Last updated: February 2025
Welcome to tpNinja by TP Analytics. tpNinja offers a cloud-based platform to automate certain aspects of transfer pricing benchmarking and other uses, available online and via a mobile application ("Platform").
These Terms of Use (the "Terms") stipulate the terms, along with any other policies referenced and incorporated herein, of your access and use of the Platform provided by TP Analytics, Inc. ("TP Analytics"). These Terms are between TP Analytics and you, either individually, or on behalf of your employer or any other entity which you represent. If you are entering into these Terms on behalf of a third-party, company, or other legal entity, you represent that you have full authority to bind such entity and its affiliates to these Terms, in which case the term "you" and "your" will refer to such entity and its affiliates. IF YOU DO NOT AGREE TO COMPLY WITH AND BE BOUND BY THESE TERMS, OR DO NOT HAVE AUTHORITY TO BIND YOUR EMPLOYER OR ANY Other Entity, PLEASE DO NOT ACCEPT THESE TERMS OR USE THE PLATFORM.
Your use of the Platform is expressly conditioned on your compliance and consent to these Terms. You affirm your consent to these Terms by either (i) accessing the Platform or (ii) signing an Order Form.
You may not use or access the Platform if you are a direct competitor of TP Analytics unless explicitly agreed by TP Analytics in writing. Furthermore, you may not use or access the Platform for benchmarking or any other competitive purpose.
THESE TERMS CONTAIN AN AGREEMENT TO ARBITRATE AND OTHER IMPORTANT INFORMATION REGARDING YOUR LEGAL RIGHTS, REMEDIES, AND OBLIGATIONS. THE AGREEMENT TO ARBITRATE REQUIRES (WITH LIMITED EXCEPTION) THAT YOU SUBMIT CLAIMS YOU HAVE AGAINST TP ANALYTICS TO BINDING AND FINAL ARBITRATION, AND FURTHER (1) YOU WILL ONLY BE PERMITTED TO PURSUE CLAIMS AGAINST TP ANALYTICS ON AN INDIVIDUAL BASIS, NOT AS A PLAINTIFF OR CLASS MEMBER IN ANY CLASS OR REPRESENTATIVE ACTION OR PROCEEDING, (2) YOU WILL ONLY BE PERMITTED TO SEEK RELIEF (INCLUDING MONETARY, INJUNCTIVE, AND DECLARATORY RELIEF) ON AN INDIVIDUAL BASIS, AND (3) YOU MAY NOT BE ABLE TO HAVE ANY CLAIMS YOU HAVE AGAINST TP ANALYTICS RESOLVED BY A JURY OR IN A COURT OF LAW.IF YOU DO NOT AGREE TO THESE TERMS, PLEASE DO NOT ENTER, CONNECT TO, ACCESS, OR USE THE PLATFORM IN ANY MANNER.
1.1 Modification or Discontinuation. TP Analytics reserves the right to add, modify or discontinue any feature or functionality of the Platform at any time without notice.
1.2 Age Representation. You represent that you are of legal age in your jurisdiction to form a binding contract, but in any event at least thirteen (13) years old. Children under the age of thirteen (13) are not permitted to use the Platform. If you are between thirteen (13) and eighteen (18) years old, you must review these Terms with your parent or guardian, have him/her accept it on your behalf, as well as approve your use of the Platform.
2.1 Account. To access and use the Platform, you must create an account. When creating an account or when you are added into an account by an entity you are engaged with (such as your employer) and creating your user profile, you agree to (i) provide accurate and complete information, (ii) maintain the confidentiality of your account and password, (iii) agree to accept responsibility for any and all activities or actions that occur under the account, and (iv) immediately notify TP Analytics in writing upon becoming aware of any security breach or unauthorized access or use of your account. You are responsible for the activities of all users who access or use the Platform through your account and shall ensure that any such user will comply with the Terms herein. TP Analytics may assume that any communication received from your account has been made by you. You will be solely responsible and liable for any losses, damages, liability, and expenses incurred by us or a third party, due to any unauthorized usage of the account by either you or any other user or third party on your behalf. TP Analytics may suspend your account if TP Analytics reasonably suspects that you or anyone on your behalf is using the account in a manner that violates these Terms.
