Terms of Service (TOS)
Last updated: 1 May 2021
These Terms of Service (“Agreement”) are between Núna ehf. (“Núna”) and the entity identified in the Order Form (“Customer”) on the date indicated on the Order Form (“Effective Date”); and consists of:
- These terms and conditions;
- Service Level Agreement (SLA);
- Acceptable Use Policy (AUP);
- Order Form;
- Any applicable payment requirements.
If Customer does not agree to the terms of this Agreement,
The Customer is advised not to order or use Núna’s services.
- “Acceptable Use Policy” means the rules associated with the use of all Núna Services included in the Acceptable Use Policy
- “Customer Content” means all information provided to Núna by Customer or Customer’s customer in connection with the access and use of Services
- “License” means the rights granted by Núna to use, access, display, run and/or otherwise interact with Services
- “Order Form” means the form the Customer completes and submits to Núna to order Services
- “Service” means Cloud Servers, Cloud Clusters, Private Cloud, Virtual Private Servers (VPS), Dedicated Servers (as applicable), and any other Services made available to the Customer under this Agreement as detailed in the Order Form
- “Service Level Agreement” means service level agreements representing certain commitments Núna makes pertaining to offered Services, as detailed in Núna’s service level agreement
- “Term” has the meaning set forth in Section 3a of this Agreement
2. License to Use Services
- License to Customer
Subject to the terms of this Agreement, Núna grants the Customer a non-exclusive, non-assignable, non-sublicensable, royalty-free, limited right to access and use Services during the Term of this Agreement.
- Customer License to Núna
Subject to the terms of this Agreement Customer hereby grants Núna the right to use and access Customer Content solely in connection with providing Services to Customer, during the Term of this Agreement. To the extent Customer Content contains materials supplied by third parties, Customer hereby also grants to Núna a license to use and access such Customer Content pursuant to the terms of this Section 2(b). Núna reserves all rights not expressly granted.
- Limitations on Use
The Customer shall not reverse engineer, decompile or disassemble any Service. The Customer shall not rent, lease, lend, resell, or host to or for third parties any Services, except as expressly permitted under this Agreement.
- Internet Protocol (IP) Address Ownership
Núna may assign the Customer a Dedicated Internet Protocol (“IP”) address in connection with Services. Núna shall maintain and manage all IP addresses that may be assigned to the Customer by Núna. Further, Núna reserves the right to change or remove all such IP addresses, at its sole and absolute discretion. Customer shall have no right to use that IP address except as permitted by Núna in its sole and absolute discretion in connection with the Services, during the Term of this Agreement.
- Bandwidth and Disk Usage
The Customer agrees that bandwidth and disk usage shall not exceed the number of gigabytes specified on the Order Form (the “Agreed Usage”). Núna will monitor the Customer’s bandwidth and disk usage. Núna shall have the right to take corrective action if the Customer’s bandwidth or disk usage exceeds the Agreed Usage. Such corrective action may include the assessment of additional fees, disconnection or discontinuance of all Services, or termination of this Agreement. If Núna, in its sole and absolute discretion, takes any corrective action under this section, the Customer shall not be entitled to a refund of any fees paid in advance prior to such action.
Núna owns various intellectual property and technology rights associated with the delivery of Services to the Customer. The Customer’s rights with respect to the foregoing are limited to the rights to use Services that are granted under this Agreement. Núna does not license or transfer to the Customer, the Customer’s customers, or any other third party any of Núna’s technology or other intellectual property rights. All rights, title, and interest in Services, copyright, trade secret, trademark, service mark, etc., shall remain solely with Núna at all times. All Customer Content used, accessed, and processed by Núna shall retain ownership of its origin as specified by law.
3. Term, Termination, and Cancellation Policy
- License to Customer
Subject to the terms of this Agreement, Núna grants Customer a non-exclusive, non-assignable, non-sublicensable, royalty-free, limited right to access and use Services during the Term of this Agreement.
