ACCEPTABLE USE POLICY (AUP)
This Acceptable Use Policy (“AUP”) identifies how Customer and Customer’s customers (as applicable) are to use Núna Services. Unless otherwise defined herein, all capitalized terms shall have the meaning set forth in the Terms of Service (TOS), which is hereby incorporated by reference.
1. Infringement or generally in violation of laws
Services may not be used as follows:
- To send unsolicited bulk and/or commercial messages, “safe lists,” email bombing, or spamming in violation of the CAN-SPAM Act.
- To infringe upon the intellectual property rights of a third party by using Customer Content (including text, graphics, music, videos or other copyrightable material) without proper authorization from such third party or in violation of the Digital Millennium Copyright Act.
- To misappropriate or infringe the patents, trademarks or other intellectual property rights of any third party.
- To traffic illegal drugs, for illegal gambling, or other any products or services that are prohibited under applicable law.
- In violation of any law.
- In violation of U.S. Export Control Laws.
- To sell any controlled substance without prior proof of appropriate permit(s).
- To gain unauthorized access to the computer networks of any party in violation of the Computer Fraud and Abuse Act.
2. Generally offensive and other harmful activities
Services may not be used as follows:
- In connection with pornography of any kind.
- In connection with obscene materials.
- To threaten persons with bodily harm.
- To make harassing or abusive statements or messages.
- To solicit the performance of acts or services that are illegal under applicable law.
- For tortuous or actionable activities such as defamation.
- To forge or misrepresent message headers, whether in whole or in part, to mask the originator of the message.
- To support hacker focused sites/archives/programs.
- To support websites that promote illegal activity.
- To support hateful/racist/harassing oriented websites.
- To support forums and/or websites that distribute or link to illegal or pirated content or materials of any kind.
- To support fraudulent or misleading websites.
- To provide passwords or access codes to persons not authorized to receive such materials by the operator of the system requiring the password or access code.
3. Abuse and Unsupported use of Services
- In connection with any other disruptive or abusive activity.
- In Internet Relay Chat scripts and/or bots.
- For proxy scripts/anonymizers.
- Image hosting scripts for users other than Customer’s, AutoSurf/PTC/PTS/PPC sites.
- IP Scanners.
- For brute force programs/scripts.
- For file dump and mirror scripts or commercial audio and/or video streaming.
- For escrow/bank debentures/trading programs.
- For high-yield interest programs or related sites.
- For investment websites (such as or similar to E-Gold Exchange, Second Life/Linden Exchange, Ponzi, Multi-Level Marketing, or Pyramid Schemes).
- For prime bank programs.
- For lottery websites or for use with MUDs, RPGs, PBBGs.
- Running any type of web spider or indexer.
- Running any bit torrent application, tracker, or client.
- Participate in any file sharing or peer-to-peer activities.
- Cron entries with intervals of less than 15 minutes.
- To cause denial of service attacks against Núna or other network hosts or Internet users or to otherwise degrade or impair the operation of Núna’s servers and facilities or the servers and facilities of other network hosts or Internet users.
- To post messages or software programs that consume excessive CPU time or storage space.
- To resell Núna provided scripts installed on Núna’s servers.
- To subvert, or assist others in subverting, the security or integrity of any Núna systems, facilities or equipment.
- To distribute or post any virus, worm, Trojan horse, or computer code intended to disrupt services, destroy data, destroy or damage equipment, or disrupt the operation of the Services.
- To conduct port scans or other invasive procedures against any server (except any server for which Customer is an authorized system administrator).
- In any other manner to interrupt or interfere with internet usage of other entities.
4. Generally Prohibited use of Services
- In any manner that might subject Núna to unfavorable regulatory action, subject Núna to any liability for any reason, or adversely affect Núna’s public image, reputation or goodwill, including, without limitation, sending or distributing sexually explicit, hateful, vulgar, racially, ethnically or otherwise objectionable materials as determined by Núna in its sole discretion; or
- As a backup or storage device except as permitted as a control panel backup of Customer’s account.
5. High Risk Use Prohibited
Neither Customer nor Customer’s customer(s) shall use Services in connection with anything that may result in death, serious bodily injury, environmental contamination, disruption or loss of personal or real property.
Núna expressly disclaims any obligation to monitor its Customers and Customer’s customers with respect to violations of this AUP. Núna has no liability or responsibility for the actions of any of its Customers and Customer’s customer(s) or any Customer Content that may be posted by Customer or Customer’s customer(s) on any website.