You understand and agree that we may require you to provide information that may be used to confirm your identity and help ensure the security of your account. In the event that you lose access to an account or otherwise request information about an account, TP Analytics reserves the right to request any verification deemed necessary before restoring access to or providing information about such account.
You are solely liable and responsible for understanding the settings, privileges and controls for the Platform and for controlling who becomes a user and what are the settings and privileges for such user, including without limitation, the right for a user to invite guests, the right to access, modify or share recordings, etc. You are responsible for the activities of all users, including any Order Form they may place. You acknowledge that any action taken by a user of an account, is deemed by us as an authorized action, and you shall have no claim in this regard.
2.2 Third Party Features. The Platform may contain functionality that links to and/or integrates with third party websites not owned or controlled by TP Analytics. The Platform may also rely on third-party cloud infrastructure providers such as AWS. You acknowledge that TP Analytics is not responsible for such third-party services (and that each respective third-party service shall be governed by its own applicable terms and conditions). If you shall have any problems resulting from use of any third-party services, or if you suffer data loss or other losses as a result of problems with any other service providers or any third-party services, TP Analytics will not be responsible unless the problem was the direct result of its actions.
TP Analytics Intellectual Property. All intellectual property rights in the Platform, inclusive of materials, such as software, application programming interface, design, text, editorial materials, informational text, photographs, illustrations, audio clips, video clips, artwork and other graphic materials, and names, logos, trademarks and services marks (excluding Content), and any part thereof and any and all derivatives, modifications, enhancements, changes and improvements thereof (the "TP Analytics Intellectual Property") lie exclusively with TP Analytics. No title to or ownership of any proprietary rights related to the TP Analytics Intellectual Property is transferred to you. All rights not explicitly granted to you are reserved by TP Analytics.
3.1 License. Subject to the Terms herein, TP Analytics shall provide you a limited, non-exclusive, revocable, non-sublicensable, non-transferable right to access and use the Platform during the Term (defined below). Any use of the Platform other than as permitted by these Terms is strictly prohibited and will automatically terminate your rights under these Terms. All rights and licenses not expressly granted by these Terms are reserved by TP Analytics.
3.2 Restrictions. Except as explicitly permitted in these Terms, you may not and shall not allow a third party to (i) attempt to infiltrate, hack, reverse engineer, decompile, or disassemble the TP Analytics Intellectual Property, or derive or attempt to create or derive, by reverse engineering or otherwise, the source code from any object code supplied hereunder; (ii) resell, lease, sublicense or distribute the TP Analytics Intellectual Property to any person; (iii) represent that it possess any proprietary interest in the TP Analytics Intellectual Property; (iv) use the name, trademarks, trade-names, and logos of TP Analytics; (v) sub-license its right to access and use the Platform or otherwise provide remote access to the Platform to any third party; (vi) permit any unauthorized person to access or use the Platform; and/or (vii) take any action that imposes or may impose (at TP Analytics's sole discretion) an unreasonable or disproportionately large load on the TP Analytics infrastructure or infrastructure which supports the Platform; (viii) abuse or harm others or yourself by misleading, defrauding, illegally impersonating or cloning, defaming, threatening, bullying, and/or harassing; and/or (ix) purchase multiple subscription plans concurrently as a means to circumvent the upgrade process and interfere with the proper working of the Platform and subscription plan offerings. Furthermore, you shall not use any robot, spider, scraper, deep link or other similar automated data gathering or extraction tools, program, algorithm or methodology to access, acquire, copy or monitor the Platform or any portion thereof.