4. No access to Customer Content Upon Termination
Upon termination of this Agreement, suspension, or cancellation of services, the Customer will no longer have access to any Customer content or use of services.
5. Customer’s Responsibilities
- The Customer shall ensure that all information provided under this Agreement is current and accurate. This includes all contact, billing, domain name, and other information Núna needs to provide Services to Customers. The Customer will immediately notify Núna of any change in Customer’s mailing address, telephone, e-mail, or other contact information.
- The Customer is solely responsible for the quality, performance, and all other aspects of the Customer Content and the goods or services provided through the Customer’s website.
- The Customer will cooperate fully with Núna in connection with Núna’s performance of the Services. The Customer must provide any equipment or software that may be necessary for the Customer to use the Services. Delays in the Customer’s performance of its obligations may impair Núna’s ability to provide Services to the Customer.
- The Customer assumes full responsibility for providing its Customers with any required disclosure or explanation of the various features of the Customer’s own product offerings and any goods or services described therein, as well as any rules, terms, or conditions of use. Further, the Customer is solely responsible for all Customer Content electronically transmitted, uploaded, or used on the Customer’s website. The Customer shall be fully responsible for uploading all Customer Content to the Customer’s website and supplementing, modifying, and updating the same. The Customer is also responsible for ensuring that the Customer Content and all aspects of the Customer website are compatible with the hardware and software used by Núna to provide the Services, as the same may be changed by Núna from time to time. Specifications for the hardware and software used by Núna to provide the Services will be available through Núna’s control panel software. The Customer shall periodically access the Customer’s control panel to determine if Núna has made any changes thereto. Núna shall not be responsible for any damages to the Customer Content, the Customer’s website, or other damages or any malfunctions or service interruptions caused by the Customer’s failure to meet the hardware and software requirements specified by Núna.
- Customer shall maintain a separate backup file of Customer Content used in connection with Services during the Term of this Agreement.
- The Customer will ensure that scripts and/or programs installed are secure and permissions of directories are set properly, regardless of installation method. When possible, the Customer shall make permissions as restrictive as possible. The Customer is ultimately responsible for all actions relating to the use of Services. This includes the compromise of credentials such as username and password. The Customer is required to use a secure password. Núna, in its sole discretion, reserves the right to enforce minimum password strength requirements and/or perform audits of customer passwords to prevent weak passwords from being used. Núna reserves the right to change Customer passwords that have been identified as weak or compromised. Núna will notify the Customer of such changes and forward the new, more protective password to the Customer. The Customer’s account may be suspended until a more secure password is produced and used.
- Password recovery is not possible. Customer assumes full responsibility for securely maintaining their password(s). The Customer agrees and acknowledges that no Núna or other representative has the ability to view or recover their password. Upon receiving a proper and authenticated request, Núna or its representatives or assigns may reset passwords. In Núna’s sole and absolute discretion a fee may be charged for this service.
6. Customer as Reseller
- Generally speaking, the Customer is prohibited from reselling Services
- The Customer may only resell Services offered under this Agreement (“Reseller”) with the prior written consent of Núna. Specifically, Resellers are permitted only the number of Reseller accounts identified on the Order Form.
- Unless Reseller opts to have Núna provide customer support on its behalf via mutual written consent, and pays any associated fees, Reseller is solely responsible for supporting its customers. Núna will not directly provide support to Reseller’s customers. Support requests are permitted by the Customer only.
- Resellers are also responsible for all Customer Content that is stored or transmitted under their Reseller account and all activities of their customers. Núna will hold Reseller responsible for any violations of this Agreement as a result of Reseller’s customer violation, whether knowingly or not. Reseller acknowledges and accepts responsibility, including financial, for any bandwidth or other overages caused by Reseller’s customers, whether intentional or not.
