These Terms of Service (“Terms”) are a binding legal agreement between you (i.e., the User and/or Record Center, as applicable) and Annex.com that govern your right to use the websites, applications, and other offerings from Annex.com (collectively, “Annex.com”). When used in these Terms, “Annex.com” “we,” “us,” or “our” refers to Annex.com, LLC, a California limited liability company.
Annex.com offers an online venue that enables operators of record storage centers and persons and entities that desire to utilize record storage services customers (collectively, “Members”) to publish, offer, search for, and book record center storage services. Members who publish and offer record center storage services are “Record Centers” and Members who search for, book, or use record center storage services are “Users.” Record Centers offer records storage and other services (collectively, “Record Center Services,” and each Record Center Service offering, a “Listing”). You must register an account to access and use many features of Annex.com and must keep your account information accurate. As the provider of Annex.com, we do not own, control, offer or manage any Listings or Record Center Services. Annex.com is not a party to the contracts entered into directly between Record Centers and Users.
We maintain other terms and policies that supplement these Terms like our Privacy Policy, which describes our collection and use of personal data https://oneilsoftware.com/annex-privacy-policy/.
The following terms set forth in Sections 1 through 4 apply to Users of Annex.com:
1. Our Service.
Our service is to provide secure applications to enable Users to search for and engage record center storage and other related services, which such services and related offerings shall be updated from time to time as they become available. Annex.com also provides payment facilitation for the transaction performed.
2. Searching for services and Subscription to Annex.com.
2.1 Searching. You can search for Record Center Services by using criteria like type of storage, location, services offered, etc.
2.2 Subscription. When you subscribe for Record Center Services based on a Listing, you are agreeing to pay all charges for your use of such Record Center Services including storage, pick-up, delivery, cataloging, applicable fees like Annex.com’s Service Fee and taxes, and any other items identified in the Listing , including without limitation the fees, costs and other terms set forth in the Record Center’s services sheet set forth in the Listing (collectively, “Total Service Price”). You are also agreeing that Annex.com may charge the Payment Method (as defined in the Payment Terms) used to subscribe for the applicable Record Center Services. When you receive a subscription confirmation, a contract for Record Center Services (a “Service Agreement”) is formed directly between you and the Record Center. In addition to these Terms, you will be subject to, and responsible for complying with, all terms of the Service Agreement, including without limitation, any rules, standards, policies, or requirements identified in the Listing or during the subscription that apply to the Service Agreement, including the terms and conditions set forth in the services sheet applicable to the Record Center. It is your responsibility to read and understand these rules, standards, policies, and requirements prior to subscribing for Record Center Services.
2.3 Term of Service Agreement. Unless terminated earlier as provided in these Terms, each Service Agreement will remain in effect for a period of one (1) year. After the first year, Users may terminate Record Center Services at any time upon notice to the applicable Record Center. Record Centers are permitted to terminate Service Agreements at the end of each year as provided in Section 5.9. Upon the termination of a Service Agreement by a Record Center at any time or for any reason, Annex.com shall coordinate with the applicable Record Center to ensure that all of User’s records shall be physically delivered to such User or transferred to another Record Center utilizing Annex.com and O’Neil Stratus hosted software technology, at User’s election. In the event Annex.com cannot obtain a suitable custodian for User’s records, Annex.com shall coordinate with the applicable Record Center to ensure that all of User’s records shall be physically delivered to such User.
3. Cancellations and Modifications.
3.1 Service Modifications. Users and Record Centers are responsible for any modifications to the Record Center Services they agree to make via the Annex.com platform or directly between the Record Center and such User (“Service Modification”), and agree to pay any additional amounts, fees, or taxes associated with any Service Modification. In the event you cancel or terminate any Record Center Services other than for cause (i.e., a violation of these Terms by the Record Center that remains uncured for at least thirty (30) calendar days following your written notice of breach to the Record Center), you shall be responsible for the cost and expense applicable to the retrieval and/or transfer of all materials held by the terminated Record Center. In addition, if a User terminates any Service Agreement other than as permitted by these Terms during the first year of the Service Agreement, the User remains liable for the payment of the remainder of the Record Center Services for then current remainder of Service Agreement term in the first year (the “Early Termination Fee”). The Early Termination Fee shall be determined by multiplying the Total Service Price for the month invoiced to User immediately prior to termination by the number of months remaining in the initial first year of the Service Agreement.
3.2 Price Modifications. Annex.com and Record Centers may modify and change their respective fees that are a part of the Total Service Price on an annual basis. Users shall be notified of any change to the applicable fees of Annex.com or a Record Center (the “Price Modification”) within [•] days prior to the expiration of the then current term of the applicable Service Agreement. If a User does not terminate the applicable Service Agreement prior to its renewal, continued use of the Record Center Services shall constitute User’s agreement to the Price Modification for Record Center Services thereafter during the renewal period. The Total Service Price during such renewal period shall be calculated using the Price Modification.
4. Your Responsibilities and Assumption of Risk.
4.1 Your Responsibilities. You are responsible and liable for your own acts and omissions and are also responsible for the acts and omissions of anyone you permit to act on your behalf in connection with the Record Center Services subscribed for.
