This Agreement provides that all disputes between you and Axcel will be resolved by BINDING ARBITRATION. YOU AGREE TO GIVE UP YOUR RIGHT TO GO TO COURT to assert or defend your rights under this contract, except for matters that may be taken to small claims court. Your rights will be determined by a NEUTRAL ARBITRATOR and NOT a judge or jury, and your claims cannot be brought as a class action. Please review Section 12 (“Dispute Resolution and Arbitration”) for the details regarding your agreement to arbitrate any disputes with Axcel.
This Customer Agreement (this “Agreement”) is entered into by and between Axcel, Inc., with offices located at 182 Howard St. #319, San Francisco, CA 94105 (“Axcel,” “we,” or “us”) and you, the user of Axcel’s Service (as defined below) clicking-to-accept this Agreement or, if applicable, the employer or other entity on whose behalf you are clicking-to-accept this Agreement (“Customer” or “you”). Axcel and you may be singularly or collectively referred to in this Agreement as the “Party” or the “Parties”, respectively.
1. Service Description. “Service” means those modules and features of Axcel’s software-as-a-service platform for authoring, processing, and sharing data analyses as made available by Axcel from time to time through one or more web sites owned or controlled by or on behalf of Axcel, including associated documentation made available to you in written form or online.
2. Access to and Use of the Service.
2.1 Eligibility. You must be at least 13 years of age to use the Service. By agreeing to this Agreement, you represent and warrant to us that: (a) you are at least 13 years of age; (b) you have not previously been suspended or removed from the Service; and (c) your registration and your use of the Service is in compliance with all applicable laws and regulations. If you are using the Service on behalf of an entity, organization, or company, you represent and warrant that you have the authority to bind that organization to this Agreement and you agree to be bound by this Agreement on behalf of that organization.
2.2 Accounts and Registration. To access most features of the Service, you must register for an account. When you register for an account, you may be required to provide us with some information about yourself, such as your email address or other contact information. You agree that the information you provide to us is accurate and that you will keep it accurate and up-to-date at all times. When you register, you will be asked to provide a password. You are solely responsible for maintaining the confidentiality of your account and password, and you accept responsibility for all activities that occur under your account. If you have reason to believe that your account is no longer secure, then you must immediately notify us at firstname.lastname@example.org.
2.3 Right to Access and Use. Subject to your full and ongoing compliance with the terms and conditions of this Agreement, including without limitation the payment of all applicable fees, Axcel grants you a non-exclusive, non-transferable, non-sublicensable right, during the term of this Agreement, to access and use the Service as expressly identified and described on Axcel’s website, solely for your internal business purposes.
2.4 Customer Responsibilities. You are responsible for all activities that occur under your user accounts. You shall: (i) obtain and maintain all equipment and any ancillary services needed to connect to, access or otherwise use the Service and ensure that such equipment meets the minimum system guidelines set forth in the applicable documentation; and (ii) have sole responsibility for the accuracy, quality, integrity, reliability, and appropriateness of all information, content, data, and materials imported or input by you into the Service or otherwise provided to Axcel hereunder (“Customer Data”).
2.5 Service Guidelines. You shall use the Service solely as contemplated by this Agreement and shall not: (i) submit or transmit material containing software viruses or other harmful or deleterious computer code, files, scripts, agents, or programs to or through the Service; (ii) transmit unlawful, immoral, libelous, tortious, infringing, defamatory, threatening, vulgar or obscene material, or material harmful to minors; (iii) collect data regarding other users of the Service or other third parties without their consent; (iv) interfere with or disrupt the integrity or performance of the Service or the content, data, or information contained therein; (v) attempt to gain or permit unauthorized access or access to a third party (including customers or vendors) to the Service, computer systems or networks related to the Service; (iv) disassemble, reverse engineer, or decompile any of the Technology (defined below), or attempt to do so; (v) “frame”, “mirror”, “skin,” “white-label” or otherwise embed or incorporate any of the Service or any content, data, or information contained therein (other than Customer Data) in any of your or a third party’s systems or services; or (vi) access the Service to build a competitive product or service, reproduce features of the Service, or resell the Service.
