Data and Communication Services Agreement

Last Updated:  October 26, 2022

THIS DATA AND COMMUNICATIONS SERVICES AGREEMENT (this “Agreement”) applies to certain data services including, but not limited to, access to the Internet and a local intranet via wired or wireless data connections, print services, use of computing resources, or other data and communications resources (collectively, the “Services”) provided to you by GrowCo Columbia, Inc.  (“GC”) and in consideration for your use of such Services, you agree to abide by the following Terms with respect to your use thereof:

1. You will not sell, license, lease, or commercially distribute any of the Services to any third party.

2. The Services may be used only for lawful, proper, and appropriate purposes.  You will not use the Services for any purpose that infringes, misappropriates, or violates any copyright, patent, service mark, trademark, trade secret, or other proprietary or other right of any party.  You will not use the services to violate any law, rule, or regulation. You will not engage in abusive, deceptive, defamatory, fraudulent, harassing, libelous or threatening behavior, including, without limitation, not uploading, posting, transmitting or otherwise making available on or via the Services any content (including any message or series of messages) that is abusive, deceptive, defamatory, fraudulent, harassing, libelous, obstructive, threatening, unlawful, invasive of privacy or publicity rights, that under the circumstances is obscene or indecent, that constitutes hate speech, that is otherwise offensive or objectionable, or that encourages conduct that would constitute a criminal offense, or that could give rise to civil liability.  Improper and inappropriate uses include, but are not limited to:

1. posting multiple messages similar in content to Usenet or other newsgroups, listservs, forums, e-mail mailing lists or other similar groups or lists;

2. calling, messaging, storing, posting or transmitting harassing, threatening or abusive materials, e-mail or information;

3. posting or transmitting any information or software that contains a virus worm, cancelbot or other harmful component;

4. without permission from the owner of a system or network, doing any of the following: (a) accessing the system or network, (b) monitoring data or traffic, (c) probing, scanning, and/or testing firewalls, (d) testing the vulnerability of a system or network or (e) breaching the security or authentication routines of a system or network;

5. conducting or forwarding surveys, contests, pyramid schemes, charity requests or chain letters;

6. relaying e-mail in an anonymous fashion or forging any TCP-IP packet header;

7. mailbombing, flooding, overloading, attacking or otherwise interfering with a system or network;

8. sending unsolicited calls, messaging, e-mailings (including, without limitation, commercial advertising and informational announcements) if such unsolicited activities could reasonably be expected to or do in fact provoke complaints;

9. operating a server in connection with the Services in an “open relay” configuration (a configuration whereby a mail server processes email messages where neither the sender nor the recipient is a local user);

10. falsifying user or other identifying information provided to GC or its service providers or to other users of the Services;

11. use of any Services in violation or any trademark, copyright, or any other intellectual property protection law or provision, or acceptable use policy of any third party provider;

12. use of any Services for the purposes of engaging in an activity in connection or conjunction with any pornographic and/or adult entertainment industry purpose, regardless of whether such activity is lawfully permitted;

13. auto-dialing or predictive-dialing (sometimes referred to as “robo-dialing”);

14. continuous or extensive chat line or conference call participation,

15. use of free conference calling or similar services that GC and/or its service provider(s) in their sole discretion deem to participate in traffic stimulation practices or schemes that result in excessive charges;

16. use of an open telephone line as a monitoring, intercom or similar service;

17. repetitive and/or continuous messaging or calling to the same destination or number if such activity could reasonably be expected to or in fact does provoke complaints;

18. long duration calls (defined as calls to the same number in excess of four continuous or cumulative hours within a 24-hour period) and/or calls placed to specific numbers / destinations for the purpose of generating charges or fees for or with a third party;

19. use of call Services which do not consist of uninterrupted live human voice dialog by and between natural human beings;

20. restricting or inhibiting any other User or any other person from using and enjoying the Services and/or the Internet; 

21. engaging in any of the foregoing activities by using the services of another provider or third party and channeling such activities through an account provided by GC and/or its service provider(s) or otherwise involving the Services or any account of GC with its service provider(s) in any way with or without another provider or third party for the purpose of facilitating the foregoing activities; 

22. using the Services in any manner that could damage, disable, overburden, or impair any server or other equipment maintained by GC, or interfere with any other user’s use and enjoyment of any Services

23. attempting to gain unauthorized access to any Services, or accounts, computer systems or networks connected to any equipment provided by GC, including, without limitation, those of the other users of the Services, through hacking, password mining or any other means, or otherwise attempt to obtain any materials or information through GC has not intentionally made available through the Services;

24. harvesting or otherwise collecting information about other users of the Premises, including, without limitation, email addresses, without the authorization or consent of the other users;

25. using the Services in connection with contests, pyramid schemes, chain letters, junk email, spamming or any duplicative or unsolicited messages (commercial or otherwise);

26. in any way, restricting or inhibiting any other user from using and enjoying the Services; or

27. creating a false identity for the purpose of misleading others.