3.3 Customer Reference. You acknowledge and accepts that TP Analytics has the right to use your name and/or logo on TP Analytics's website, marketing materials or otherwise by public announcements and identify you as a customer. You may revoke such right, at any time, by contacting info@tpanalytics.com
3.4 Feedback. As a user of the Platform, you may provide suggestions, comments, feature requests or other feedback to TP Analytics ("Feedback"). Such Feedback is deemed an integral part of TP Analytics, and as such, is the sole property of TP Analytics without restrictions or limitations of use of any kind. You (i) represent and warrant that such Feedback is accurate, complete, and does not infringe on any third party rights; (ii) irrevocably assign to TP Analytics any right, title and interest you may have in such Feedback; and (iii) explicitly and irrevocably waive any and all claims relating to any past, present or future moral rights, artists' rights, or any other similar rights, worldwide, in or to such Feedback.
Either party (a "Disclosing Party") may disclose to the other party (a "Receiving Party") certain confidential information regarding its technology and business ("Confidential Information"). TP Analytics's Confidential Information includes, without limitation, the pricing. Subject to the terms and conditions herein, the Receiving Party agrees to keep confidential and not disclose or use any Confidential Information except to support its use or provision of the Services. Confidential Information shall not include information that Receiving Party can show: (a) was already lawfully known to, or independently developed by, Receiving Party without access to or use of Confidential Information; (b) was received by Receiving Party from any third party without restrictions; (c) is publicly and generally available, free of confidentiality restrictions; or (d) is required to be disclosed by law, regulation or is requested in the context of a law enforcement investigation, provided that Receiving Party provides Disclosing Party with prompt notice of such requirement and cooperates in order to minimize such requirement. Receiving Party shall restrict disclosure of Confidential Information to those of its Affiliates, employees, agents, consultants and subcontractors who have a reasonable need to know such information and who are bound by written confidentiality obligations no less restrictive than those set out herein. The non-disclosure and non-use obligations set forth in this Section 4 shall survive the termination or expiration of these Terms for a period of three (3) years.
5.1 Privacy. While using the Platform, TP Analytics may process information we receive from you and in connection with your use of the Platform. For more information on TP Analytics's data collection, practices, and instructions on how to exercise your rights, please refer to TP Analytics's Privacy Policy which is incorporated herein by reference.
5.2 Anonymous Information. Notwithstanding any other provision of these Terms, we may collect, and use Anonymous Information (defined below) relating to your use of the Platform, and disclose it for the purpose of providing, improving and publicizing our products and for other business purposes. "Anonymous Information" means information which does not enable identification of an individual, such as aggregated information. TP Analytics owns all Anonymous Information collected or obtained by TP Analytics.
5.3 Data Processing Addendum (the "DPA"). By using the Platform, you also accept our Data Processing Addendum, which governs the Processing of Personal Data (as both terms are defined in the DPA) on your behalf where such Personal Data is subject to the General Data Protection Regulation 2016/679 (the "GDPR").
6.1 License to TP Analytics. You hereby grant TP Analytics a limited, non-exclusive license to use, copy, display and reproduce any materials, files, recordings, video, audio, voice, data, etc. imported, uploaded, linked, shared, posted, published, submitted, stored, or otherwise generated by you when using the Platform (the "Content") solely to the extent required for use of the Platform and related services. By uploading your Content to the Platform, you represent and warrant that you are the rightful owner of the Content or have the necessary licenses, rights, consents, and permissions to upload and use the Content in accordance with these Terms. You acknowledge and agree that TP Analytics will not be liable for any Content and any use thereof, including, without limitation, for any errors or omissions, or for any infringement of third-party rights, loss or damage of any kind incurred as a result of the use or display of any Content. The Content is and shall remain your property and shall be used at your sole and absolute responsibility. The Platform is not intended to be used as storage, backup or archiving services. It is your responsibility to back up the Content and your responsible for any lost or unrecoverable Content. TP Analytics does not screen Content and is not responsible for any use of the Content.
6.2 DMCA Copyright Policy. TP Analytics responds to alleged infringement notices that comply with the Digital Millennium Copyright Act of 1998 ("DMCA"). If you believe that content accessible on or through the Platform infringes copyright, you may submit a notification pursuant to the DMCA requirements to TP Analytics's Copyright Agent at the address detailed below, containing the following information:
Note that the information provided in a notice of copyright infringement may be forwarded to the allegedly infringing user. After removing the content from the Platform pursuant to a valid copyright infringement notice, TP Analytics will notify the user responsible for the allegedly infringing content that it has removed.