3. Fees and Billing.
3.1 Fees. Access to the Service, or to certain features of the Service, may require you to pay fees. Fees may be based on your usage of computational resources, user accounts, or other metrics as set forth on Axcel’s website from time to time. Before you pay any fees, you will have an opportunity to review and accept the fees that you will be charged. All fees are in U.S. dollars and are non-refundable. If Axcel changes the fees for the Service, including by adding additional fees or charges, Axcel will provide you advance notice of those changes. If you do not accept the changes, Axcel may discontinue providing the Service to you. Axcel will charge the payment method you specify at the time of purchase. You authorize Axcel to charge all sums as described in this Agreement, for the Service you select, to that payment method. If you pay any fees with a credit card, Axcel may seek pre-authorization of your credit card account prior to your purchase to verify that the credit card is valid and has the necessary funds or credit available to cover your purchase. The Service may include functionality for activating, updating or canceling recurring payments for periodic charges. If you activate or update recurring payments through the Service, you authorize Axcel to periodically charge, on a going-forward basis and until cancellation of either the recurring payments or your account, all accrued sums on or before the payment due date for the accrued sums. If you use the Service to update or cancel any existing authorized one-time or recurring payment, it may take several business days for the update or cancellation to take effect.
3.2 Taxes. All payments required by this Agreement exclude all sales, value-added, use, or other taxes and obligations, all of which you will be responsible for and will pay in full, except for taxes based on Axcel’s net income. If Axcel has the legal obligation to pay or collect taxes for which you are responsible pursuant to this Section 3.2, Axcel may invoice the appropriate amount to you and you shall pay such amount unless you provides Axcel with a valid tax exemption certificate authorized by the appropriate taxing authority.
4. Proprietary Rights.
4.1 Reservation of Rights. You acknowledge that in providing the Service, Axcel utilizes (i) the Axcel name, the Axcel logo, the Axcel’s websites and related domain names, the product names associated with the Service and other trademarks; (ii) certain software, documents, video content, and other works of authorship; (iii) analytical, predictive, and optimization models, frameworks, rules, algorithms, and similar systems, data mining and other algorithms, and (iv) other technology, software, hardware, products, processes, algorithms, know-how and other trade secrets, techniques, designs, inventions and other tangible or intangible technical material or information (collectively “Technology”). As between you and Axcel, Axcel reserves all rights, title and interest, including all intellectual property rights in and to, the Technology and the Service, any and all modifications, customizations or improvements to any of the foregoing, and any Service usage data collected or obtained by Axcel (“Derivatives”). Other than as expressly set forth in this Agreement, no license or other rights in the Technology or Derivatives are granted to you.
4.2 Data. Axcel acknowledges that, as between Axcel and you, you are the sole and exclusive owner of the Customer Data, and you hereby grant Axcel, a worldwide, nonexclusive right and license to use any Customer Data imported, obtained through your system APIs or integrated with the Service in connection with the provision of the Service to you, and to use the know-how and analytical results resulting from aggregated, de-identified usage data generated by Axcel in connection with the enhancement, improvement, and provision of the Service and derivatives thereof (including Axcel’s Technology and Derivatives), provided that the foregoing is not a license to provide or disclose any Customer Data to any third party in raw or disaggregated form, or to identify you as the source of any such Customer Data or analytical results.
5. Digital Millennium Copyright Act
5.1 DMCA Notification. We comply with the provisions of the Digital Millennium Copyright Act applicable to Internet service providers (17 U.S.C. §512, as amended). If you have an intellectual property rights-related complaint about material posted on the Service, you may contact our Designated Agent at the following address:
ATTN: Legal Department (Copyright Notification)
182 Howard St. #319
San Francisco, CA 94105
Any notice alleging that materials hosted by or distributed through the Service infringe intellectual property rights must comply with elements of notification as described in 17 U.S.C. §512.
5.2 Repeat Infringers. Axcel will promptly terminate the accounts of users that are determined by Axcel to be repeat infringers.