4.2 Your Assumption of Risk. You acknowledge that the information and materials that you permit a Record Center to handle, store and manage on your behalf are valuable and may be subject to loss, damage or destruction by the Record Center, and you further agree that, to the maximum extent permitted by applicable law, you assume the entire risk arising out of your access to and use of Annex.com, and any Content (as defined in Section 8), use of any Record Center Service, or any other interaction you have with other Members whether in person or online. This means it is your responsibility to investigate a Record Center Service to determine whether it is suitable for you.
4.3 Non-Payment; Destruction of Records. You understand, acknowledge and agree that in the event that you subscribe for Record Center Services, you are responsible for the payment of the Total Service Price and Early Termination Fee, if applicable. In the event you are delinquent in the payment of any portion of the Total Service Price for a period of six months or more, the applicable Record Center shall have the right at its option, and you hereby authorize such Record Center, to (i) destroy all records and materials deposited by you with such Record Center as permitted by applicable law, or (ii) deliver and return to you all of your records and materials in its possession, subject to all applicable costs and fees associated therewith (such as, permanent retrieval fees and delivery charges. Additionally, the Record Center may terminate your Record Center Services. Notwithstanding the foregoing, prior to such destruction of records and materials or delivery for non-payment, User shall be provided with 30 days prior written notice to cure such delinquent payments in full.
4.4 Limitation on Damages. The terms and conditions set forth in the services sheet in the applicable Listing for the Record Center may contain additional terms limiting the Record Center’s liability and damages. Acceptance and use of a Record Center’s Record Center Services by a User shall be deemed to be and agreement and acceptance of all such terms limiting the Record Center’s liability and damages to such User in connection with the applicable Record Center Services.
The following terms set forth in Sections 5 through 7 apply to Record Centers:
5. Listing on Annex.com.
5.1 Record Center. As a Record Center utilizing the O’Neil Stratus hosted software for document storage management, Annex.com offers you the right to use Annex.com to share your Listing and Record Center Services with our Users. You are responsible for creating your own Listing and setting your own pricing and services for each Listing. Additionally, you shall comply at all times with the Annex.com listing requirements provided to you by Annex.com.
5.2 Contracting with Users. When you accept a subscription for Record Center Services by a User through Annex.com, you are entering into a contract directly with the User, and are responsible for delivering your Record Center Service under the terms and at the price specified in your Listing and as otherwise required by these Terms. You are also agreeing to pay applicable fees like the Annex.com Service Fee (and applicable taxes) for the Record Center Services applicable to each subscription. Annex.com Payments will deduct amounts you owe from your payout unless we and you agree to a different method in writing. Any terms, policies or conditions that you require for Users to utilize your Record Center Services must: (i) be consistent with these Terms and the information provided in your Listing, and (ii) be prominently disclosed in your Listing description and your special terms provided in your Listing.
5.3 Independence of Record Centers; Good Business Practices. Your relationship with Annex.com is that of an independent entity and not an employee, agent, joint venturer, or partner of Annex.com, except that Annex.com acts as a payment collection agent as described in the Payments Terms. Annex.com does not direct or indirectly control your Record Center Service, and you agree that you have complete discretion whether and when to provide Record Center Services, and at what price and on what terms to offer them to Users, subject only to the minimum obligations and service level requirements set forth in these Terms. As an independent Record Center, you shall at all times operate your business utilizing customary business practices and in a manner that at all times reflects positively on Annex.com and its affiliates, and you shall refrain from any conduct that negatively reflects upon Annex.com’s business and goodwill associated therewith.
5.4 Minimum Service Levels. As a Record Center offering Record Center Services on Annex.com, you covenant and agree with Annex.com and each of your Users that you and your Record Center Services will at all times comply with the following minimum service level obligations, which such minimum obligations form a part of the Service Agreement between you and each of your Users (collectively, the “SLA”):
5.4.1 Availability. Your hours of operation and availability for record retrieval services must comply with the Record Center Business Day as defined in the Stratus application and advertised in your Listing.
5.4.2 Response Time. Upon receipt of an initial Annex.com Web Order, you must contact the customer within one Record Center Business Day of the applicable order submission to arrange initial pickup and completion of service.
5.4.3 Order Fulfilment Time. All orders must be completed by the Required-By-Date as provided in the Stratus Enhanced Priority Service.
5.4.4 User Communication. You shall respond to all questions, concerns and/or complaints from any User in writing within one Record Center Business Day.
5.4.5 Standard SLAs and Modifications. To the extent not inconsistent with this SLA or these Terms, you shall strictly comply with your own standard service level agreements applicable to your Users, including any modifications required thereto by Annex.com prior to your Listing.
5.5 Software Requirements. You shall at all times utilize only Annex.com and O’Neil Stratus hosted software technology for the management of all documents, records and materials of your Annex.com Users. Notwithstanding the foregoing, you shall maintain your subscription to the O’Neil Stratus hosted software technology for the entire Term of these Terms and each Service Agreement.