DMCA Counter Notification: If you believe you are the wrongful subject of a DMCA notification, you may file a counter-notification to TP Analytics's Copyright Agent containing the following information: (i) your full name and complete contact information (including address, telephone number, and email address); (ii) an identification of the content that has been removed or to which access has been disabled and the location at which the content appeared before it was removed or access disabled; (iii) a statement that you have a good faith belief that the content identified above was removed or disabled as a result of a mistake or misidentification of the content to be removed or disabled; (iv) a statement that you will consent to the jurisdiction of the Federal District Court for the judicial district in which your address is located (or if you reside outside the United States for any judicial district in which TP Analytics's services may be found) and that you will accept service from the person (or an agent of that person) who provided the complaint at issue; and (v) your electronic or physical signature. A notification of alleged copyright infringement or counter-notification must be addressed to TP Analytics's designated copyright agent ("TP Analytics's Copyright Agent") at the following address:
TP Analytics Inc.
Attn: Legal Department, Copyright Agent
Email: info@tpanalytics.com;
Subject: Copyright Infringement
Repeat Infringers: Please note that when appropriate, TP Analytics may terminate the accounts of users who are repeat infringers, and reserves the right, in its sole discretion, to disable or terminate the accounts of users or content for actual or apparent copyright infringement.
6.3 Warranties and Covenants. You hereby warrant, represent and covenant that: (i) the copying, uploading and use of the Content does not infringe upon any third party's rights, including intellectual property rights, publicity rights and privacy rights; (ii) it has fully complied with any third-party licenses, permits and authorizations required in connection with the Content; (iii) the Content does not contain any viruses, worms, Trojan horses or other harmful or destructive code or content; (iv) the Content is not obscene, libelous, offensive, vulgar, pornographic, profane, or otherwise inappropriate, tortious or unlawful as determined by TP Analytics at its reasonable discretion; and (v) the Content is not illegal or encourage illegal activity. While is not obligated to screen or monitor any Content, in real time or otherwise, TP Analytics reserves the right to review and delete or prevent the delivery of any Content that, in its judgment, violates these Terms or any applicable law or regulation, or is otherwise objectionable.
6.4 Content on Third Party Websites. You shall not, nor shall you allow, assist, authorize or encourage any third party to publish the output you create through your use of the Platform on any website or other form of media that is in any way unlawful, harmful, threatening, defamatory, obscene, harassing, or racially, ethnically or otherwise objectionable, or (i) promoting or containing sexually explicit materials, violent materials, libelous or defamatory materials; (ii) containing speech or images that are offensive, profane, hateful, threatening, harmful, defamatory, libelous, harassing or promoting discrimination; (iii) promoting or undertaking illegal gambling, sale of firearms, hacking or cracking or any illegal activity; (iv) containing graphic violence; or (v) infringing intellectual property rights of third parties or containing any spyware, adware or other unwanted threats. TP Analytics may suspend your account if it determines, in its sole discretion, that any website is unsuitable.
Our order form may be completed and placed in various ways, among which, an online form or in-product quotes with TP Analytics's then current price list or any other mutually agreed upon offline form delivered by you to TP Analytics, including via mail, email or any other electronic or physical delivery mechanism (the "Order Form"). Such Order Form will list, at the least, the services, number of licenses, term and associated fees.
7.1 Fees. In consideration for your subscription to use the Platform and purchase of Professional Services, you shall pay TP Analytics a subscription fee as set forth in the applicable Order Form (the "Fees") and you authorize TP Analytics to charge you using the selected payment method. All payments shall be due and payable in advance. Your subscription to the Platform will automatically renew for the same subscription period at the end of the then current subscription period. To cancel such automatic renewal, you must unsubscribe at least 30 days prior to the end of the applicable subscription period, or as otherwise stated in the online description of the Platform. TP Analytics may suspend or discontinue your access to the Platform and/or Professional Services in case of your failure to pay the Fees on the date due. TP Analytics may change the Fees from time to time; however, any Fee changes will apply from the date of such modification following notice to you.
