Terms of Use

General Terms of Use for the cloudeo NoR Portal (“Terms of Use”)

Cloudeo AG, of which the registered offices are located at Ludwigstrasse 8, 80539 Munich, Germany, registered with the District Court Munich Trade Registry under the No. HRB 215923, VAT ID DE298735095 (hereinafter referred to as "cloudeo") operates the cloudeo Network of Resources Portal (hereinafter referred to as “NoR Portal”) for businesses, research facilities and individual researchers or individuals in exercise of their trade, business or profession only.

1. Definitions

    1.1. “Customer” shall be the person/entity opening an account on the NoR Portal in accordance with Section 4 below.

    1.2. “NoR Directory” is the section of the NoR Portal offering NoR Services to be purchased by Customers.

    1.3. “NoR Service(s)” for the purpose of these Terms of Use means all the services listed in the NoR Directory.

    1.4. “NoR Voucher” is a voucher provided to the Customer by ESA allowing the Customer to purchase NoR Services on the NoR Portal in accordance with the provisions of such voucher.

2. Scope of Terms of Use

    2.1. Cloudeo provides access to the NoR Portal and the purchase and use of the NoR Services exclusively on the basis of these Terms of Use. NoR Services may be governed by separate supplementary terms and conditions of the respective NoR Service Provider.

    2.2. Customer, in case of an individual, warrants that he is lawfully able and has the capacity to enter into contracts (e.g. he is not a minor) and that he is not entering into this agreement as a consumer within the meaning of Section 13 of the German Civil Code. If any person is entering into this agreement as a representative for an entity, such as the company for which he is working for, such person warrants to cloudeo that his company (the Customer) is duly organized, validly existing and that he has legal authority, permission, resolution or power of attorney to contractually bind that company.

    2.3. Any other provisions, in particular any general terms and conditions of the Customer, shall not be effective. As set out in Section 2.1 above, special terms and conditions for a purchased NoR Service may apply. In such case, these special terms and conditions shall have precedence in case they are in conflict with the present Terms of Use.

    2.4. Contractual declarations and notifications to be given by the Customer after execution of an agreement (such as setting of deadlines, notification of defects, and declaration of withdrawal) must be provided at least in text form pursuant to Section 126b of the German Civil Code (e.g. email, fax, letter) to be effective.

    2.5. For avoidance of doubt, cloudeo is entitled to commission any NoR Service purchased by the Customer from third parties acting as subcontractors.

3. Compliance with laws and regulations

    Customers’ access to and use of the NoR Portal and the use of the NoR Services shall comply with all applicable laws, including copyright or trademark laws, antitrust and competition laws, export control laws, data protection laws, or other laws in any applicable jurisdiction. The Customer has to ensure that any of its representatives, employees and any other persons acting on his behalf comply with the provisions of this Section 3 and any other provision of these Terms of Use.

4. Account, users and notices

    4.1. The Customer may access the NoR Portal without registration. However, access to and use of the NoR Services will be provided only to registered Customers. For the registration on the NoR Portal the Customer must provide certain information and data required by cloudeo to open an account (“Registration”).

    4.2. The information and data requested by cloudeo at the time of the Registration must be stated completely and correctly, e.g., company/entity/institution name, current address, VAT identification number (if applicable), telephone number, valid e-mail address and a representative’s name (“Registration Data”). The Registration of a legal person may only be carried out by an authorized natural person, who must be mentioned by name. Cloudeo in such case may also require an excerpt from a commercial register or comparable information in order to verify the Registration Data.

    4.3. By submitting Registration Data, the Customer is making cloudeo an offer to conclude a contract based on the present Terms of Use. After submitting the Registration Data, these are validated by cloudeo for completeness and plausibility. If the Registration Data is complete and correct, cloudeo shall decide on whether to accept Customer’s offer at cloudeo’s own discretion. If Customer’s Registration is not confirmed by cloudeo by e-mail to the e-mail address provided by Customer within two weeks’ time, the Customer shall no longer be bound by its offer. If an e-mail confirmation is received, an open-ended user relationship shall be established on the basis of the present Terms of Use and the Customer shall be entitled to use the NoR Portal and to purchase NoR Services in accordance with these Terms of Use.