If Núna learns of a violation of this AUP, Núna will respond to the applicable Customer and may, in Núna’s sole discretion, take any of the following actions, in accordance with the severity and duration of the violation:
- Suspend the offending Customer from use and access of Services;
- Terminate the offending Customer from use of Services;
- Remove the Customer Content that violates this AUP; and/or
- Take other action in accordance with this AUP or under applicable law to protect Núna’s interest.
8. Reservation of Rights
Núna reserves the right to cooperate with appropriate legal authorities in investigations of claims of illegal activity involving Núna’s Services, Customer and Customer’s customer(s). Núna reserves all other rights to respond to violations of this AUP to the extent of applicable law and in accordance with any applicable contractual obligations. Núna may utilize technical means to monitor communications into, and out of, its network facilities to prevent the introduction of viruses or other hostile code, to prevent intrusions and otherwise to enforce this AUP and each Customer agrees that Núna is authorized to monitor its communications through Núna’s network for such purposes.
9. Billing and Payment
- Each month, or other period agreed and accepted by Núna and, Customer shall be invoiced for Services as set forth in the Order Form and Customer shall immediately pay the invoice accordingly to the applicable payment requires. Services are billed in advance and are payable in either U.S. Dollars, or Icelandic króna, as appropriate. Núna may charge Customer a late fee and/or interest at the maximum rate permitted by law, whichever is larger, for any invoice that is not paid within thirty (30) days from the invoice generation date.
- Núna may increase the Service fees at any time after expiration of the Initial Term by providing seven (7) days prior written notice thereof to Customer.
- Service fees do not include any applicable sales, use, revenue, excise or other taxes imposed by any taxing authority with respect to the Services or any software provided hereunder (excluding any tax on Núna’s net income). All such taxes will be added to Customer’s invoices for Services as separate charges to be paid by Customer.
- If Núna collects any payment due at law or through an attorney at law or under advice therefrom or through a collection agency, or if Núna prevails in any action to which they are parties, Customer will pay all costs of collection, arbitration and litigation, including, without limitation, all court costs and Núna’s reasonable attorney fees.
- If any payment is returned for insufficient funds or other reason(s), Núna may impose a processing charge in addition to fees and interest described above in this section.
10. Núna as a Reseller or Licensor
Núna is acting only as a reseller or licensor of the hardware, software and equipment used in connection with the products and/or Services that were or are manufactured or provided by a third party (“Non-Núna Product”). Núna shall not be responsible for any changes in the Services that cause the Non-Núna Product to become obsolete, require modification or alteration, or otherwise affect the performance of the Services. Any malfunction or manufacturer’s defects of Non-Núna Product either sold, licensed or provided by Núna to Customer or purchased directly by Customer used in connection with the Services will not be deemed a breach of Núna’s obligations under this Agreement.
Any rights or remedies Customer may have regarding the ownership, licensing, performance or compliance of Non- Núna Product are limited to those rights extended to Customer by the manufacturer of such Non-Núna Product. Customer is entitled to use any Non-Núna Product supplied by Núna only in connection with Customer’s permitted use of the Services. Customer shall use its best efforts to protect and keep confidential all intellectual property provided by Núna to Customer through any Non-Núna Product and shall make no attempt to copy, alter, reverse engineer, or tamper with such intellectual property or to use it other than in connection with the Services. Customer shall not resell, transfer, export or re-export any Non-Núna Product, or any technical data derived therefrom, in violation of any applicable United States or foreign law.
11. Disclaimer of Warranty
The services provided under this Agreement are provided on an “as-is” and “as available” basis. Núna makes no warranties of any kind, either expressed or implied, including but not limited to warranties of merchantability or fitness for a particular purpose, or non-infringement, for the services or any equipment Núna provides. Núna makes no warranties that the services will not be interrupted or error free; nor does Núna make any warranties as to the results that may be obtained from the use of the services or as to the accuracy, reliability or content of any information, services or merchandise contained in or provided through the services. Núna is not liable, and expressly disclaims any liability for Customer content of any data transferred either to or from Customer; or stored by Customer, or any of Customer’s customers via the services provided by Núna. No oral advice or written information given by any entity will create a warranty; nor may you rely on any such information or advice.
12. Limited Warranty
Núna represents and warrants to Customer that the Services will be performed (a) in a manner consistent with industry standards reasonably applicable to the performance thereof; (b) at least at the same level of service as provided by Núna generally to its other Customers for the same Services; and (c) in compliance in all material respects with the applicable Service descriptions. Customer will be deemed to have accepted such Services unless Customer notifies Núna, in writing, within thirty (30) days after performance of any Services of any breach of the foregoing warranties. Customer’s sole and exclusive remedy, and Núna’s sole obligation, for breach of the foregoing warranties shall be for Núna, at its option, to re-perform the defective Services at no cost to Customer, or, in the event of interruptions to the Services caused by a breach of the foregoing warranties, issue Customer a credit in an amount equal to the current monthly service fees pro-rated by the number of hours in which the Services have been interrupted. Núna may provision the Services from any of its data centers and may from time to time re-provision the Services from different data centers.