7.2 Refunds. Refunds are permissible with respect to the Platform in accordance with our Refund Policy, which is incorporated herein by reference. Except as stated therein, all Fees under these Terms are non-refundable and non-cancellable. TP Analytics does not refund foreign currency conversion fees, bank and/or credit card fees that you may incur.
7.3 Tax. All amounts payable to TP Analytics are exclusive of all taxes, including but not limited to US sales, withholding, GST, VAT, levies or similar governmental charges, however designated, except for taxes based on the net income of TP Analytics. If you are in a jurisdiction which requires deductions or withholding under applicable law, you shall pay TP Analytics an amount such that the net amount after withholding of taxes shall equal the amount that would have been otherwise payable under these Terms.
7.4 Professional Services. From time to time, TP Analytics may offer the users certain professional services in connection with the Platform ("Professional Services"), subject to payment of additional fees and execution of the applicable Order Form. Professional Services are governed by these Professional Service Terms and additional terms and conditions as TP Analytics may make available to you. The Professional Services will be offered on an availability basis, depending on the skill set necessary to perform the applicable Professional Services.
7.5 Offers and Discounts. From time to time, TP Analytics may offer special discounted pricing options or promotional offers (the "Discounted Pricing Options"). Additional terms specific to each Discounted Pricing Option will be outlined in the corresponding offer ("Offer Terms"). Unless otherwise stated in the Offer Terms, Discounted Pricing Options are available only to new users who have not previously opened a TP Analytics account. TP Analytics reserves the right to determine your eligibility for any Discounted Pricing Option, and to modify or cancel a Discounted Pricing Option at any time.
Each party represents and warrants that (i) these Terms constitute a legal, valid and binding obligation, enforceable against it and in accordance with these Terms, and (ii) its execution and delivery of the Terms and its performance hereunder will not violate any applicable law, rule or regulation.
NOTWITHSTANDING ANYTHING IN THESE TERMS OR ELSEWHERE TO THE CONTRARY AND TO THE FULLEST EXTENT PERMITTED BY APPLICABLE LAW: TP ANALYTICS PROVIDES THE USAGE OF THE PLATFORM, THE PROFESSIONAL SERVICES, ANDANY OTHER SERVICES ON AN "AS IS" BASIS, WITHOUT WARRANTIES OF ANY KIND, WHETHER EXPRESS OR IMPLIED. TP ANALYTICS AND OUR AFFILIATES, SUBCONTRACTORS, AGENTS, AND VENDORS (INCLUDING THIRD PARTY SERVICE PROVIDERS) HEREBY DISCLAIM THE WARRANTY OF MERCHANTABILITY, NON- INFRINGEMENT, FITNESS FOR PARTICULAR PURPOSE OR ACCURACY. NOTWITHSTANDING ANYTHING TO THE CONTRARY HEREIN, TP ANALYTICS DOES NOT WARRANT THAT THE PLATFORM OR ANY SERVICES RELATED THERETO WILL BE DELIVERED OR PERFORMED ERROR-FREE OR WITHOUT INTERRUPTION OR THAT THE PLATFORM IS FREE FROM VIRUSES OR OTHER HARMFUL CODE. WE AND OUR VENDORS FURTHER DISCLAIM ANY AND ALL LIABILITY OR RESPONSIBILITY FOR ANY DELAYS, FAILURES, INTERCEPTION, ALTERATION, LOSS, OR OTHER DAMAGES THAT YOU AND/OR YOUR DATA (INCLUDING CONTENT) MAY SUFFER, THAT ARE BEYOND OUR CONTROL.
TP Analytics is not responsible for performance issues caused by low-performance of your computers, microphones or cameras and low-bandwidth internet connections. If TP Analytics identifies slow performance due to its system, TP Analytics shall use commercially reasonable efforts to restore the Platform to acceptable performance levels. Your sole remedy for any disruption or failure to provide support shall be termination of these Terms.