5.6 Use of Platform. For so long as any User has subscribed for and is currently utilizing Record Center Services from you under these Terms, you shall, and shall cause all of your successors and assigns, to license and use Annex.com and O’Neil Stratus hosted software technology to manage such User’s documents, records and materials. You shall not be permitted to cancel or terminate your license to Annex.com and O’Neil Stratus hosted software technology until the date upon which all documents, records and materials of all Users that have subscribed for your Record Center Services shall have been physically retrieved by such User or transferred to another Record Center utilizing Annex.com and O’Neil Stratus hosted software technology.
5.7 Failure to Meet Minimum SLA or Software Requirements. If you fail to satisfy the minimum SLA requirements set forth in Section 5.4 above or the software requirements in Section 5.5 above, then Annex.com and/or the User shall have the right to immediately terminate the applicable Service Agreement between the Record Center and such User. In the event of a termination of a Service Agreement under this Section 5.7 by either Annex.com or User, the Record Center shall cooperate with Annex.com and the applicable User to cause the transfer of all User documents, records and materials under Record Center’s control to another Record Center on the Annex.com platform as directed by the User, and or return such documents and materials to the User, in each case at the sole cost and expense of the terminated Record Center.
5.8 Compliance Audit. Upon notice to Annex.com of Record Center’s non-compliance with these Terms, Record Center authorizes Annex.com to access all reports and information from the O’Neil Stratus database concerning the Record Center and its Users to determine compliance with these Terms and will cooperate with Annex.com in all reasonable requests of Annex.com to determine Record Center’s compliance with these Terms. Should Annex.com determine in its sole and absolute discretion that Record Center is not in compliance with any of these Terms, Record Center shall implement such reasonable recommendations as Annex.com shall provide.
5.9 Term of Service Agreement. Unless terminated earlier as provided in these Terms (including by Users pursuant to Section 2.3), each Service Agreement will remain in effect for a period of one (1) year and will automatically renew for additional periods of one (1) year each unless a Record Center notifies Annex.com and the User of its intention not to renew such Service Agreement within thirty (30) days of the expiration of the then current one (1) year term.
6. Managing Your Listing.
6.1 Creating and Managing Your Listing. Annex.com provides tools that allow you to set up and manage a Listing. Your Listing must include complete and accurate information about your Record Center Service, your prices, other charges, and any additional rules or requirements that apply to your Users or Listing and the provision of your Record Center Services. You are responsible for keeping your Listing information and content up-to-date and accurate at all times. You are solely responsible for any mistakes or inaccuracies in your Listing. You may only maintain one Listing per Record Center’s service facility and/or affiliated locations. All information in any Listing shall be strictly limited to relevant commercial and business information applicable to your Record Center Services, and shall not contain any non-commercial or non-business information or commentary and shall also be free of any political or social commentary, in all cases as determined by Annex.com in its sole and absolute discretion. Annex.com reserves the right to suspend or take-down any Listing that it determines, in its sole and absolute discretion, violates these Terms.
6.2 Know Your Legal Obligations. You are responsible for understanding and complying with any laws, rules, regulations, and your contracts with third parties that apply to your Listing or Record Center Services. You are responsible for handling and using personal data of Users and others in compliance with applicable privacy laws and these Terms. If you have questions about how local laws apply you should always seek legal advice.
6.3 Your Responsibilities. You are responsible and liable for your own acts and omissions and are also responsible for the acts and omissions of anyone you allow to participate in providing your Record Center Services. You are responsible for setting your price and establishing rules and requirements for your Listing and Record Center Services, subject to these Terms. You must describe any and all fees and charges in your Listing description and may not collect any additional fees or charges outside Annex.com. You are prohibited from encouraging Users to create third-party accounts or take any other actions outside Annex.com that relate to your Record Center Services advertised in your Listing.
6.4 Your Assumption of Risk. You acknowledge that providing Record Center Services carries inherent risks and agree that you assume the entire risk arising out of your access to and use of Annex.com, offering Record Center Services, or any interaction you have with other Members whether in person or online. You agree that you have had the opportunity to investigate Annex.com and any laws, rules, regulations, or obligations that may be applicable to your Listings or Record Center Services and that you are not relying upon any statement of law made by Annex.com.
6.5 Service Modification. Record Centers and Users are responsible for any Service Modification to the Record Center Services they agree to make via the Annex.com platform or directly between the Record Center and User, and agree to pay any additional amounts, fees or taxes associated with such Service Modification. Record Centers are responsible to update their O’Neil Stratus system with all Service Modifications immediately but no later than the second business day after the month when such Service Modifications occurred.
7. Taxes.
7.1 Record Center Taxes. You are responsible for determining and fulfilling your obligations under applicable laws to report, collect, remit, or include in your price any applicable VAT or other indirect taxes, sales taxes or other taxes (“Taxes”).
7.2 Collection and Remittance by Annex.com. In jurisdictions where Annex.com facilitates the collection and/or remittance of Taxes on behalf of Record Centers, you instruct and authorize Annex.com to collect Taxes on your behalf, and/or to remit such Taxes to the relevant Tax authority. Any Taxes that are collected and/or remitted by Annex.com are identified to Members on their transaction records, as applicable. Annex.com may seek additional amounts from Members (including by deducting such amounts from future payouts) in the event that the Taxes collected and/or remitted are insufficient to fully discharge that Members’ tax obligations, and you agree that your sole remedy for Taxes collected by Annex.com is a refund from the applicable Tax authority. You acknowledge and agree that we retain the right, with prior notice to affected Members, to cease the collection and remittance of Taxes in any jurisdiction for any reason.
