General Conditions of Use of Application Propagation Environments (APEx)

Users are invited to read carefully the APEx Conditions and the Component Conditions before requesting access to, or using, the Application Propagation Environments (“APEx”) and any Project Component available on APEx.

1. The Application Propagation Environments (“APEx”) is a platform operated by the European Space Agency, an international intergovernmental organisation governed by its Convention, having its headquarters at 8-10 rue Mario Nikis, CS 45741, F-75738, Paris Cedex 75015, France (“ESA” or “the Agency”).

   The APEx Conditions, as defined below, are released by ESA and apply to all APEX Users.

2. The Project Components available on APEx are components under the sole control of their respective Component Managers.

   The Component Conditions, as defined below, are released by the respective Component Manager and apply to all APEx Users which are also Project Component Users.

    

1.   Definitions

Capitalized terms used in these APEx Conditions shall have the meanings assigned to them in this Article I.

Additional Terms	means: the Component Conditions; any other additional terms and conditions which a User is required to accept.
Embedded Content	means any content embedded into the APEx website, whether or not protected by IPR.
Intellectual Property Rights” or “IPR	means any patent, registered design, copyright, database right, design right, topography right, trademark, service mark, application to register any of the aforementioned rights, trade secret, right in unpatented know-how, right of confidence and any other intellectual or industrial property right of any nature whatsoever in any part of the world.
Project Component	means any information technology component (e.g. websites, data visualisation tools, workspaces, development environments etc.) requested and controlled by a Component Manager, under its sole responsibility, and made available by APEx;
Component Conditions	means the terms and conditions released by the Component Manager, under its sole responsibility, and governing the access and use of the corresponding Project Component by an APEx User;
APEx	means a multi-function platform operated by the APEx Project Consortium, for the Agency, released at URL https://apex.esa.int/.
APEx Project Consortium	means the consortium of relevant economic operators responsible for the operations, maintenance, and development of APEx services and infrastructure;
Component Manager	means the legal person representing a Project Consortium/a, which launches a Project Component on behalf of the Project Consortium/a, on APEx; reference to “Component Manager” includes the respective Project Consortium/a, unless otherwise specified;
Project Component	means the environment hosted by APEx and governed by Component Conditions, which cumulatively fulfils the following conditions: it is intended to enable the Project Component Users to access and utilise the Project Component; is under the editorial and administrative control of the Component Manager or designated representatives of the Project Consortium; and is made accessible to Project Component Users under the terms and conditions defined and provided by the Component Manager;
User(s)	means the natural and legal persons accessing, using or otherwise interacting with APEx or any Project Component. The categories of Users are identified in Section 3 herein.

 

2.   Scope and application of APEx Conditions and Component Conditions

 

2.1. APEx Conditions

• The APEx Conditions apply to the access, use and interaction with the APEX website and any of its Project Components.
• The APEx Conditions govern the relationship between:
  • the Agency and the APEx Project Consortium operating the APEx;
  • the Component Managers and their respective Project Component Users; and
  • the Users accessing APEx, including Project Component Users.
• The APEx Conditions are supplemented by:
  • the Component Conditions, as issued by the Component Managers, which govern access to and use of Project Components; and
  • any Additional Terms applicable.

 

2.2. Component Conditions

The Component Conditions and any Additional Terms released by Component Managers govern the relationship between Component Managers and their respective Project Component Users. They are not released by the Agency and are not binding thereon.

 

2.3. User acceptance, representations and warranties

By requesting access to, or by using APEx, Users:

• acknowledge and agree to comply with the APEx Conditions and all applicable Additional Conditions;

• represent and warrant having obtained all rights, authorisations and permits to submit such request and to accept the APEx Conditions and the Additional Terms also on behalf of the legal person for which the use is conducted.

   

3.   General use of APEx

 

3.1. Access and Usage

• APEx is a multi-function platform operated by the APEx Project Consortium, for the Agency, and accessible at URL https://apex.esa.int/.
• Users must comply with these APEx Conditions, as well as any Additional Terms applicable to specific functionalities or Project Components.
• Users must comply, at all times, with the eligibility conditions set forth below:

 

3.2. User Categories

• APEx Users. All Users accessing or interacting with APEx are “APEx Users”.
• Component Manager’s Users. The APEx Users who require access to, use, or otherwise interact with APEx for the purpose of launching and managing a Project Component are “Component Manager’s Users”.
• Project Component Users. The APEx Users who require access to, use, or otherwise interact with APEx for the purpose of using a Project Component are “Project Component Users”.

 

3.3. Eligibility Conditions

• General eligibility conditions

  Any natural person may become a User of APEx provided that such person has been duly authorized by their respective employer to access APEx on behalf of said employer, in accordance with the APEx Conditions.