You shall defend, indemnify and hold harmless TP Analytics and its officers, directors, employees, consultants, affiliates, subsidiaries and agents from and against any and all claims, liabilities, damages, losses and expenses, including reasonable attorneys' fees, arising out of or in any way connected with (i) your violation of these Terms or any representation, warranty, or agreement referenced herein, or any applicable law or regulation; (ii) your violation of any third party right, including without limitation any intellectual property right, publicity rights, confidentiality, or privacy rights; or (iii) any claim asserted against TP Analytics in connection with the Content displayed through the Platform.
TP Analytics shall defend, indemnify, and hold you harmless from and against any and all claims, liabilities, damages, losses and expenses, including reasonable attorneys' fees, arising out of or in connection with third-party claims alleging infringement by the Platform of any patent or copyright or misappropriation of any trade secret. The foregoing defense and indemnification obligations do not apply if (i) the allegation does not state with specificity that the Platform is the basis of the claim against you; (ii) a claim against You arises from the use or combination of the Platform or any part thereof with software, hardware, data, or processes not provided by TP Analytics, if the Platform or use thereof would not infringe without such combination; (iii) a claim against you arises under an Order Form for which there is no charge; or (iv) a claim against you arises from your Content, third-party applications, services or software or your breach of these Terms or applicable Order Forms.
Indemnification Process. The obligations of either party to provide indemnification under these Terms will be contingent upon the indemnified party: (i) providing the indemnifying party with prompt written notice of any claim for which indemnification is sought (provided that the indemnified party's failure to notify the indemnifying party will not diminish the indemnifying party's obligations under this Section, except to the extent that the indemnifying party is materially prejudiced as a result of such failure); (ii) cooperating fully with the indemnifying party (at the indemnifying party's expense); and (iii) allowing the indemnifying party to control the defense and settlement of such claim, provided that no settlement may be entered into without the consent of the indemnified party if such settlement would require any action on the part of the indemnified party other than to cease using any allegedly infringing or illegal content or services. Subject to the foregoing, an indemnified party will at all times have the option to participate in any matter or litigation through counsel of its own selection at its own expense.
TO THE EXTENT PERMITTED BY LAW, IN NO EVENT WILL TP ANALYTICS BE LIABLE FOR LOST PROFITS, LOSS OF USE, LOSS OF CONTENT, COST OF PROCUREMENT OF SUBSTITUTE GOODS OR SERVICES, OR FOR SPECIAL, INCIDENTAL, INDIRECT, OR CONSEQUENTIAL DAMAGES, HOWEVER CAUSED, AND ON ANY THEORY OF LIABILITY, WHETHER FOR BREACH OF CONTRACT, TORT (INCLUDING NEGLIGENCE AND STRICT LIABILITY), OR OTHERWISE, WHETHER OR NOT TP ANALYTICS HAS BEEN ADVISED OF THE POSSIBILITY OF SUCH DAMAGES. TP ANALYTICS'S MAXIMUM AGGREGATE LIABILITY UNDER, ARISING OUT OF OR RELATING TO THESE TERMS OR THE SERVICE SHALL NOT EXCEED THE FEES PAID BY YOU FOR SUCH SERVICE DURING THE 12 MONHTS PRECEDING THE EVENT GIVING RISE TO THE CLAIM.
These Terms will remain in effect until your subscription to the Platform expires or terminates (the "Term"). You may stop using the Platform at any time and delete your account and TP Analytics may suspend or terminate your access to the Platform immediately if you do not comply with these Terms. Upon termination, your account will be terminated, and you will no longer be able to access your account. Sections 3, 4, 5, 6, 7, 10, 11, and 12 shall survive any expiration or termination of these Terms.
Neither us nor you will be liable by reason of any failure or delay in the performance of its obligations on account of events beyond the reasonable control of a party, which may include denial-of-service attacks, interruption or failure of the Internet or any utility service, failures in third-party hosting services, strikes, shortages, riots, fires, acts of God, war, terrorism, pandemic, and governmental action.