Except as expressly provided in this section, Núna makes no representations or warranties of any kind, express or implied, with respect to the services or any software provided under this agreement, including, without limitation, any warranty of merchantability, fitness for a particular purpose, title or non-infringement of third-party rights, and Núna hereby expressly disclaims the same. Without limiting the foregoing, any third-party software or product provided to Customer hereunder is provided “as-is,” without any condition or warranty whatsoever. Núna does not warrant that the services will be uninterrupted, error-free or completely secure.
13. Limitation of Liability
- In no event will Núna’s liability in connection with the services, any software provided hereunder or any order, whether caused by failure to deliver, non-performance, defects, breach of warranty or otherwise, exceed the aggregate service fees paid to Núna by Customer during the 12-month period immediately preceding the event giving rise to such liability.
- Núna cannot guarantee continuous service, service at any particular time, integrity of Customer content, information or Customer content stored or transmitted via the internet. Núna will not be liable for any unauthorized access to, or any corruption, erasure, theft, destruction, alteration or inadvertent disclosure of, customer content, information or customer content transmitted, received or stored in connection with services.
- Except as expressly provided below, neither party shall be liable in any way to the other party or any other person for any lost profits or revenues, loss of use, loss of data or costs of procurement of substitute goods, licenses or services or similar economic loss, or for any punitive, indirect, special, incidental, consequential or similar damages of any nature, whether foreseeable or not, under any warranty or other right hereunder, arising out of or in connection with the performance or non-performance of any order, or for any claim against the other party by a third party, regardless of whether it has been advised of the possibility of such claim or damages.
- The limitations contained in this Section 13(d) apply to all causes of action in the aggregate, whether based in contract, tort or any other legal theory (including strict liability), other than claims based on fraud or willful misconduct. The limitations contained in Section 13(d) shall not apply to Customer’s indemnification obligations.
- Notwithstanding anything to the contrary in this Agreement, Núna’s maximum liability under this Agreement for all damages, losses, costs and causes of actions from any and all claims (whether in contract, tort, including negligence, quasi-contract, statutory or otherwise) shall not exceed the actual dollar amount paid by Customer for the Services which gave rise to such damages, losses and causes of actions during the 12-month period prior to the date the damage or loss occurred or the cause of action arose.
- Customer understands, acknowledges and agrees that if Núna takes any corrective action under this Agreement because that such corrective action may adversely any customers of Customers. Customer agrees that Núna shall have no liability to Customer, or any of Customer’s customers due to such corrective action by Núna.
- This limitation of liability reflects an informed, voluntary allocation between the parties of the risks (known and unknown) that may exist in connection with this Agreement.
Customer agrees to indemnify, defend and hold harmless Núna and its parent, subsidiary and affiliated companies, and each of their respective officers, directors, employees, shareholders, attorneys and agents (each an “indemnified party” and, collectively, “indemnified parties”) from and against any and all claims, damages, losses, liabilities, suits, actions, demands, proceedings (whether legal or administrative), and expenses (including, but not limited to, reasonable attorney’s fees) threatened, asserted, or filed by a third party against any of the indemnified parties arising out of or relating to Customer’s use of the Services, (ii) any violation by Customer of this Agreement, (iii) any breach of any representation, warranty or covenant of Customer contained in this Agreement or (iv) any acts or omissions of Customer.
Upon termination of this Agreement, suspension or cancellation of services, Customer will no longer have access to customer content or use of services.
- Independent Contractor
Núna and Customer are independent contractors and nothing contained in this Agreement places either party in the relationship of principal and agent, master and servant, partners or joint ventures.
- Governing Law and Jurisdiction
This Agreement will be interpreted, construed, and enforced in all respects in accordance with the laws of Iceland without regard to any conflict of law rules. The United Nations Convention on Contracts for the International Sale of Goods will not apply to this Agreement, the construction and enforcement of this Agreement, or any disputes arising out of or relating to this Agreement or the subject matters of this Agreement. Any legal proceeding arising out of or relating to this Agreement shall be subject to the exclusive jurisdiction and venue of the District Court of Western Iceland. Licensee consents to such courts and waives all defenses of lack of personal jurisdiction, improper venue, and forum non-convenience relating to this Agreement.
The headings herein are for convenience only and are not part of this Agreement.