    4.4. If provided for on the NoR Portal – which is subject to cloudeo’s sole discretion – the Customer may create multiple users under one account. In this case a user can be any person or entity with access credentials under a Customer’s account. Each user shall be given individual access credentials. The Customer represents and warrants that all users will abide by the Terms of Use in the then current version or any subsequent new version and that all users shall duly act on behalf of the Customer and in compliance with any applicable law. By creating a user, Customer accepts responsibility for the acts and omissions of such user as if they were Customer’s own acts and omissions. In particular, the Customer is responsible for its users’ compliance with the obligations set out in Section 7.

    4.5. All notices will be sent in electronic form to the email address associated with the Customer’s account.

    4.6. The Customer is liable for all activities performed under its account, unless he can prove that a third party has used its account without the Customer’s – including its users – fault.

5. Purchase of NoR Services, obligations in electronic commerce

    5.1. The Customer may purchase NoR Services via the NoR Portal. The purchase of a NoR Service may be governed by separate supplementary terms and conditions of the respective NoR Service Provider provided by cloudeo during each order process. NoR Service Provider’s service level agreements as well as data processing agreements may apply in addition to the separate terms and conditions. Such additional terms and conditions are included in the respective description of the NoR Service in the NoR Directory.

    5.2. The listing of a NoR Service in the NoR Directory does not constitute a binding offer. Only the ordering of a NoR Service by the Customer is a binding offer by the Customer. The order will become a binding contract for the purchase of the respective NoR Service when the Customer receives a confirmation e-mail about the acceptance of the offer.

    5.3. The fees and payment options for the NoR Services are based on the respective price lists and additional payment information displayed in the NoR Directory during the order process or on additional payment agreements between the parties.

    5.4. If the Customer uses a NoR Voucher to pay for a NoR Service it wishes to purchase, cloudeo is entitled – but not obliged – to verify that the provisions of the NoR Voucher allow the purchase of the NoR Services chosen by the Customer. In case ESA denies the application of a NoR Voucher to a purchased NoR Service and/or does not pay to cloudeo for the Customer’s use of the purchased NoR Service, the Customer shall remain fully liable for any payments due with regard to its use of purchased NoR Services towards cloudeo.

6. Customer’s obligations

    6.1. The Customer is obliged to provide in due time reasonable cooperation required from him. Therefore, the Customer is

      6.1.1. obliged to immediately change all initial passwords which may be assigned to him into passwords known only to the Customer. The Customer is required to carefully store the Customer’s access credentials and protect them from unauthorized access. If the Customer becomes aware that a third party has used the Customer’s access credentials, he is required to notify cloudeo immediately;

      6.1.2. obliged to correct the information in the Customer’s account immediately, if, after the Registration, the indicated data changes;

      6.1.3. responsible to ensure that the NoR Services – if provided as offered on the NoR Portal – meet the Customer’s requirements in terms of capacity, reliability and security;

    6.2. If the Customer purchases NoR Services using a NoR Voucher, the Customer is obliged to comply with the provisions of the respective NoR Voucher. This applies especially – but not limited to – the Customer’s obligation to timely provide feedback on the purchased NoR Service in accordance with the NoR Voucher.

    6.3. The Customer shall ensure - using adequate organisational measures - that its users are notified of these Terms of Use prior to their use of the Customer´s account.

    6.4. The Customer shall not (and shall ensure that any user under the Customer’s account shall not):

      6.4.1. Intentionally access, tamper with, or use non-public parts of the NoR Portal and the NoR Services or the technical delivery systems of NoR Service Providers;

      6.4.2. Use any automated or non-automated data collection or extraction tools, program, algorithm or methodology to search, access, acquire, copy or monitor any portion of the NoR Portal and/or the NoR Services other than via API endpoints provided by cloudeo within the NoR Portal or a NoR Service;

      6.4.3. Post or transmit any file which contains viruses, worms, trojan horses or any other contaminating or destructive features, or that otherwise interfere with the proper working of the NoR Portal and/or the NoR Services;

      6.4.4. Attempt to decipher, decompile, disassemble, or reverse-engineer or otherwise attempt to discover or determine the source code of any software or any proprietary algorithm used, comprising or in any way making up a part of the NoR Portal and/or the NoR Services;

      6.4.5. Attempt to probe, scan or test the vulnerability of the NoR Portal and/or the NoR Services or breach or impair or circumvent any security or authentication measures protecting the NoR Portal and/or the NoR Services;

      6.4.6. Frame or mirror the NoR Portal and/or the NoR Services; or

      6.4.7. Use any device, software, or routine that interferes with any application, function, or use of the NoR Portal and/or the NoR Services, or is intended to damage, create undue load, detrimentally interfere with, surreptitiously intercept, or expropriate any system, data, or communication stored or transmitted therewith.