7. Customer Representations and Warranties
- The Customer hereby represents and warrants to Núna, and agrees that during the Term thereafter the Customer will ensure that:
- The Customer is the owner or valid licensee of the Customer Content and each element thereof, and the Customer has secured all necessary licenses, consents, permissions, waivers, and releases for the use of the Customer Content and each element thereof, including without limitation, all trademarks, logos, names and likenesses contained therein, without any obligation by Núna to pay any fees, residuals, guild payments or other compensation of any kind to any person;
- The Customer’s use, publication, and display of the Customer Content will not infringe any copyright, patent, trademark, trade secret, or other proprietary or intellectual property right of any person, or constitute defamation, invasion of privacy, or violation of any right of publicity or any other right of any person, including, without limitation, any contractual, statutory or common law right or any “moral right” or similar right however denominated;
- The Customer will comply with all applicable laws, rules, and regulations regarding Customer Content and the Customer’s website and will use Services only for lawful purposes; and
- The Customer shall use best efforts to ensure that Customer Content is and will at all times remain free of all computer viruses, worms, Trojan horses, and other malicious code.
- The Customer shall be solely responsible for the development, operation, and maintenance of Customer’s website, online store, and e-commerce activities, for all products and/or services offered by the Customer or appearing online and for all contents and materials appearing online or on the Customer’s products, including, without limitation:
- The accuracy and appropriateness of the Customer Content and content and material appearing in its store or on its products;
- Ensuring the Customer Content and all other content and materials appearing anywhere on the Customer’s website, including in its store, or on its products, do not violate or infringe upon the rights of any person, and
- Ensuring that the Customer Content and the content and materials appearing anywhere on the Customer’s website, including in its store or on its products are not defamatory or otherwise illegal. The Customer shall be solely responsible for accepting, processing, and filling customer orders and for handling all customer inquiries or complaints. The Customer shall be solely responsible for the payment and satisfaction of all taxes associated with the Customer’s website and online store.
Núna and Customer shall treat the terms and conditions of this Agreement as confidential and shall not disclose them to any third party except in the furtherance of the parties’ business relationship with each other or as required by an order from a court of competent jurisdiction.
9. Billing and Payment
- Each month or other period agreed and accepted by Núna and, the Customer shall be invoiced for Services as set forth in the Order Form and the Customer shall immediately pay the invoice accordingly to the applicable payment requirements. Services are billed in advance and are payable in either U.S. Dollars, or Icelandic króna, as appropriate. Núna may charge the 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 the expiration of the Initial Term by providing seven (7) days prior written notice thereof to the Customer.
- Service fees do not include any applicable value-added (VAT), 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 the Customer’s invoices for Services as separate charges to be paid by the 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, the 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 the Customer may have regarding the ownership, licensing, performance or compliance of Non- Núna Product are limited to those rights extended to the Customer by the manufacturer of such Non-Núna Product. The Customer is entitled to use any Non-Núna Product supplied by Núna only in connection with the Customer’s permitted use of the Services. The Customer shall use its best efforts to protect and keep confidential all intellectual property provided by Núna to the 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. The 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, international, 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 and any data transferred either to or from the Customer or stored by the 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 should anyone rely on any such information or advice.
12. Limited Warranty
- Núna represents and warrants to the 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. The Customer will be deemed to have accepted such Services unless the Customer notifies Núna, in writing, within thirty (30) days after the 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 the 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 the 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, the integrity of Customer Content, information, or Customer Content stored or transmitted via the internet regardless of the final destination or disposition of said Customer Content. 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 on 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 the 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 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.
- The Customer understands, acknowledges, and agrees that if Núna takes any corrective action under this Agreement for any reason that such corrective action may adversely any customers of Customers. The 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 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.
- Independent Contractor
Núna and the 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 the 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 an authorized representative of the 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 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 thirty 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 the Customer via e-mail to the Customer’s e-mail address as maintained in the 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
The 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 the 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 the 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 the Customer by Núna requires the written consent of the Customer.
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