7.3 Tax Information. In certain jurisdictions, Tax regulations may require that we collect and/or report Tax information about you, or withhold Taxes from payouts to you, or both. If you fail to provide us with documentation that we determine to be sufficient to support any such obligation to withhold Taxes from payouts to you, we may withhold payouts up to the amount as required by law, until sufficient documentation is provided. You agree that Annex.com may issue on your behalf invoices or similar documentation for VAT, GST, consumption or other Taxes for your Record Center Services to facilitate accurate tax reporting by you, our Users, and/or their organizations.
Sections 8 through 10 and 12 of the following Payment Terms apply to Users, and Section 11 and 12 of the following Payment Terms apply to Record Centers:
8. User Payment Services
Annex.com provides payment services to Members in connection with the Record Center Services and other current and future services provided via Annex.com. These payment services include the following (collectively, “Payment Services”):
All Members must use Payment Services in order to use Annex.com. In order to use the Payment Services, Members must have an Annex.com account in good standing in accordance with these Terms, and must keep the payment and other required information accurate and complete.
9.1 Payment Services. By using the Payments Services, you agree to comply with these Payments Terms. Annex.com may temporarily limit or suspend your access to or use of the Payment Services, or its features, to carry out maintenance measures that ensure the proper functioning of the Payment Services. Annex.com may improve, enhance and modify the Payment Services and introduce new Payment Services from time to time. Annex.com will provide notice to Members of any changes to the Payment Services, unless such changes do not materially increase the Members’ contractual obligations or decrease the Members’ rights under these Payments Terms.
9.2 Third Party Services. The Payment Services may contain links to third-party websites or resources (“Third-Party Services”). Such Third-Party Services are subject to different terms of service and privacy policies, and Members should review them. Annex.com is not responsible or liable for the use of such Third-Party Services. Links to any Third-Party Services are not an endorsement by Annex.com of those Third-Party Services.
9.3 Additional Terms. Your access to or use of certain Payment Services may be subject to, or require you to accept, additional terms and conditions. If there is a conflict between these Payments Terms and terms and conditions applicable to a specific Payment Service, the latter terms and conditions will take precedence with respect to your use of or access to that Payment Service, unless specified otherwise.
10. User Terms
10.1 Adding a Payment Method. When you add a Payment Method to your Annex.com account, you will be asked to provide billing information such as name, billing address, and financial instrument information either to Annex.com or its third-party payment processor(s). You authorize Annex.com and its payment service providers to collect and store your Payment Method information.
10.2 Payment Method Verification. When you add or use a new Payment Method, Annex.com may verify the Payment Method by (i) authorizing your Payment Method for one or two nominal amounts via a payment service provider, and asking you to confirm those amounts, or (ii) requiring you to upload a billing statement. We may, and retain the right to, initiate refunds of these amounts from your Payment Method.
10.3 Payment Authorization. You allow Annex.com to directly invoice or charge your Payment Method, as applicable, either directly or indirectly, for all fees due (including any applicable taxes) in connection with the Record Center Services you have subscribed for under your Annex.com account.
10.4 Automatic Update of Payment Method. If your Payment Method’s account information changes (e.g., account number, routing number, expiration date) as a result of re-issuance or otherwise, we may acquire that information from our financial services partners or your bank and automatically update your Payment Method on file.
10.5 Timing of Payment. Annex.com charges initial Service Fees plus any applicable sales tax and Annex.com platform fees on your Payment Method during the onboarding process. You agree to pay all such fees utilizing the Payment Method provided to Annex.com. Subsequently, Annex.com bills you monthly for the Total Service Price due for each month after the Record Center submits to us the monthly Total Service Price related to your Record Center Services for such month. You agree to pay all such fees within 14 days of the date of Annex.com invoice ("User Payment Term”). If you fail to fully pay the monthly Total Service Price due within User Payment Term, Annex.com will collect the Total Service Price due at a later point in accordance with Section 12.3.
10.6 Payment Service Providers. Payment Methods may involve the use of third-party payment service providers. These payment service providers may charge you additional fees when processing payments in connection with the Payment Services, and Annex.com is not responsible for any such fees and disclaims all liability in this regard. Your Payment Method may also be subject to additional terms of use. Please review them before using your Payment Method.
10.7 Your Payment Method, Your Responsibility. Annex.com is not responsible for any loss suffered by you as a result of incorrect Payment Method information provided by you.
11. Record Center Terms
11.1 Payment Collection. Record Center hereby grants a non-exclusive, worldwide, royalty-free, irrevocable, perpetual, sub-licensable and transferable license to Annex.com to access and use the information and data from your Annex.com and O’Neil Stratus hosted software to calculate the fees due for Record Center Services and to invoice your applicable Users therefor.