  Access to APEx is contingent upon compliance with the APEx Conditions and no automatic entitlement to use APEx shall exist.

• Cumulative Eligibility Criteria

  The eligibility criteria outlined in this Article are cumulative. A User must satisfy all conditions to qualify for registration and use APEx.

 

3.4. Registration Procedure

To be eligible to register as a User of APEx, which is a mandatory pre-requisite for launching and utilising any Project Component on APEx, the prospective User must:

• complete the registration form available on APEx, providing all required information, including their full name and a verifiable email address;
• provide the formal written statement confirming that the eligibility requirements set out in the APEx Conditions are met;
• click “I accept” or similar confirmation button during the registration or when prompted, requiring explicit confirmation that the APEx User has agreed to be bound by the APEx Conditions.

In all instances where a registration procedure is opened by the Agency in APEx:

• the Users shall ensure that the contact details and other information requested by the Agency during the registration procedure are correct and complete; 
• once all the data and documents requested for registration have been submitted by a User, the application and the supporting documents may be checked by the Agency;
• the Agency may send the User an e-mail to the e-mail address provided, with a link to the confirmation of registration in APEx;
• upon receipt of the e-mail of confirmation of registration to APEx, the Users may be granted access to APEx for their use only as authorized herein. To do so, Users first have to confirm their activation by clicking on the link in the e-mail and also confirm that they accepted these APEx Conditions, the ESA Personal Data Protection Framework as well as the Additional Terms (if any);
• the User is responsible for keeping the access details secret. The User is also responsible for all use of the APEx account upon registration and may be held liable for any use in violation to these Conditions or prejudicial to the Agency or third parties. The User must notify the Agency in case of suspected or real unauthorized use of, or access to, the User’s account in APEx;
• all information requested by the Agency during the registration procedure that the User submits through APEx must be kept updated by the User. The User’s failure to do so will constitute a violation of these Conditions which may result in the immediate termination of the access to APEx and, thus, of any access to a Project Component.

No implicit authorization

The Agency reserves the right to reject any registration request for any reason. Additionally, the Agency may set out further conditions for access, at its sole discretion.

User profiles

If the function is available on APEx, Users may voluntarily add personal details to their profile within the scope of these APEx Conditions.

The Agency is not obliged to verify the identity of profile owners or the details provided in the profiles. The Agency therefore does not guarantee that each profile owner actually corresponds to the person whom the profile owner claims to be.

Users may terminate their access to APEx at any time using any means available on APEx. Termination automatically ends access to the Project Component and the contractual relationship established by the acceptance of these APEx Conditions (save the surviving terms and conditions). Thus, the User may no longer make use of the access. Upon termination, the Agency will block the username and the password. Upon deregistration from APEx and following the expiry of any statutory record-keeping periods, the Agency shall be entitled to irretrievably delete all data created in connection with a User’s participation.

 

4. Intellectual Property Rights

 

4.1. APEx and Embedded Content

The Agency and/or third-party licensors retain all Intellectual Property Rights (“IPR”) in APEx and Embedded Content, unless otherwise specified.

Users may not use, copy, download, duplicate, archive, modify, perform, publish, share, distribute, make available any Embedded Content or APEx features except as expressly permitted under the APEx Conditions or applicable Additional Terms. The Users may not attempt to obtain any Intellectual Property Rights in and to any Embedded Content or APEx features. The Users are also forbidden to create any kind of derivative works or materials using the Embedded Content or APEx features.

Users must not upload or share content on APEx that infringes any third-party rights, including IPR, or violates applicable laws or regulations.

 

4.2. User Content

If APEx contains a feature that enables Users to upload User Content in APEx, then:

• The User undertakes to ensure that the User Content submitted by the Users in APEx shall not:
  • contain trademarks, logos or trade names owned by others, or advertise or promote any brand or product of any kind, without permission, or contain any personal identification, such as license plate numbers, personal names, e-mail addresses or street addresses;
  • contain copyrighted materials owned by others (including photographs, sculptures, paintings and other works of art or images published on or in websites, television, movies or other media) without permission;
  • contain materials embodying the names, likenesses, photographs, or other indicia identifying any person, living or dead, without permission; communicate messages or images inconsistent with the positive images and/or goodwill to which the Agency wishes to associate;
  • be violent or derogatory of any ethnic, racial, gender, religious, professional or age group, profane or pornographic; be obscene or offensive, endorse any form of hate or hate group; defame, misrepresent or contain disparaging remarks about the Agency, or its activities or team, or other people, products or companies;
  • contain any materially dangerous activity; promote alcohol, illegal drugs, tobacco, firearms/weapons (or the use of any of the foregoing), any activities that may appear unsafe or dangerous, or any particular political agenda or message; and
  • depict, and cannot itself, be in violation of any law.
• the Users acknowledges and accepts that the Agency reserves the right, but disclaims any obligation or responsibility, to control, remove, to refuse to post User Content and/or to edit, block or remove posted User Content or to undertake the examination of the Content, including to check its completeness, accuracy, legality, relevance, quality or appropriateness for a particular purpose. The User remains responsible for its User Content, regardless of the examination or assessment made by the Agency;
• the Users is deemed having irrevocably granted the Agency a non-exclusive, royalty-free, worldwide, perpetual,  and transferable licence to use, reproduce, modify, adapt, publish, translate, create derivative works from, distribute, publicly perform and publicly display such User Content, in whole or in part, for the purposes of operating, improving, promoting, and maintaining APEx as well as for compliance with all applicable legal and regulatory requirements of the Agency;
• the Users is deemed having irrevocably represented and warranted to the Agency without a formal declaration being needed in this respect, that:
  • the User Content does not infringe upon any third-party Intellectual Property Rights or other rights;
  • the User is the owner of the intellectual property rights in the User Content or, at least, that the User obtained all necessary rights, licenses, approvals, authorisations and releases to submit such User Content under these APEx Conditions and to grant the rights to the Agency pursuant to the APEx Conditions.
• the User undertakes to defend, indemnify and hold harmless the Agency and the APEx Project Consortium, from any claims to the contrary. These obligations and warranties will survive the termination of User’s access and use of APEx, for the duration of the rights granted to the Agency.

 

5.   Project Components

 

5.1. Release

The Project Components, made available on APEx, are managed by Component Managers under their sole responsibility.

Access to and use of Project Components are subject to the respective Component Conditions, which apply to Project Component Users.  

The Component Conditions are released by the Component Manager simultaneously with the launch of that Project Component in APEx.

In case there is a specific agreement concluded between the Agency and the Component Manager, governing the terms and conditions for the release of a Project Component on APEx, the Component Manager shall ensure compliance with the terms and conditions of the applicable agreement.

 

5.2. Compliance

Component Managers are responsible for:

• ensuring that their Component Conditions comply with applicable laws and regulations and do not conflict with these APEx Conditions.
• overseeing the Project Component’s usage, in line with the specific agreement   to be concluded by the Agency with the Component Manager and/or the Project Consortium/a;
• establishing, releasing and updating the Component Conditions;
• ensuring compliance with the applicable laws, regulations and framework, including with the Project Consortium/a contractual framework;
• addressing disputes or issues arising from the access to, use of, and other interactions with the Project Component;
• ensuring that the Component Manager and Project Consortium refrain from any misleading communication in relation to the respective roles of the Agency, the Component Manager and the Project Consortium/a; 
• take into account any suggestion made by the Agency, should any information or communication issued by the Component Manager and/or Project Consortium/a appear as misleading or not compliant with their respective obligations towards ESA;

 

6.   Obligations of Users

 

Users shall:

• use APEx and its functionalities, including any Project Component, in accordance with these APEx Conditions and any Additional Terms.
• refrain from actions that could damage, disable or impair APEx or any Project Component.

Users shall not:

• access or attempt to access Project Components to which they are not authorized.
• share their credentials or allow unauthorized third parties to access APEx or any Project Component.

Users shall not present the Agency or the APEx Project Consortium in any manner that suggests it assumes liability or responsibility for the actions, activities or obligations of the Component Manager.

Users shall not instigate, support, maintain or authorize any action, or lawsuit against the Agency or the APEx Project Consortium on the ground that any use of User Content submitted pursuant to their registration in APEx infringes any of the User’s rights or the ones of User’s licensors.

All Users must observe all local, regional, national, and international laws, orders, directives, ordinances, treaties, rules and regulations which may apply to Users in connection with all aspects of the registration to, and use of, APEx. Users are solely responsible for acquiring the appropriate licenses, waivers, or permits from the applicable regulatory bodies or other applicable third parties.

 

7. Liability

 

7.1. Role of the Agency

The Agency serves solely as a technical provider, supported by the APEx Project Consortium, responsible for hosting and maintaining the infrastructure of APEx and Project Components.

The Agency provides APEx on an “as is” and “as available” basis and does not guarantee uninterrupted access to APEx or its functionalities or to Project Components.

The Agency does not assume any responsibility or liability for claims, damages, losses or disputes arising from the use, misuse, or inability to use APEx. This includes, but is not limited to, content uploaded, shared, or managed by the Component Manager or the Component Users.

 

7.2. Liability of Component Managers

All liabilities, whether legal, financial, operational or otherwise, arising in connection with any project Component shall rest solely and exclusively with the Component Manager. Component Managers are solely responsible for the management and content of their respective Project Components.