3. GC and its service provider(s) shall have the right, but not the obligation, to: (i) monitor traffic and content on their networks, in their sole discretion, including through the use of automatic content filters (including, without limitation, spam, virus, and adult language sniffers and filters); (ii) monitor bandwidth utilization and to limit excessive use of bandwidth (as determined by GC and/or its service provider(s)) as GC and/or its service provider(s) deem appropriate to efficiently manage their network; (iii) review public content associated with the Services, including chat rooms, bulletin boards and forums, in order to determine compliance with these terms and conditions and any other terms and conditions now or hereafter established by GC and/or its service provider(s); and (iv) remove (or demand the removal of) any content that GC and/or its service provider(s) determine to be unacceptable or to violate the terms of the these terms and conditions or any bandwidth utilization limitations established by GC or its service provider(s).  

4. Violation of these terms and conditions may result in civil or criminal liability, and GC and/or its service provider(s) in their sole discretion, in addition to any remedy that they may have at law or in equity, may immediately terminate permission for you to use the Services, or any portion of the Services, and may charge you any applicable rates and cancellation or termination fees.  In addition, GC and/or its service provider(s) may investigate incidents that are contrary to these terms and conditions and provide requested information to third parties who have provided notice to GC and/or its service provider(s) stating that they have been harmed by your failure to abide by these terms and conditions. GC and/or its service provider(s) may bring legal action to enjoin violations and/or collect damages caused by any violation of any part of these terms and conditions.

5. Any violations or attempted violations of these terms and conditions by you, your employees, representatives, guests, invitees and any and all other persons associated with you will constitute a violation of these terms and conditions by you and a material breach of your License Agreement and/or any other agreements between you and GC, including, without limitation, any applicable supplements to such agreement(s) (“Other Agreements”).

6. GC’s and/or any service provider’s failure to enforce these terms and conditions in every instance in which they might have a right to do so does not amount to a waiver of their rights to do so in the future.

7. You acknowledge that GC’s service provider(s) retain title at all times to the IP addresses assigned to you in connection with any Service. Upon IP address reassignment or expiration, cancellation or termination of GC’s agreement with such service provider(s), you will relinquish any IP addresses or address blocks assigned by the service provider(s) or its underlying carrier(s) and will perform all acts reasonably requested by such service provider(s) or its underlying carrier(s) to return to such service provider(s) or its underlying carrier(s) full use of such IP addresses and address blocks.

8. THE SERVICES ARE PROVIDED “AS IS” AND “AS AVAILABLE” AND WITHOUT WARRANTIES OF ANY KIND EITHER EXPRESS OR IMPLIED. TO THE FULLEST EXTENT PERMISSIBLE PURSUANT TO APPLICABLE LAW, EACH OF GC AND ITS SERVICE PROVIDER(S) DISCLAIMS ALL WARRANTIES, EXPRESS OR IMPLIED, INCLUDING, WITHOUT LIMITATION, IMPLIED WARRANTIES OF MERCHANTABILITY OR FITNESS FOR A PARTICULAR PURPOSE, OR ANY WARRANTY OF NON-INFRINGEMENT. WITHOUT LIMITING THE FOREGOING, GC AND ITS SERVICE PROVIDER(S) DO NOT WARRANT THAT ANY SERVICES WILL BE UNINTERRUPTED OR ERROR-FREE, THAT DEFECTS WILL BE CORRECTED, OR THAT ANY SERVICES (OR ANY SERVER THAT MAKES ANY SERVICES AVAILABLE) WILL BE FREE OF VIRUSES OR OTHER HARMFUL COMPONENTS. GC AND ITS SERVICE PROVIDER(S) DO NOT WARRANT OR MAKE ANY REPRESENTATIONS REGARDING THE USE OR RESULTS OF ANY SERVICES IN TERMS OF ITS CORRECTNESS, ACCURACY, RELIABILITY, UNGCTHORIZED ACCESS BY THIRD PARTIES OR OTHERWISE. YOU (AND NOT GC AND/OR ITS SERVICE PROVIDER(S)) ASSUMES THE ENTIRE COST OF ALL NECESSARY SERVICING, REPAIR OR CORRECTION. YOU ACKNOWLEDGE THAT ANY DATA OR INFORMATION DOWNLOADED OR OTHERWISE OBTAINED OR ACQUIRED THROUGH THE USE OF ANY SERVICES IS AT YOUR SOLE RISK AND DISCRETION AND GC AND ITS SERVICE PROVIDER(S) WILL NOT BE LIABLE OR RESPONSIBLE FOR ANY DAMAGE TO YOU OR YOUR PROPERTY. YOU HEREBY EXPRESSLY ASSUMES THE RISK OF YOUR USE OF ANY INFORMATION TRANSMITTED VIA ANY SERVICES. NO ADVICE OR INFORMATION, WHETHER ORAL OR WRITTEN, OBTAINED BY YOU FROM GC, ITS EMPLOYEES OR THROUGH OR FROM ANY SERVICE WILL CREATE ANY WARRANTY NOT EXPRESSLY STATED IN THIS AGREEMENT. APPLICABLE LAW MAY NOT ALLOW THE EXCLUSION OF IMPLIED WARRANTIES, SO THE FOREGOING EXCLUSION MAYNOT APPLY.  GC AND ITS SERVICE PROVIDER(S) WILL HAVE NO OBLIGATION TO DEFEND OR INDEMNIFY YOU FROM OR AGAINST ANY THIRD-PARTY CLAIMS ALLEGING THAT YOUR USE OF ANY SERVICES OR THE EXERCISE OF ANY RIGHTS GRANTED HEREIN INFRINGES, MISAPPROPRIATES OR VIOLATES ON ANY INTELLECTUAL PROPERTY OF ANY THIRD PARTY. IF A CLAIM IS MADE, OR IN GC AND/OR ITS SERVICE PROVIDER(S) REASONABLE OPINION IS LIKELY TO BE MADE, AGAINST GC, ITS SERVICE PROVIDER(S), YOU OR ANY THIRD PARTY ALLEGING THAT ANY APPLICABLE SERVICES OR ANY USE THEREOF INFRINGES, MISAPPROPRIATES, OR VIOLATES ANY INTELLECTUAL PROPERTY OF ANY THIRD PARTY, GC MAY, IN GC’S SOLE DISCRETION, TERMINATE THESE TERMS AND CONDITIONS AND ALL RIGHTS AND OBLIGATIONS PURSUANT TO THESE TERMS AND CONDITIONS, INCLUDING, WITHOUT LIMATION, THE RIGHT TO USE THE SERVICES.