      6.4.8. Use the NoR Portal’s comments and evaluation function in any way that infringes cloudeo‘s or any third parties rights such as – but not limited to – copyrights, trademark rights, trade secrets rights or rights of personality. Cloudeo does not check the information entered by the Customer or its users for correctness or potential infringements.

    6.5. If the Customer makes available to cloudeo or a NoR Service Provider data, copyright protected works and/or any other legally or contractually protected material or information, the Customer shall ensure that it has sufficient usage rights to do so and shall grant to cloudeo or a NoR Service Provider all usage rights required to use such data, works, material or information as required for the purposes of the provision of the purchased NoR Services and for implementation of any other agreement entered into between the Parties.

7. Rights of use

    7.1. Cloudeo hereby grants to the Customer the limited, non-exclusive, non-sub-licensable, revocable and non-transferable right to access the NoR Portal solely in accordance with these Terms of Use, during the term of this agreement as provided in Section 11 below. With regard to purchased NoR Services, cloudeo grants to the Customer the limited, non-exclusive, non-sub-licensable, revocable and non-transferable right to use those NoR Services in accordance with these Terms of Use, applicable supplementary terms and conditions of the respective NoR Service Provider and the respective order of such NoR Services.

    7.2. Provided that cloudeo makes new versions, updates, upgrades, modifications or extensions of the NoR Portal and the NoR Services available or carries out other changes with respect to the NoR Portal and the NoR Services not subject to a change of this agreement pursuant to Section 15 below, the provisions of this Section shall also apply thereto.

    7.3. The Customer shall have no rights which are not explicitly granted to the Customer under these Terms of Use. The Customer shall not be entitled to use the NoR Portal and the NoR Services or to make the NoR Portal and the NoR Services available to third parties beyond the scope of use granted in these Terms of Use and – if applicable – supplementary terms and conditions of the respective NoR Service Provider. In particular, it is not permitted to duplicate the NoR Portal and the NoR Services or to provide it for use for a limited period of time, in particular not to lease it or loan it.

    7.4. If the Customer violates any of the provisions of this Section, cloudeo shall be entitled to and reserves the right to suspend the Customer’s access to the NoR Portal and the NoR Services, provided that such suspension remedies the violation. The Customer shall be informed prior to such suspension. In case of repeated violations or severe violations by the Customer, cloudeo shall be entitled to terminate the account for cause without the need for a reasonable cure period following a warning notification by cloudeo, unless Customer is not responsible for the violation. In addition to the suspension or termination of the Customer’s account cloudeo is also entitled to suspend or terminate purchased NoR Services accordingly.

8. Intellectual Property

    Cloudeo and the NoR Service Providers own all rights, titles, and interests in and to the NoR Portal or the NoR Services and all related technology and intellectual property rights. It is not permitted to remove notices and notations in the NoR Portal and/or the NoR Services that refer to confidentiality, copyrights, trademark rights, patent rights and other intellectual property rights.

9. Suspension

    9.1. Cloudeo may suspend the Customer’s access to the NoR Portal and/or the NoR Services, if cloudeo reasonably determines that

      9.1.1. the Customer’s use of the NoR Portal and/or the NoR Services

      · poses a security risk to the NoR Portal and/or the NoR Services and/or any third party;

      · may adversely impact the NoR Portal and/or the NoR Services or the systems or content of any other customer;

      · infringes any applicable law or any third party right;

      · may subject cloudeo, cloudeo’s affiliates, or any third party to liability, or

      · may be fraudulent.

      9.1.2. the Customer or any Customer’s user is in breach of this Terms of Use;

      9.1.3. the Customer is delinquent on its payment obligations regarding a purchase of NoR Services for more than 30 days; or

      9.1.4. the Customer has ceased to operate in the ordinary course, has made an assignment for the benefit of creditors or similar disposition of the Customer’s assets, or has become the subject of any bankruptcy, reorganization, liquidation, dissolution or similar proceeding.

    9.2. If the Customer uses a NoR Voucher to purchase NoR Services, cloudeo may suspend the provision of NoR Services if the Customer does not comply with its obligations under the NoR Voucher, especially – but not limited to – with regard to the Customer’s obligation to provide feedback on the purchased NoR Service.