 

7.3. Limitation of Liability

Without limiting the generality of the foregoing, the Agency shall not be responsible or held liable for:

• any legal, financial, organisational or operational aspects of any Project Components;
• any actions or omissions of Component Managers or Project Component Users;
• any damages resulting from the use of APEx or Project Components,
• APEx’s potential malfunction, inoperability, maintenance procedures or corrective actions which may be undertaken from time to time ;
• any causes beyond the Agency’s reasonable control.

Should the User suffer a loss as a result of using APEx and the functionalities offered via APEx, the Agency shall be liable only in the event of wilful intent (including fraudulent intent) and gross negligence on the part of the Agency, provided that the claim is formulated by the User within one (1) months of the date when the first loss occurred. Any claims beyond the above time limit shall be excluded.

 

7.4. No endorsement by the Agency

The ability to release a Project Component on APEx does not constitute or imply any form of endorsement by the Agency of:

• the Project Component itself;
• the Component Manager or the Project Consortium/a;
• any activities, outputs or decisions thereof.

 

8.   Termination and Suspension

 

8.1. Termination

The Agency reserves the right to suspend or terminate a User’s access to APEx. This may trigger the suspension or termination of the access to a Project Component.

 

8.2. Suspension

Component Managers may suspend or terminate access to their Project Components in accordance with their respective Component Conditions.

 

8.3. Cases

The Agency may change, suspend or discontinue the use of APEx, of User’s account or of any feature thereof at any time, without prior notice, and shall have no liability to the User(s) for such change, suspension or discontinuance.  In particular, and without limitation:

• The Agency reserves the right to exclude or terminate access for any User who fails to comply with APEx Conditions or any applicable Additional Conditions; or engages in behaviour inconsistent with the Agency’s reputation, mission or legal framework.
• A User will be excluded from APEx when the User has been subject to a final judgement (res judicata) for fraud, corruption, involvement in a criminal organisation, money laundering or any other illegal activity; or the User infringed, or is reasonably suspected of infringing, any third-party rights, including but not limited to Intellectual Property Rights.

Also, there may be features of APEx conditional upon the fulfilment of certain conditions which will be deemed to be Additional Terms applicable to the User.

The User may not attempt to gain unauthorized access to APEx by any means.

Suspension or discontinuance of such use triggers suspension or, as the case may be, discontinuance of participation in a Project Component.

In case of termination of use, the contractual relation established between the Agency and the User by the acceptance of these APEx Conditions shall also end, save the surviving terms and conditions.

 

9.   Modifications

 

9.1. Modifications by the Agency

The Agency reserves the right to amend the APEx Conditions or the functionalities of APEx. Where feasible, the Agency may notify Users of material changes in advance. In any case, continued use of APEx following modifications constitutes acceptance of the amended APEx Conditions.

 

9.2. Modifications by the Component Managers

The Component Managers may amend the Component Conditions or the functionalities of the Project Component, as provided in the Component Conditions.

10.   Personal Data

 

• By registering on APEx, the Users irrevocably accept (and obtain acceptance from any concerned individuals, including team members) the processing of their personal data for the purposes as defined in and as presented in the Privacy Notice and Consent Form available on APEx.
• Personal Data is processed according to the ESA Personal Data Protection Framework, available at: http://www.esa.int/About_Us/Law_at_ESA/Highlights_of_ESA_rules_and_regulations
  The processing is notified under the DPNR: https://esateamsite.sso.esa.int/DCR/PDP/_layouts/15/DocIdRedir.aspx?ID=PKKMWAM5UKCP-335796410-79

 

11.   Applicable Law and Settlement of Disputes

 

• Except for personal data matters or incidents for which ESA Framework on Personal Data Protection shall apply and for which ESA Supervisory Authority shall have exclusive jurisdiction:
  • Without prejudice to the applicability of ESA Convention on privileges of the Agency, this Agreement shall be governed by and shall be interpreted in accordance with the Law of France.
  • All disputes between the Parties in connection with or arising out of the existence, validity, construction, performance and termination of this Agreement (or any terms thereof) which the Parties cannot resolve within 30 days from the date of a written notice from one Party to the other Party to notify the existing dispute, shall be finally settled under the Rules of Arbitration of the International Chamber of Commerce by 3 arbitrators appointed in accordance with said rules. The cost of arbitration, including the fees and expenses of the arbitrators, shall be shared equally by the Parties unless the award otherwise provides. Each Party shall bear its own representation fees and costs associated with the arbitration.  The arbitration proceedings shall be conducted in the English language in Paris (France) and the arbitration award shall be final and binding upon the Parties, their successors and assigns which shall comply in good faith with such decision.