Please read this section carefully. It affects your rights by requiring you to arbitrate disputes with TP Analytics and limits the manner in which you can seek relief. It further provides that you waive your rights to try any claim in court before a judge or jury and to bring or participate in any class, collective, or other representative action. This section of the Terms shall be referred to as the "Arbitration Agreement".
You and TP Analytics agree that any dispute, claim or controversy arising out of or relating in any way to these Terms or your use of our services and/or any third parties embedded therein shall be determined by binding arbitration on an individual basis rather than in court, except that you may assert claims in small claims court if your claims qualify, so long as the matter remains in such court and advances only on an individual (non-class, non-representative) basis.
You agree that, by agreeing to these Terms, the U.S. Federal Arbitration Act governs the interpretation and enforcement of this provision, and that you and TP Analytics are each waiving the right to a trial by jury or to participate in a class action. This arbitration provision shall survive termination of these Terms and any other contractual relationship between you and TP Analytics.
BY AGREEING TO ARBITRATION WITH TP ANALYTICS, YOU ARE AGREEING IN ADVANCE THAT YOU WILL NOT PARTICIPATE IN OR SEEK TO RECOVER MONETARY OR OTHER RELIEF IN ANY CLASS, COLLECTIVE, AND/OR REPRESENTATIVE LAWSUIT. INSTEAD, BY AGREEING TO ARBITRATION, YOU MAY BRING CLAIMS AGAINST TP ANALYTICS ONLY IN AN INDIVIDUAL ARBITRATION PROCEEDING.
Pre-Arbitration Dispute Resolution: If you desire to assert a claim against TP Analytics, and you therefore elect to seek arbitration, you must first send to TP Analytics, by certified mail, a notice of your claim ("Notice"). The Notice to TP Analytics must be addressed to 3100 Clarendon Blvd, Suite 200, Arlington VA 22201 ("Notice Address"). The Notice must seek to resolve only your individual dispute and must be personally signed by you (and not your counsel). Within thirty (30) business days of receipt of a demand, the recipient may request an individualized video or telephone conference which both parties will personally attend (with counsel, if represented). You agree that you will not take any legal action, including filing a lawsuit or demanding arbitration, until after the period to request a conference expires or, if a conference is requested, 30 business days after the individualized conference. Compliance with this informal dispute resolution procedure section is mandatory and a condition precedent to initiating arbitration. This procedure is essential to providing each of us a meaningful opportunity to resolve disputes informally. Any applicable limitations periods and filing fee deadlines will be tolled while the parties engage in the process set forth above. A court of competent jurisdiction may enjoin the filing or prosecution of an arbitration if these requirements have not been met.
Arbitration Procedure: If the disagreement stated in the Notice is not resolved to your satisfaction within ten (10) business days after the conference described above (or within ten 10 business days after the time when such a conference may be requested if no conference has been requested), and you intend on taking legal action, you agree that you will file a demand for arbitration with the American Arbitration Association or file a claim in small claims court. The arbitration will be governed by the Commercial Arbitration Rules ("AAA Rules") of the American Arbitration Association ("AAA"), as modified by these Terms, and will be administered by the AAA. Unless TP Analytics and you agree otherwise, any arbitration hearings will take place in a reasonably convenient location for both parties with due consideration of their ability to travel and other pertinent circumstances. If the parties are unable to agree on a location, the determination will be made by AAA. If your claim is for $10,000 or less, the arbitration will be conducted solely on the basis of documents submitted to the arbitrator, through a telephonic hearing, or by an in-person hearing as established by the AAA Rules unless the Mass Arbitration provisions set forth below are triggered. If your claim exceeds $10,000, the right to a hearing will be determined by the AAA Rules. Regardless of the manner in which the arbitration is conducted, the arbitrator will issue a reasoned written decision sufficient to explain the essential findings and conclusions on which the award is based. This arbitration provision limits the ability of you and TP Analytics to litigate claims in court and you and TP Analytics each agree to waive your respective rights to a jury trial or a state or federal judge. There is no judge or jury in arbitration, and court review of an arbitration award is limited. However, an arbitrator can award on an individual basis the same damages and relief as a court (including injunctive and declaratory relief or statutory damages) and must follow these Terms as a court would. You agree that you will not file any lawsuit against TP Analytics in any state or federal court. You agree that if you do sue in state or federal court, and TP Analytics brings a successful motion to compel arbitration, you must pay all fees and costs incurred by TP Analytics in court, including reasonable attorney's fees. For any such filing of a demand for arbitration, you must effect proper service under the AAA Rules and notice to the Notice Address may not be sufficient. If, for any reason, the American Arbitration Association is unable to conduct the arbitration, you may file your case with any national arbitration company.
