of infringement upon an essential contractual obligation and damages due to injury to life, body or health.
(2) With the current state of technology, data communication via the Internet cannot be guaranteed to be error-free and/or available at any time. Therefore, the Licensor is not liable for the permanent and uninterrupted availability of the Platform, or for technical and electronical errors, e.g. during retrieval of a Test, beyond his control.
§ 7 Obligation to Secrecy
The Master is obliged to observe strict secrecy towards third parties regarding all business, operational and technical information and processes of the Work and the Licensor that were entrusted to him or her or that he or she became aware of in any other way. This obligation remains effective after termination of this Agreement.
§ 8 Data Protection, Communication per E-mail
(1) The Licensor obliges to adhere to all applicable data protection provisions. The Licensor will use all data of the Master (like name, address, e-mail address, turnover, number of Tests purchased, user-ID, password, IP address, etc.) and his or her test persons, which becomes available to him in connection with this Agreement, exclusively for the purpose of performing his services in connection with this Agreement. The Licensor will not disclose such data to third parties, and protect it from the access and knowledge of third parties. This obligation remains effective after termination of this Agreement. Any further aspects shall be regulated by the respective privacy statement[HM1] of the Licensor, which the Master must also accept.
(2) The Master also obliges to adhere to all applicable data protection provisions. The Master will use all data of the test persons (like name, address, e-mail address, turnover, number of Tests purchased, user-ID, password, IP address, etc.), which becomes available to him or her in connection with this Agreement, exclusively for the purpose of performing his or her services in connection with this Agreement. The Master will not disclose such data to third parties, and protect it from the access and knowledge of third parties. This obligation remains effective after termination of this Agreement. Any further aspects shall be regulated by a privacy statement[HM2] of the Master, which the test persons must also accept.
(3) The parties agree to communicate per e-mail on any topics or issues in connection with this Agreement.
§ 9 Miscellaneous
(1) Amendments and supplements to this Agreement must be in writing to be effective. The same applies to a waiver of the written-form requirement, unless the parties agree upon otherwise.
(2) Should any provision of this Agreement be or become invalid in whole or in part, or otherwise infringe upon statutory provisions, the validity of the remaining provisions of this Agreement shall remain unaffected thereby. The Parties undertake to agree to replace the invalid provision by a provision permitted by statutory law which most closely approximates the intended economic result of the invalid provision. The same shall apply for a gap in the Agreement.
(3) Any claims from or in connection with this Agreement shall be governed by the laws of the Federal Republic of Germany. Place of jurisdiction for any disputes arising from or in connection with this Agreement shall be Berlin, Germany.
(4) The Master guarantees not to be a member of a cult or a cult-like group or association. The Master obliges never to use the Work and/or exercise his or her rights from this Agreement on behalf of or for the purposes of a cult or a cult-like group or association, or their respective members.