6.1 Definition of Confidential Information. As used herein, “Confidential Information” means all information of a Party (“Disclosing Party”), which if disclosed to the other Party (“Receiving Party”): (i) in tangible form, is designated in writing as being confidential at the time of disclosure, and (ii) if disclosed orally or visually, is identified as confidential at the time of disclosure, and reduced to writing and provided to the Receiving Party within thirty (30) days of disclosure. Notwithstanding the foregoing, (a) the Confidential Information of Axcel shall include, without limitation, the terms and conditions of this Agreement, the Technology, the Derivatives, and the Service; (b) your Confidential Information shall include, without limitation, the Customer Data; and (c) Confidential Information shall not include any information that: (x) is or becomes generally known to the public without the Receiving Party’s breach of any obligation owed to the Disclosing Party; (y) was independently developed by the Receiving Party without the Receiving Party’s breach of any obligation owed to the Disclosing Party; or (z) is received from a third party who obtained such Confidential Information without any third party’s breach of any obligation owed to the Disclosing Party.
6.2 Confidentiality. The Receiving Party shall not (i) use any Confidential Information of the Disclosing Party for any purpose other than to exercise its rights or to perform its obligations under this Agreement, or (ii) disclose, publish, or disseminate Confidential Information of the Disclosing Party to anyone other than the Receiving Party’s personnel (including employees, contractors and consultants) who have a need to know the Confidential Information for the purposes set forth in this Agreement and who are bound by a written agreement that prohibits unauthorized disclosure or use of Confidential Information that is at least as protective of the Confidential Information as the Receiving Party’s obligations hereunder. Notwithstanding the foregoing, you acknowledge that the Service is not, at this time, designed to protect uploaded Customer Data in accordance with the Health Insurance Portability and Accountability Act of 1996 (“HIPAA”), the Gramm-Leach-Bliley Act (“GLBA”), or similar data protection laws and regulations, and you agree that you will not upload any Customer Data or other information or content that is governed by such laws to the Service and that Axcel shall have no liability to you or any third party with respect to storage, use, or disclosure of such Customer Data or other information or content in violation of such laws. Notwithstanding the foregoing, the Receiving Party shall have the right to share the existence and nature of this Agreement with potential investors or acquirers, or with such Party’s attorneys, accountants, bankers, or other professional advisors in connection with a financing, merger, acquisition, corporate reorganization, consolidation, or sale of all or substantially all of its assets, or as required by law.
6.3 Feedback. Axcel shall have the unrestricted right to use or act upon any suggestions, ideas, enhancement requests, feedback, recommendations or other information provided by you (“Feedback”). You are not required provide Feedback. Any Feedback you choose to provide is provided on a non-confidential basis, notwithstanding any indication to the contrary in any accompanying communication.
6.4 Protection. Each Party agrees to protect the confidentiality of the Confidential Information of the other Party in the same manner that it protects the confidentiality of its own proprietary and confidential information of like kind, but in no event shall either Party exercise less than reasonable care in protecting such Confidential Information.
6.5 Compelled Disclosure. The Receiving Party may disclose Confidential Information of the Disclosing Party to the extent required by law, provided that the Receiving Party shall make reasonable efforts to provide the Disclosing Party with prior written notice of such compelled disclosure and reasonable assistance (at Disclosing Party’s cost) if the Disclosing Party wishes to obtain protective treatment of the Confidential Information.
7. Representations and Warranties.
7.1 By Axcel. Axcel represents and warrants to you that it has all necessary rights, power, and authority to enter into this Agreement and provide the Service to you in accordance with the terms of this Agreement without any conflict or breach of any contract or obligation to any third party.
7.2 By You. You represent and warrant to Axcel that: (i) you have the necessary rights, power, and authority to enter into this Agreement without any conflict or breach of any contract or obligation to any third party, and to use and to permit the use of, the Customer Data, and other materials and information used, stored or processed in the course of using or permitting the use thereof in connection with the Service, (ii) you shall not transfer any personal data, personal information, or personally identifiable information to Axcel without the consent of the individual(s) to whom such information relates and (iii) you are in compliance with, and shall not violate any applicable law or policy, including without limitation privacy and data protection laws and regulations and your internal privacy policies, in connection with the collection, use or processing of personal data, personal information, or personally identifiable information, the Customer Data, and any other materials used in connection with the Service. In the event of a breach or reasonably anticipated breach of the foregoing warranties, in addition to any other remedies available at law or in equity, Axcel will have the right to immediately, in Axcel’s sole discretion, suspend your access to any related Service if deemed reasonably necessary by Axcel to prevent any liability accruing to it.