11.2 Valid Payout Method. In order to receive a Payout, Record Center must have a valid Payout Method linked to your Annex.com account. When Record Center adds a Payout Method to its Annex.com account, it will be asked to provide information such as name, government identification, tax ID, billing address, and financial instrument information either to Annex.com or its third-party payment processor(s). Depending on the Payout Method selected additional information may be required. Providing requested information is required for a Payout Method to be valid. The information Annex.com requires for a valid Payout Method may change, and Annex.com may request additional information at any time; failing to provide requested information may result in Annex.com temporarily placing a hold, suspending, or canceling any Payout until the information is provided and, if necessary, validated. Record Center authorizes Annex.com to collect and store its Payout Method information. Annex.com may also share such information with governmental authorities as required by applicable law.
11.3 Timing of Payout. Subject to and conditional upon successful receipt of the payments from User, Annex.com will initiate Payouts to Record Center’s selected Payout Method. The initial Payout for a new User that subscribes for Record Center Services shall be 90 days of the start of the Service Agreement, and thereafter shall be paid within 30 days after Annex.com receives payment from the applicable User for each monthly invoice.
11.4 Payout. Record Center’s Payout for a monthly Total Service Price less applicable fees like Annex.com Service Fees and applicable taxes.
11.5 Payout Restrictions. Annex.com may temporarily place a hold, suspend, or cancel any Payout for purposes of preventing unlawful activity or fraud, risk assessment, security, or completing an investigation; or if we are unable to verify Record Center’s identity, or to obtain or verify requested information. Furthermore, Annex.com may temporarily place a hold on, suspend, or delay initiating or processing any Payout due to Record Center under the Terms due to a Force Majeure Event.
11.6 Payment Service Providers. Payout Methods may involve the use of third-party payment service providers. These payment service providers may charge Record Center additional fees when processing Payouts in connection with the Payment Services (including deducting charges from the Payout amount), and Annex.com is not responsible for any such fees and disclaims all liability in this regard. Record Center’s Payout Method may also be subject to additional terms of use. Please review them before using such Payout Method.
11.7 Your Payout Method, Your Responsibility. Annex.com is not responsible for any loss suffered by Record Center as a result of incorrect Payout Method information provided by Record Center.
12. General Payment Terms
12.1 Fees. Annex.com shall charge fees for use of the Payment Services to both the Record Center and Users, and any applicable fees will be disclosed to Record Centers via O’Neil Stratus application and to Users in the Terms or via Annex.com.
12.2 Payment Authorizations. You authorize Annex.com to collect from you amounts due pursuant to these Terms by either (i) charging the Payment Method associated with the relevant Record Center Services, any other Payment Method on file that you authorize in your Annex.com account (unless you have previously removed the authorization to charge such Payment Method(s)), or invoice you directly, or (ii) by withholding the amount from a Record Center’s future Payout. Specifically, you and Record Center each authorize Annex.com to collect, as applicable:
If a Payment Method associated with the relevant Record Center Services is determined to be expired, invalid or otherwise not able to be charged or collected for any reason (such as insufficient funds), User remains responsible for any uncollected amounts and Annex.com may charge the Payment Method related to your Record Center Services again or use any other Payment Method on file associated with your Annex.com account, if available, to collect such Additional Amounts. Any amount not collected for any reason will be subject to any remedies that may be available, including, but not limited to, referral to a collections agency, or pursuit of available causes of action or claims against you.
In addition to any amount due as outlined above, if there are delinquent amounts or chargebacks associated with a Payment Method, User may be charged fees that are incidental to Annex.com’s collection of these delinquent amounts and chargebacks. Such fees or charges may include collection fees, convenience fees or other third-party charges. Additionally, Annex.com shall be entitled to charge interest on any delinquent amounts owed by a User or Record Center at a rate equal to the lesser of the interest rate on past due invoices as listed on https://oneilsoftware.com/annex-fee-schedule/ or the maximum rate permitted by law.
12.3 Collections
12.3.1 If Annex.com is unable to collect any amounts a User or Record Center owe under these Terms, Annex.com may engage in collection efforts to recover such amounts.
12.3.2 Annex.com will deem any owed amounts overdue when: (a) for authorized charges or direct invoices, thirty (30) days have elapsed after Annex.com first attempts to charge your Payment Method or issued the invoice, as applicable; and (b) for withholdings from a Record Center’s future Payouts, sixty (60) days have elapsed after the adjustment is made to the Record Center’s Annex.com account associated with the Record Center Services.
12.3.3 All communications in relation to amounts owed will be made by electronic mail or by phone, as provided to Annex.com by you or Record Center, as applicable. Such communications may be made by Annex.com, or by anyone on their behalf, including but not limited to a third-party collection agent.
12.4 Payment Processing Errors
12.4.1 Annex.com will take the necessary steps to rectify any payment processing errors that we become aware of. These steps may include crediting or debiting (as appropriate) the original Payout Method or Payment Method used or selected by you or Record Center, as applicable, so that such party ends up receiving or paying the correct amount. This may be performed by Annex.com or a third party such as a financial institution. We may also take steps to recover funds sent in error (including but not limited to an event of duplicate payments due to a processing error), by reducing, setting off and/or debiting the amount of such funds from any future Payouts.
12.4.2 To the extent you or Record Center receive any funds in error, you and Record Center, as appliable, agree to immediately return such funds to Annex.com.