    9.3. Cloudeo will notify the Customer about the suspension by sending a communication to the email address associated with Customer’s account prior to the suspension unless, due to the seriousness and urgency of the matter, cloudeo needs to act immediately and is unable to provide prior notice.

    9.4. Unless the Customer’s account and/or the purchased NoR Services have not been terminated by cloudeo in accordance with Section 7 above, the suspension shall be revoked as soon as the Customer has resolved the problem giving rise to the suspension.

    9.5. The right of cloudeo to suspend the Customer’s access to the NoR Portal and/or the NoR Services is in addition to cloudeo’s right to terminate the Customer’s account pursuant to Section 12 and other remedies that cloudeo may have under the applicable law.

10. Liability

    10.1. Cloudeo is liable in accordance with the statutory provisions

      10.1.1. in the event of intent or gross negligence;

      10.1.2. in accordance with the provisions of the German Product Liability Act or any applicable corresponding mandatory laws;

      10.1.3. within the scope of a guarantee given by cloudeo; and

      10.1.4. for loss of life or bodily injury and/or harm.

    10.2. Cloudeo shall be liable for simple negligence in situations which go beyond those specified in Section 10.1 above only if it has breached an essential contractual obligation. An essential contractual obligation is an obligation which enables the proper performance of a contract or whose breach endangers the attainment of the contractual purpose and on whose compliance the other Party may regularly rely. If an essential contractual obligation is breached, liability for material and financial losses shall be limited to losses which are foreseeable and typical for the contract. The same shall apply to lost profit and unrealized savings. Liability for other atypical, consequential and indirect losses shall be excluded.

    10.3. The foregoing limitations of liability shall also apply in the event of fault by a person engaged by cloudeo, including – but not limited to – the respective NoR Service Provider, in the performance of its obligations and to the personal liability of employees, representatives and corporate bodies of cloudeo and NoR Service Providers.

    10.4. Cloudeo shall in no event be liable for the correctness and lawfulness of information entered in accordance with Section 6.4.8 above. If cloudeo is held liable for such information by a third party, the Customer shall indemnify and hold harmless cloudeo against any claims by such third party, including – but not limited to – claims for injunctive relief and damages.

    10.5. Neither cloudeo nor a NoR Service Provider shall be liable in case the Customer does not fulfil its obligations under Section 6.5 above. If cloudeo or a NoR Service Provider are held liable for the breach of the Customer’s obligations under Section 6.5 above by a third party the Customer shall indemnify and hold harmless cloudeo against any claims by such third party, including – but not limited to – claims for injunctive relief and damages.

11. Term and Termination

    11.1. The Customer’s account – subject to these Terms of Use – starts with the date of confirmation of the Registration and will remain in effect until terminated by cloudeo or by the Customer.

    11.2. Termination for convenience: The Customer may terminate its account at any time for any reason and close it for all NoR Services, for which cloudeo provides an account closing mechanism.

    11.3. Termination for cause: The right of the parties to terminate this agreement under these Terms of Use for cause and without notice shall remain unaffected. Good cause shall be in evidence when one party grossly breaches express obligations under these Terms of Use and/or the supplementary terms and conditions of a purchased NoR Service, in particular if the Customer utilizes the NoR Portal or a NoR Service outside the scope of these Terms of Use and/or the supplementary terms and conditions of a purchased NoR Service, in particular but not limited to a use beyond its obligations pursuant to Section 6 above and remains in breach after the end of a reasonable cure period following a warning notification by cloudeo.

    11.4. Effect of Termination: Upon the effective date of termination

      11.4.1. the NoR Services will no longer be accessible to the Customer and cloudeo will not be responsible for providing backups of the Customer’s data and activities;

      11.4.2. the Customer remains responsible for all fees and charges which have incurred until the effective date of termination, including fees and charges for in-process tasks completed after the effective date of termination;

      11.4.3. all authorizations of the Customer according to these Terms of Use end. A termination of these Terms of Use also entails a termination of all user accounts provided to employees or end users of the Customer.

12. Data Protection / Privacy

    12.1. The parties shall comply with the provisions of data protection law respectively applicable and shall bind their employees engaged in connection with this contractual relationship and the execution thereof to data secrecy and confidentiality in accordance with the applicable laws, except to the extent that they are already under a general obligation to act accordingly.