7.3 Disclaimer. THE FOREGOING REPRESENTATIONS AND WARRANTIES SHALL BE THE PARTIES’ SOLE REPRESENTATIONS AND WARRANTIES ARISING OUT OF OR IN CONNECTION WITH THIS AGREEMENT. EXCEPT AS EXPRESSLY STATED IN SECTION 7.1, THE SERVICES ARE PROVIDED “AS IS”. TO THE MAXIMUM EXTENT PERMITTED BY APPLICABLE LAW, AXCEL HEREBY DISCLAIMS ALL OTHER WARRANTIES, WHETHER EXPRESS, IMPLIED, STATUTORY, OR OTHERWISE, INCLUDING WITHOUT LIMITATION ANY WARRANTIES OF MERCHANTABILITY, NONINFRINGEMENT, ACCURACY, RESULTS, QUALITY, PERFORMANCE, AND FITNESS FOR A PARTICULAR PURPOSE, OR THAT THE SERVICES SHALL BE ERROR-FREE OR UNINTERRUPTED.
8. Limitations of Liability.
8.1 Exclusions. EXCEPT WITH RESPECT TO ANY MATERIAL BREACH OF A PARTY’S OBLIGATIONS OF CONFIDENTIALITY, IN NO EVENT SHALL EITHER PARTY HAVE ANY LIABILITY TO THE OTHER PARTY HEREUNDER FOR ANY LOST PROFITS, LOSS OF DATA, LOSS OF USE, COSTS OF PROCUREMENT OF SUBSTITUTE GOODS OR SERVICES, OR FOR ANY INDIRECT, SPECIAL, INCIDENTAL, PUNITIVE, OR CONSEQUENTIAL DAMAGES HOWEVER CAUSED AND, WHETHER IN CONTRACT, TORT OR UNDER ANY OTHER THEORY OF LIABILITY, WHETHER OR NOT THE PARTY HAS BEEN ADVISED OF THE POSSIBILITY OF SUCH DAMAGES.
8.2 Maximum Liability. EXCEPT FOR EACH PARTY’S INDEMNITY OBLIGATIONS SET FORTH IN SECTION 9 OR CUSTOMER’S BREACH OF SECTIONS 2.3, 2.5, OR 4, IN NO EVENT SHALL EITHER PARTY’S AGGREGATE LIABILITY ARISING OUT OF OR RELATED TO THIS AGREEMENT, WHETHER IN CONTRACT, TORT OR UNDER ANY OTHER THEORY OF LIABILITY, EXCEED THE AMOUNTS ACTUALLY PAID OR PAYABLE BY CUSTOMER TO AXCEL FOR THE SERVICES GIVING RISE TO THE APPLICABLE LIABILITY DURING THE ONE (1) YEAR PERIOD IMMEDIATELY PRECEDING THE DATE THE CAUSE OF ACTION AROSE.
8.3 Basis of the Bargain; Failure of Essential Purpose. You acknowledge that Axcel has set its prices and entered into this Agreement in reliance upon the limitations of liability and the disclaimers of warranties and damages set forth herein, and that the same form an essential basis of the bargain between the Parties. The Parties agree that the limitations and exclusions of liability and disclaimers specified in this Agreement will survive and apply even if found to have failed of their essential purpose.
9.1 By Axcel.
(a) Axcel shall, at its own expense, defend or at its option settle any third party claim (“Claim”) brought against you to the extent it alleges that your use of the Service in accordance with this Agreement infringes any third party’s U.S. copyrights or trade secret rights; provided that you provide Axcel with (i) prompt written notice of such Claim; (ii) sole control over the defense and settlement of such Claim; and (iii) all available information and assistance reasonably requested by Axcel, at Axcel’s expense, to settle and/or defend any such Claim.