- Entire Agreement and Amendments
This Agreement, including documents incorporated herein by reference, supersedes all prior discussions, negotiations and agreements between the parties with respect to the subject matter hereof, and this Agreement constitutes the sole and entire agreement between the parties with respect to the matters covered hereby. In case of a conflict between this Agreement and any purchase order, service order, work order, confirmation, correspondence or other communication of Customer or Núna, the terms and conditions of this Agreement shall control. No additional terms or conditions relating to the subject matter of this Agreement shall be effective unless approved in writing by any authorized representative of Customer and Núna. This Agreement may not be modified or amended except by another agreement in writing executed by the parties hereto; provided, however, that these Terms of Service may be modified from time to time by Núna in its sole discretion, which modifications will be effective upon posting to Núna’s web site.
All rights and restrictions contained in this Agreement may be exercised and shall be applicable and binding only to the extent that they do not violate any applicable laws and are intended to be limited to the extent necessary so that they will not render this Agreement illegal, invalid or unenforceable. If any provision or portion of any provision of this Agreement shall be held to be illegal, invalid or unenforceable by a court of competent jurisdiction, it is the intention of the parties that the remaining provisions or portions thereof shall constitute their agreement with respect to the subject matter hereof, and all such remaining provisions or portions thereof shall remain in full force and effect.
All notices and demands required or contemplated hereunder by one party to the other shall be in writing and shall be deemed to have been duly made and given upon date of delivery if delivered in person or by an overnight delivery or postal service, upon receipt if delivered by facsimile the receipt of which is confirmed by the recipient, or upon the expiration of five days after the date of posting if mailed by certified mail, postage prepaid, to the addresses or facsimile numbers set forth below the parties’ signatures. Either party may change its address or facsimile number for purposes of this Agreement by notice in writing to the other party as provided herein. Núna may give written notice to Customer via e-mail to the Customer’s e-mail address as maintained in Customer’s billing or other records.
No failure or delay by any party hereto to exercise any right or remedy hereunder shall operate as a waiver thereof, nor shall any single or partial exercise of any right or remedy by any party preclude any other or further exercise thereof or the exercise of any other right or remedy. No express waiver or assent by any party hereto to any breach of or default in any term or condition of this Agreement shall constitute a waiver of or an assent to any succeeding breach of or default in the same or any other term or condition hereof.
- Assignment; Successors
Customer may not assign or transfer this Agreement or any of its rights or obligations hereunder, without the prior written consent of Núna. Any attempted assignment in violation of the foregoing provision shall be null and void and of no force or effect whatsoever. Núna may assign its rights and obligations under this Agreement, and may engage subcontractors or agents in performing its duties and exercising its rights hereunder, without the consent of Customer. This Agreement shall be binding upon and shall inure to the benefit of the parties hereto and their respective successors and permitted assigns.
- Limitation of Actions
No action, regardless of form, arising by reason of or in connection with this Agreement may be brought by either party more than two years after the cause of action has arisen.
If this Agreement is signed manually, it may be executed in any number of counterparts, each of which shall be deemed an original and all of which together shall constitute one and the same instrument. If this Agreement is signed electronically, Núna’s records of such execution shall be presumed accurate unless proven otherwise.
- Force Majeure
Neither party is liable for any default or delay in the performance of any of its obligations under this Agreement (other than failure to make payments when due) if such default or delay is caused, directly or indirectly, by forces beyond such party’s reasonable control, including, without limitation, fire, flood, acts of God, labor disputes, accidents, acts of war or terrorism, interruptions of transportation or communications, supply shortages or the failure of any third party to perform any commitment relative to the production or delivery of any equipment or material required for such party to perform its obligations hereunder.
- No Third-Party Beneficiaries
Except as otherwise expressly provided in this Agreement, nothing in this Agreement is intended, nor shall anything herein be construed to confer any rights, legal or equitable, in any entity other than the parties hereto and their respective successors and permitted assigns. Notwithstanding the foregoing, Customer acknowledges and agrees that any supplier of third-party supplier that is identified as a third-party beneficiary in the Service description, is an intended third-party beneficiary of the provisions set forth in this Agreement as they relate specifically to its products or services and shall have the right to enforce directly the terms and conditions of this Agreement with respect to its products or services against Customer as if it were a party to this Agreement.
- Government Regulations
Neither Customer nor Customer’s customers may export, re-export, transfer or make available, whether directly or indirectly, any regulated item or information to anyone outside Iceland in connection with this Agreement without first complying with all export control laws and regulations which may be imposed by the Icelandic government and any country or organization of nations within the jurisdiction Customer operates or does business.
Customer agrees that during the Term of this Agreement Núna may list Customer as a client on Núna’s website and in marketing materials (such use may include Customer’s trademark or trade name). Any other public reference to Customer by Núna requires the written consent of Customer.