The following terms set forth in Sections 13 through 25 apply to all Users and Record Centers:
13. Content.
Parts of Annex.com enable you to provide feedback, text, photos, audio, video, information, and other content (collectively, “Content”). By providing Content, in whatever form and through whatever means, you grant Annex.com a non-exclusive, worldwide, royalty-free, irrevocable, perpetual, sub-licensable and transferable license to copy, modify, prepare derivative works of, distribute, publish and otherwise exploit, that Content, without limitation. If Content includes personal information, our privacy policy describes how we use that personal information. Where Annex.com pays for the creation of Content or facilitates its creation, Annex.com may own that Content, in which case supplemental terms or disclosures will say that. You are solely responsible for all Content that you provide and warrant that you either own it or are authorized to grant Annex.com the rights described in these Terms. You are responsible and liable if any of your Content violates or infringes the intellectual property or privacy rights of any third party.
14. Fees.
Annex.com charges fees (and applicable Taxes) to Record Centers and Users for the right to use Annex.com (the “Service Fees”). The Service Fees are non-refundable. Annex.com reserves the right to change the Service Fees at any time, and will provide Members notice of any fee changes before they become effective. The current schedule of Service Fees charged to Record Centers and Users may be accessed here https://oneilsoftware.com/annex-fee-schedule/.
15. Annex.com Rules.
15.1 Rules. You must follow these rules and must not help or induce others to break or circumvent these rules.
15.2 Reporting Violations. If you believe that a User, Listing or Content poses an imminent risk of harm to a person or property, you should immediately contact local authorities before contacting Annex.com. In addition, if you believe that a User, Listing, Content or Record Center Services has violated these Terms, you should report your concerns to Annex.com. If you reported an issue to local authorities, Annex.com may request a copy of that report. Except as required by law, you agree that we are not obligated to take action in response to any report.
15.3 Copyright Notifications. If you believe that Content on Annex.com infringes copyrights, please notify Annex.com customer service.
16. Termination, Suspension and other Measures.
16.1 Term. The agreement between you and Annex.com reflected by these Terms is effective when you access Annex.com (for example to create an account) and remains in effect until either you or we terminate the agreement in accordance with these Terms. Unless terminated earlier as provided in these Terms, these Terms will remain in effect for a period of one (1) year, and will automatically renew for additional periods of one (1) year each unless a party notifies Annex.com of its intention not to renew such Terms within thirty (30) days of the expiration of the then current one (1) year term.
16.2 Termination. Annex.com may terminate this agreement and your account for any reason by giving you 30 days’ notice via email or using any other contact information you have provided for your account. Annex.com may also terminate this agreement immediately and without notice and stop providing access to Annex.com if you breach these Terms, you violate applicable laws, or we reasonably believe termination is necessary to protect Annex.com, its Users, or third parties.
16.3 User Violations. If (i) you breach these Terms, (ii) you violate applicable laws, regulations, or third-party rights, or (iii) Annex.com believes it is reasonably necessary to protect Annex.com, its Users, or third parties, Annex.com may, with or without prior notice:
16.4 Legal Mandates. Annex.com may take any action it determines is reasonably necessary to comply with applicable law, or the order or request of a court, law enforcement, or other administrative agency or governmental body, including the measures described above in Section 16.3.
17. Modification.
Annex.com may modify these Terms at any time. When we make material changes to these Terms, we will post the revised Terms on Annex.com and update the “Last Updated” date at the top of these Terms. We will also provide you with notice of any material changes by email at least fourteen (14) days before the date they become effective. If you disagree with the revised Terms, you may terminate this agreement immediately as provided in these Terms. If you do not terminate your agreement before the date the revised Terms become effective, your continued access to or use of Annex.com will constitute acceptance of the revised Terms.
18. Annex.com’s Role.
We offer you the right to use a platform that enables Members to publish, offer, search for, and subscribe for Record Center Services. While we work hard to ensure our Members have great experiences using Annex.com, we do not and cannot control the conduct of Users and Record Centers. You acknowledge that Annex.com has the right, but does not have any obligation, to monitor the use of Annex.com and verify information provided by our Members. Members agree to cooperate with and assist Annex.com in good faith, and to provide Annex.com with such information and take such actions as may be reasonably requested by Annex.com with respect to any investigation undertaken by Annex.com regarding the use or abuse of Annex.com. Annex.com is not acting as an agent for any Member except for where Annex.com Payments acts as a collection agent as provided in the Payments Terms.
19. User Accounts.
You must register an account to access and use many features of Annex.com. Registration is only permitted for legal entities, partnerships and natural persons who are 18 years or older. You represent and warrant that you are not a person or entity barred from using Annex.com under the laws of the United States, your place of residence, or any other applicable jurisdiction. You must provide accurate, current, and complete information during registration and keep your account information up-to-date. You may not register more than one account or transfer your account to someone else. You are responsible for maintaining the confidentiality and security of your account credentials and may not disclose your credentials to any third party. You are responsible and liable for activities conducted through your account and must immediately notify Annex.com if you suspect that your credentials have been lost, stolen, or your account is otherwise compromised. If and as permitted by applicable law, we may, but have no obligation to (i) ask you to provide identification or other information, (ii) undertake checks designed to help verify your identity or background, (iii) screen you against third-party databases or other sources and request reports from service providers, and (iv) obtain reports from public records of criminal convictions.