(b) In the event any such Claim is brought or threatened, Axcel may, at its sole option and expense: (i) procure for you the right to continue to use the Service; (ii) modify or amend all or a portion of the Service, or replace all or a portion of the Service with other service having substantially the same or better capabilities; or (iii) if Axcel determines that the foregoing are not feasible on commercially reasonable terms, terminate this Agreement in whole or in part, and refund to you a prorated portion of any Subscription Fees paid in advance for any Services not provided as a result of such termination.
(c) Axcel shall have no obligation to you under Section 9.1 to the extent a Claim arises from (i) your breach of this Agreement; (ii) the Customer Data; (iii) the combination of the Service with any of your products, services, data, hardware, or business process; or (iv) implementation of any of your specifications or requirements.
(d) The foregoing provisions of section 9.1 state the entire liability of AXCEL, and your sole remedy, with respect to any actual or alleged claim of infringement or misappropriation of intellectual property rights.
9.2 By You. You shall, at your own expense, indemnify and hold harmless Axcel against all losses, costs and expenses arising out of all claims against Axcel to the extent caused by Customer Data, or alleging any fact which, if true, would constitute a breach of any warranties set forth in Section 7.2; provided that Axcel provides you: (i) prompt written notice of such claim; (ii) sole control over the defense and settlement of such claim; and (iii) proper and full information and assistance, at Axcel’s expense, to settle and/or defend any such claim.
10. Term and Termination.
10.1 Term. The initial term of this Agreement shall commence on the date you first accept this Agreement or use the Service and shall remain in force until terminated in accordance with this Agreement (the “Term”).
10.2 Termination. Axcel may, at its sole discretion, terminate this Agreement and your account on the Service, or suspend or terminate your access to the Service, at any time for any reason or no reason, with or without notice, including if you violate any provision of this Agreement. You may terminate your account and this Agreement at any time by contacting customer service at [email@example.com].
10.3 Effect of Termination. Upon the effective date of expiration or termination of this Agreement for any reason: (a) Axcel may immediately cease providing the Service hereunder; (b) any and all payment obligations of you under this Agreement will become due immediately; (c) within thirty (30) days after such expiration or termination, each Party shall return the tangible embodiments of the other Party’s Confidential Information in its possession and shall not retain any copies of such Confidential Information except as required to comply with any applicable legal or accounting record keeping requirement.
10.4 Survival. The following provisions (and such other provisions that by their express terms survive expiration or termination of this Agreement) will survive any expiration or termination of the Agreement: Sections 2.4, 2.5, 2.6, 2.4, 2.5, 3.11, 3.12, 4, 6, 7, 8, 9, 10.3, 10.4, 11 and 12.
10.5 Modification of the Service. Axcel reserves the right to modify or discontinue the Service at any time (including by limiting or discontinuing certain features of the Service), temporarily or permanently, without notice to you. We will have no liability whatsoever on account of any change to the Service or any suspension or termination of your access to or use of the Service.
11. Miscellaneous Provisions.
11.1 Force Majeure. Except for the obligation to pay money, neither Party will be liable for any failure or delay in its performance under this Agreement due to any cause beyond its reasonable control, including acts of war, acts of God, labor shortages or disputes, governmental acts, or failure or degradation of the Internet or telecommunications services. The delayed Party shall give the other Party prompt notice of such cause, and shall use its reasonable commercial efforts to promptly correct such failure or delay in performance.
11.2 Marketing. The Parties anticipate that Axcel will have an opportunity to refer to you as a customer in Axcel’s marketing materials and on its website, and the Parties shall discuss in good faith the appropriate timing thereof.
11.3 Government Regulations. Each Party shall comply with all United States and foreign export control laws or regulations applicable to its performance under this Agreement.
11.4 Governing Law; Venue. This Agreement shall be governed by and construed in accordance with the laws of the State of California, without regard to conflict of laws principles. Except as provided in Section 12, any dispute arising out of this Agreement will be subject to the exclusive jurisdiction of the state courts located in San Francisco, California and the federal courts of the United States in the Northern District of California, and each Party consents to the personal jurisdiction thereof and waives any right it may otherwise have to challenge the convenience or appropriateness of such forums.