    12.2. To the extent the Customer collects and processes personal data via the NoR Portal and/or NoR Services, the Customer guarantees that he is authorised to do so in accordance with all applicable laws and regulations and has entered into all necessary agreements with third parties or concerned individuals in a valid manner in order to allow for cloudeo or its subcontractors to perform the tasks under this agreement, including any potential access and processing of personal data which may be subject to special protection under applicable laws.

    12.3. Cloudeo shall only collect and process Customer-related personal data to the extent required to execute these Terms of Use, to provide NoR Services purchased by the Customer or as otherwise permitted by applicable laws. The Customer acknowledges and confirms the collection and processing of such personal data to this extent.

    12.4. To the extent the use of a NoR Service constitutes or implies data processing by a NoR Service Provider on behalf of the Customer in terms of Article 28 of the EU General Data Protection Regulation, this constitutes a processing or sub-processing relationship between the NoR Service Provider and the Customer. Such processing activities shall be subject to a separate data processing agreement further regulating the mutual rights and obligations and that is provided by cloudeo and/or the respective NoR Service Provider – whichever applicable – in accordance with Sec. 5.1 above (“Data Processing Agreement”). The Customer shall enter into such Data Processing Agreement prior to making use of the NoR Services provided the applicable law requires to do so.

13. Confidentiality

    Either party shall exercise the same degree of care (but not less than reasonable care) employed by such party to prevent the unauthorized use and disclosure of its own confidential information in order to prevent the unauthorized use and disclosure of the other party’s confidential information.

14. Applicable law and place of jurisdiction

    14.1. The contractual relationships between the parties with regard to the access to the NoR Portal and the access to and use of NoR Services shall be governed by the laws of the Federal Republic of Germany. Application of the UN Convention on Contracts for the International Sale of Goods (CISG) is excluded.

    14.2. The exclusive place of jurisdiction for any legal disputes arising from or in connection with these Terms of Use and any terms and conditions governing NoR Services purchased by the Customer shall be the place of establishment of cloudeo, currently Munich, Germany.

15. Changes to the NoR Services, the NoR Portal and its Terms of Use

    15.1. At any time, cloudeo shall have the right to modify the NoR Portal and the NoR Services provided free of charge, make new NoR Services available either free of charge and/or for a fee and to discontinue the provision of free NoR Services, as well as to change these Terms of Use. Cloudeo will take due care of Customer’s legitimate interests.

    15.2. Cloudeo reserves the right to modify paid NoR Services purchased by the Customer and the present Terms of Use, if this is necessary to meet the technical requirements of connecting networks, devices or computers, any changes in laws or regulations or with regard to further developments, as far as the basic functionalities of the respective purchased NoR Service and the essential characteristics of the Terms of Use are retained. The Customer shall be notified of changes by email no later than thirty (30) calendar days before the planned effective date of the changes, insofar as the modifications involve a restriction on the usability of data generated or other disadvantages or additional charges (e.g. adaptation expenses). If the Customer does not object within thirty (30) days of receipt of the notification and continues to use the purchased NoR Service after expiry of the period for objection, the changes shall be deemed to have been effectively agreed. In the event of an objection, the contractual relationship shall be continued subject to the conditions applying thereto. If an objection is raised, cloudeo is entitled to terminate the order for the purchased NoR Service subject to a one (1) month notice period. Customer shall be advised of its right to object and of the consequences in the change notification.

16. Miscellaneous

    16.1. Force Majeure: Operational disruptions caused by force majeure or other unavoidable events beyond cloudeo’s reasonable control, which could not be averted with reasonable effort, which could not have been foreseen even when exercising with extreme care, and which make cloudeo’s obligations under these Terms of Use considerably more difficult or completely or partially impossible, such as strikes, lockouts, exceptional weather conditions, operational or traffic disruptions and transport obstructions, discharge cloudeo from its obligations under these Terms of Use for the duration of such an event.

    16.2. The Customer may not assign any or all portion of its obligations without the prior written consent of cloudeo, not to be unreasonably withheld.

    16.3. Should any provision of these Terms of Use be or become invalid or unenforceable, this shall not affect the remaining provisions. Instead of the provision that is or has become invalid or unenforceable, a new reasonable provision which is permissible under the law and which comes as closest as possible to the economical intent of the original provision shall come into effect.