20. Disclaimer of Warranties.
We provide Annex.com and all Content “as is” without warranty of any kind and we disclaim all warranties, whether express or implied. For example: (i) we do not endorse or warrant the existence, conduct, performance, safety, quality, legality or suitability of any User, Record Center, Record Center Service, Listing or third party; (ii) and we do not warrant the performance or non-interruption of Annex.com. The disclaimers in these Terms apply to the maximum extent permitted by law. If you have statutory rights or warranties we cannot disclaim, the duration of any such statutorily required rights or warranties, will be limited to the maximum extent permitted by law.
21. Limitations on Liability.
Neither Annex.com (including its affiliates and personnel) nor any other party involved in creating, producing, or delivering Annex.com or any Content will be liable for any incidental, special, exemplary or consequential damages, including lost profits, loss of data or loss of goodwill, service interruption, computer damage or system failure or the cost of substitute products or services, or for any damages for personal or bodily injury or emotional distress arising out of or in connection with (i) these Terms, (ii) the use of or inability to use Annex.com or any Content, (iii) any communications, interactions or meetings you may have with someone you interact or meet with through, or as a result of, your use of Annex.com, or (iv) publishing or subscription of a Listing, including the provision or use of Record Center Services, whether based on warranty, contract, tort (including negligence), product liability or any other legal theory, and whether or not Annex.com has been informed of the possibility of such damage, even if a limited remedy set out in these Terms is found to have failed of its essential purpose.
Except for our obligation to transmit payments to Record Centers under these Terms, in no event will Annex.com’s aggregate liability for any claim or dispute arising out of or in connection with these Terms, your interaction with any Members, or your use of or inability to use Annex.com, any Content, or any Record Center Service, exceed: (A) to Users, the amount you paid to Annex.com in Service Fees as a User during the 12-month period prior to the event giving rise to the liability, (B) to Record Centers, the amount you paid to Annex.com in Service Fees as a Record Center in the 12-month period prior to the event giving rise to the liability, or (C) to anyone else, one hundred U.S. dollars (US$100).
These limitations of liability and damages are fundamental elements of the agreement between you and Annex.com. If applicable law does not allow the limitations of liability set out in these Terms, the above limitations may not apply to you.
22. Indemnification.
To the maximum extent permitted by applicable law, you agree to release, defend (at Annex.com’s option), indemnify, and hold Annex.com (including its affiliates, and their personnel) harmless from and against any claims, liabilities, damages, losses, and expenses, including, without limitation, reasonable legal and accounting fees, arising out of or in any way connected with: (i) your breach of these Terms (including any supplemental or additional terms that apply), (ii) your improper use of Annex.com, (iii) your interaction with any User or any Record Center Service, including without limitation any injuries, losses or damages (whether compensatory, direct, incidental, consequential or otherwise) of any kind arising in connection with or as a result of such interaction, participation or use, (iv) your failure, or our failure at your direction, to accurately report, collect or remit Taxes, or (v) your breach of any laws, regulations or third party rights such as intellectual property or privacy rights.
23. Governing Law and Venue.
These Terms will be interpreted in accordance with the laws of the State of California and the United States of America, without regard to conflict-of-law provisions. Judicial proceedings must be brought in state or federal court in Orange County, California, unless we both agree to some other location. You and we both consent to venue and personal jurisdiction in Orange County, California.
24. Dispute Resolution and Arbitration Agreement.
24.1 Agreement to Arbitrate. You and Annex.com mutually agree that any dispute, claim or controversy arising out of or relating to these Terms or the applicability, breach, termination, validity, enforcement or interpretation thereof, or any use of the Annex.com, Record Center Services, or any Content (collectively, “Disputes”) will be settled by binding individual arbitration (the “Arbitration Agreement”) administered by the American Arbitration Association (“AAA”). If there is a dispute about whether this Arbitration Agreement can be enforced or applies to our Dispute, you and Annex.com agree that the arbitrator will decide that issue. Any arbitration shall take place in Orange County, California.
24.2 Exceptions to Arbitration Agreement. You and Annex.com each agree that the following causes of action and/or claims for relief are exceptions to the Arbitration Agreement and will be brought in a judicial proceeding in a court of competent jurisdiction (as defined by Section 23): (i) any claim or cause of action alleging actual or threatened infringement, misappropriation or violation of a party’s copyrights, trademarks, trade secrets, patents, or other intellectual property rights; (ii) any claim or cause of action seeking emergency injunctive relief based on exigent circumstances (e.g., imminent danger or commission of a crime, hacking, cyber-attack); or (iii) a request for the remedy of public injunctive relief. You and Annex.com agree that the remedy of public injunctive relief will proceed after the arbitration of all arbitrable claims, remedies, or causes of action, and will be stayed pending the outcome of the arbitration pursuant to section 3 of the Federal Arbitration Act.