11.5 Severability; Waiver. If any provision of this Agreement is held by a court of competent jurisdiction to be unenforceable, such provision shall be modified so as best to accomplish the original intent of the Parties to the fullest extent permitted by law, and the remaining provisions of this Agreement shall remain in effect. The waiver of any breach or default of this Agreement will not constitute a waiver of any subsequent breach or default, and will not act to amend or negate the rights of the waiving Party.
11.6 Construction. The Parties acknowledge and agree that they have had the opportunity to discuss this Agreement with and obtain advice from their legal counsel, have had sufficient time to, and have carefully read and fully understand all the provisions of this Agreement, and are knowingly and voluntarily entering into this Agreement. Therefore, the Parties waive the application of any rule of construction providing that ambiguities in an agreement will be construed against the Party drafting such agreement.
11.7 Assignment. Neither Party shall have the right to assign this Agreement, in whole or in part, or any of its rights or obligations under this Agreement, by operation of law or otherwise, without the prior written consent of the other Party, except that each Party may assign this Agreement as part of a corporate reorganization, upon a change of control, consolidation, divestiture, merger, or sale of all or substantially all of its assets related to this Agreement. Any attempted assignment or delegation in violation of the foregoing will be void and of no effect. Subject to the foregoing, this Agreement will bind and inure to the benefit of each Party’s successors and permitted assigns.
11.8 Independent Contractors; Subcontractors.
(a) Axcel and you are independent contractors. This Agreement will not establish any relationship of partnership, joint venture, employment, franchise or agency between Axcel and you. Neither Axcel nor you will have the power to bind the other or incur obligations on the other’s behalf without the other’s prior written consent, except as otherwise expressly provided herein.
(b) Axcel shall have the right to use such subcontractors and third parties as it deems necessary to carry out its duties under this Agreement.
11.9 Entire Agreement. The terms and conditions of any documents referenced herein are incorporated into the terms and conditions of this Agreement, and together with these terms constitute the complete and exclusive agreement between the Parties with respect to the subject matter hereof, and supersede and replace any and all prior or contemporaneous discussions, negotiations, understandings and agreements, written and oral, regarding such subject matter.
11.11 Notice to California Residents. If you are a California resident, under California Civil Code Section 1789.3, you may contact the Complaint Assistance Unit of the Division of Consumer Services of the California Department of Consumer Affairs in writing at 1625 N. Market Blvd., Suite S-202, Sacramento, California 95834, or by telephone at (800) 952-5210 in order to resolve a complaint regarding the Service or to receive further information regarding use of the Service.
12. Dispute Resolution and Arbitration
12.1 Generally. In the interest of resolving disputes between you and Axcel in the most expedient and cost effective manner, you and Axcel agree that every dispute arising in connection with this Agreement will be resolved by binding arbitration. Arbitration is less formal than a lawsuit in court. Arbitration uses a neutral arbitrator instead of a judge or jury, may allow for more limited discovery than in court, and can be subject to very limited review by courts. Arbitrators can award the same damages and relief that a court can award. This agreement to arbitrate disputes includes all claims arising out of or relating to any aspect of this Agreement, whether based in contract, tort, statute, fraud, misrepresentation, or any other legal theory, and regardless of whether a claim arises during or after the termination of this Agreement. YOU UNDERSTAND AND AGREE THAT, BY ENTERING INTO THIS AGREEMENT, YOU AND AXCEL ARE EACH WAIVING THE RIGHT TO A TRIAL BY JURY OR TO PARTICIPATE IN A CLASS ACTION.
12.2 Exceptions. Despite the provisions of Section 12.1, nothing in this Agreement will be deemed to waive, preclude, or otherwise limit the right of either party to: (a) bring an individual action in small claims court; (b) pursue an enforcement action through the applicable federal, state, or local agency if that action is available; (c) seek injunctive relief in a court of law; or (d) to file suit in a court of law to address an intellectual property infringement claim.