9. IN NO EVENT WILL GC OR ITS SERVICE PROVIDER(S) BE LIABLE TO ANY USER OR THIRD PARTY FOR ANY DIRECT, INDIRECT, PUNITIVE, SPECIAL, CONSEQUENTIAL OR OTHER DAMAGES FOR ACTIONS TAKEN OR NOT TAKEN PURSUANT TO THESE TERMS AND CONDITIONS, INCLUDING, WITHOUT LIMITATION, ANY LOST PROFITS, BUSINESS INTERRUPTION, LOSS OF PROGRAMS OR DATA, OR OTHERWISE, EVEN IF GC AND/OR ITS SERVICE PROVIDER(S)  WERE ADVISED OF THE POSSIBILITY OF SUCH DAMAGES. THIS LIMITATION OF LIABILITY IN FAVOR OF GC AND ITS SERVICE PROVIDER(S) IS IN ADDITION TO ANY LIMITATIONS SET FORTH IN ANY WRITTEN AGREEMENT BETWEEN GC AND ANY APPLICABLE USER AND WILL APPLY WHETHER THE ACTION IN WHICH RECOVERY IS SOUGHT IS BASED IN CONTRACT OR TORT (INCLUDING, WITHOUT LIMITATION, NEGLIGENCE OR STRICT LIABILITY), OR ANY APPLICABLE LAWS.

10. Nothing in these terms and conditions will limit or be deemed a waiver of any rights or protections of GC pursuant to any written agreement between GC and any applicable user. These terms and conditions will be read in connection with any such written agreement and not in conflict with any such agreement. These terms and conditions, in connection with any such agreement, supersedes any other oral or written representations or agreements made by GC and/or its representatives regarding the Services.

11. Subject to any arbitration, forum or choice of law provisions of any written agreement between GC and any applicable user, (i) these terms and conditions will be governed by, construed under and enforced in accordance with the laws of the state of North Carolina without reference to its choice of law principles or the United Nations Convention on the International Sale of Goods; and (ii) in the event any party brings a civil action or initiates judicial proceedings of any kind related to these terms and conditions (except for actions to enter or collect on judgments), including any service provider(s) of GC, all users consent to the exclusive personal jurisdiction and venue of the federal and state courts located in Richland County, South Carolina.

12. If any provision of these terms and conditions is held to be invalid or unenforceable, the validity and enforceability of the remaining provisions of these terms and conditions will not be affected thereby.

13. In addition to any indemnity obligations set forth in the Other Agreements, you agree to indemnify and hold harmless GC and its service provider(s) and their subsidiaries, and affiliates, and each of their past, present, and future principals, members, assignees, managers, directors, officers, employees, agents, successors and assigns against any and all actions, allegations, claims, demands and suits and all damages, expenses and  liability (including, without limitation, investigation and court costs and attorneys’ fees) in connection with, arising from or arising out of your (which, as used herein, shall include you, your agents, employees, guests, invitees, licensees and visitors and any and all other persons associated with you) use of the Services.