24.3 Arbitration Rules and Governing Law. This Arbitration Agreement evidences a transaction in interstate commerce and the Federal Arbitration Act governs all substantive and procedural interpretation and enforcement of this provision. The arbitration will be administered by AAA in accordance with the AAA arbitration rules determined to be applicable by the AAA (the “AAA Rules”) then in effect.
24.4 Attorney’s Fees and Costs. The prevailing party in any Dispute shall be awarded reasonable attorneys’ fees and costs.
24.5 Arbitrator’s Decision. The arbitrator’s decision will include the essential findings and conclusions upon which the arbitrator based the award. Judgment on the arbitration award may be entered in any court with proper jurisdiction. The arbitrator may award any relief allowed by law or the AAA Rules, but declaratory or injunctive relief may be awarded only on an individual basis and only to the extent necessary to provide relief warranted by the claimant’s individual claim.
24.6 Jury Trial Waiver. You and Annex.com acknowledge and agree that we are each waiving the right to a trial by jury as to all arbitrable Disputes.
24.7 No Class Actions or Representative Proceedings. You and Annex.com acknowledge and agree that, to the fullest extent permitted by law, we are each waiving the right to participate as a plaintiff or class member in any purported class action lawsuit, class-wide arbitration, private attorney general action, or any other representative or consolidated proceeding. Unless we agree in writing, the arbitrator may not consolidate more than one party’s claims and may not otherwise preside over any form of any class or representative proceeding. If there is a final judicial determination that applicable law precludes enforcement of the waiver contained in this paragraph as to any claim, cause of action or requested remedy, then that claim, cause of action or requested remedy, and only that claim, cause of action or requested remedy, will be severed from this agreement to arbitrate and will be brought in a court of competent jurisdiction. In the event that a claim, cause of action or requested remedy is severed pursuant to this paragraph, then you and we agree that the claims, causes of action or requested remedies that are not subject to arbitration will be stayed until all arbitrable claims, causes of action and requested remedies are resolved by the arbitrator.
24.8 Severability. In the event that any portion of this Arbitration Agreement is deemed illegal or unenforceable, such provision will be severed and the remainder of the Arbitration Agreement will be given full force and effect.
24.9 Survival. This Section 24 will survive any termination of these Terms and will continue to apply even if you stop using Annex.com or terminate your Annex.com account.
25. Miscellaneous.
25.1 Interpreting these Terms. Except as they may be supplemented by additional terms, conditions, policies, guidelines, standards, and disclosures, these Terms (including those items incorporated by reference) constitute the entire agreement between Annex.com and you pertaining to your access to or use of Annex.com and supersede any and all prior oral or written understandings or agreements between Annex.com and you. These Terms do not and are not intended to confer any rights or remedies upon anyone other than you and Annex.com. If any provision of these Terms is held to be invalid or unenforceable, such provision will be struck and will not affect the validity and enforceability of the remaining provisions. Where the word “will” is used in these Terms it connotes an obligation with the same meaning as “shall.”
25.2 No Waiver. Annex.com’s failure to enforce any right or provision in these Terms will not constitute a waiver of such right or provision unless acknowledged and agreed to by us in writing. Except as expressly set forth in these Terms, the exercise by either party of any of its remedies under these Terms will be without prejudice to its other remedies under these Terms or otherwise permitted under law.
25.3 Assignment. You may not assign, transfer or delegate this agreement or your rights and obligations hereunder without Annex.com's prior written consent. Annex.com may without restriction assign, transfer or delegate this agreement and any rights and obligations hereunder, at its sole discretion, with 30 days’ prior notice.
25.4 Notice. Unless specified otherwise, any notices or other communications to Members permitted or required under this agreement, will be provided electronically and given by Annex.com via email, Annex.com notification, messaging service (including SMS and other text messaging services), or any other contact method we enable and you provide.
25.5 Third-Party Services. Annex.com may contain links to third-party websites, applications, services or resources (“Third-Party Services”) that are subject to different terms and privacy practices. Annex.com is not responsible or liable for any aspect of such Third-Party Services and links to such Third-Party Services are not an endorsement.
25.6 Annex.com Content. Content made available through the Annex.com may be protected by copyright, trademark, and/or other laws of the United States and other countries. You acknowledge that all intellectual property rights for that Content are the exclusive property of Annex.com and/or its licensors and agree that you will not remove, alter or obscure any copyright, trademark, service mark or other proprietary rights notices. You may not use, copy, adapt, modify, prepare derivative works of, distribute, license, sell, transfer, publicly display, publicly perform, transmit, broadcast or otherwise exploit any Content accessed through the Annex.com except to the extent you are the legal owner of that Content or as expressly permitted in these Terms. Subject to your compliance with these Terms, Annex.com grants you a limited, non-exclusive, non-sublicensable, revocable, non-transferable license to (i) download and use the Application on your personal device(s); and (ii) access and view the Content made available on or through the Annex.com and accessible to you, solely for your personal and non-commercial use.
25.7 Force Majeure. Annex.com shall not be liable for any delay or failure to perform resulting from causes outside its reasonable control, including, but not limited to, acts of God, natural disasters, war, terrorism, riots, embargoes, acts of civil or military authorities, fire, floods, accidents, pandemics, epidemics or disease, strikes or shortages of transportation facilities, fuel, energy, labor or materials.