12.3 Arbitrator. Any arbitration between you and Axcel will be settled under the Federal Arbitration Act, and governed by the Commercial Dispute Resolution Procedures and the Supplementary Procedures for Consumer Related Disputes (collectively, “AAA Rules”) of the American Arbitration Association (“AAA”), as modified by this Agreement, and will be administered by the AAA. The AAA Rules and filing forms are available online at www.adr.org, by calling the AAA at 1-800-778-7879, or by contacting Axcel.
12.4 Notice; Process. A party who intends to seek arbitration must first send a written notice of the dispute to the other party by certified U.S. Mail or by Federal Express (signature required) or, only if such other party has not provided a current physical address, then by electronic mail (“Notice”). Axcel’s address for Notice is: Axcel, Inc., 182 Howard St. #319, San Francisco, CA 94105. The Notice must: (a) describe the nature and basis of the claim or dispute; and (b) set forth the specific relief sought (“Demand”). The parties will make good faith efforts to resolve the claim directly, but if the parties do not reach an agreement to do so within 30 days after the Notice is received, you or Axcel may commence an arbitration proceeding. During the arbitration, the amount of any settlement offer made by you or Axcel must not be disclosed to the arbitrator until after the arbitrator makes a final decision and award, if any. If the dispute is finally resolved through arbitration in your favor, Axcel will pay you the highest of the following: (i) the amount awarded by the arbitrator, if any, subject to the limitations of liability contained herein; (ii) the last written settlement amount offered by Axcel in settlement of the dispute prior to the arbitrator’s award; or (iii) $1,000.
12.5 Fees. If you commence arbitration in accordance with this Agreement, Axcel will reimburse you for your payment of the filing fee, unless your claim is for more than $10,000, in which case the payment of any fees will be decided by the AAA Rules. Any arbitration hearing will take place at a location to be agreed upon in San Francisco, California, but if the claim is for $10,000 or less, you may choose whether the arbitration will be conducted: (a) solely on the basis of documents submitted to the arbitrator; (b) through a non-appearance based telephone hearing; or (c) by an in-person hearing as established by the AAA Rules in the county (or parish) of your billing address. If the arbitrator finds that either the substance of your claim or the relief sought in the Demand is frivolous or brought for an improper purpose (as measured by the standards set forth in Federal Rule of Civil Procedure 11(b)), then the payment of all fees will be governed by the AAA Rules. In that case, you agree to reimburse Axcel for all monies previously disbursed by it that are otherwise your obligation to pay under the AAA Rules. Regardless of the manner in which the arbitration is conducted, the arbitrator must issue a reasoned written decision sufficient to explain the essential findings and conclusions on which the decision and award, if any, are based. The arbitrator may make rulings and resolve disputes as to the payment and reimbursement of fees or expenses at any time during the proceeding and upon request from either party made within 14 days of the arbitrator’s ruling on the merits.
12.6 No Class Actions. YOU AND AXCEL AGREE THAT EACH MAY BRING CLAIMS AGAINST THE OTHER ONLY IN YOUR OR ITS INDIVIDUAL CAPACITY AND NOT AS A PLAINTIFF OR CLASS MEMBER IN ANY PURPORTED CLASS OR REPRESENTATIVE PROCEEDING. Further, unless both you and Axcel agree otherwise, the arbitrator may not consolidate more than one person’s claims, and may not otherwise preside over any form of a representative or class proceeding.
12.7 Modifications to this Arbitration Provision. If Axcel makes any future change to this arbitration provision, other than a change to Axcel’s address for Notice, you may reject the change by sending us written notice within 30 days of the change to Axcel’s address for Notice, in which case your account with Axcel will be immediately terminated and this arbitration provision, as in effect immediately prior to the changes you rejected will survive.
12.8 Enforceability. If Section 12.6 is found to be unenforceable or if the entirety of this Section 12 is found to be unenforceable, then the entirety of this Section 12 will be null and void and, in that case, the parties agree that the exclusive jurisdiction and venue described in Section 11.4 will govern any action arising out of or related to this Agreement.