All aspects of the arbitration proceeding, and any ruling, decision, or award by the arbitrator, will be strictly confidential for the benefit of all parties.
Prohibition of Class and Representative Actions andNon-Individualized Relief: YOU AND TP ANALYTICS 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 TP Analytics agree otherwise, the arbitrator may not consolidate more than one person's claims with your claims and may not otherwise preside over any form of a representative or class proceeding unless the Mass Arbitration provisions set forth below are triggered. The arbitrator may award declaratory or injunctive relief only in favor of the individual party seeking relief and only to the extent necessary to provide relief warranted by that party's individual claim, EXCEPT THAT YOU MAY PURSUE A CLAIM FOR AND THE ARBITRATOR MAY AWARD PUBLIC INJUNCTIVE RELIEF UNDER APPLICABLE LAW TO THE EXTENT REQUIRED FOR THE ENFORCEABILITY OF THIS PROVISION.
If a court or the arbitrator decides that any term or provision in this Arbitration Agreement (other than the subsection above titled "Prohibition of Class and Representative Actions and Non- Individualized Relief" above) is invalid or unenforceable, the parties agree to replace such term or provision with a term or provision that is valid and enforceable and that comes closest to expressing the intention of the invalid or unenforceable term or provision, and this Arbitration Agreement will be enforceable as so modified. If a court or the arbitrator decides that any of the provisions of subsection above titled "Prohibition of Class and Representative Actions and Non- Individualized Relief" are invalid or unenforceable, then the entirety of this Arbitration Agreement will be null and void, unless such provisions are deemed to be invalid or unenforceable solely with respect to claims for public injunctive relief. The remainder of these Terms will continue to apply.
Mass Arbitration: If, at any time, 25 or more claimants (including you) submit demands or seek to file demands for arbitration raising similar claims against TP Analytics, and such circumstances meet the definition and criteria of Mass Filings ("Mass Filing") set forth in National Arbitration & Mediation's ("NAM") Mass Filing Supplemental Dispute Resolution Rules and Procedures ("NAM's Mass Filing Rules," available at https://www.namadr.com/resources/rules-fees- forms/),you and TP Analytics agree that AAA shall not serve as Arbitrator and that instead NAM shall administer any Mass Filing claims and the NAM Mass Filing Rules in effect at the time such claim is filed shall apply as modified below. You agree that throughout this process, the parties' counsel shall meet and confer to discuss modifications to these procedures based on the particular needs of the Mass Filing. You acknowledge and agree that by electing to participate in a Mass Filing, the adjudication of your dispute might be delayed.
Stage One: Counsel for the claimants and counsel for TP Analytics shall each select 25 claims per side (50 claims total) to be filed and to proceed in individual arbitrations as part of a staged process. Each of these individual arbitrations shall be assigned to a different, single arbitrator unless the parties agree otherwise in writing. Any remaining claims shall not be filed or be deemed filed in arbitration, nor shall any arbitration fees be assessed in connection with those claims unless and until they are selected to be filed in individual arbitration proceedings as part of a staged process. After this initial set of staged proceedings is completed, the parties shall promptly engage in a global mediation session of all remaining claims with a retired federal or state court judge and TP Analytics will pay the mediator's fee.
Stage Two: If the remaining claims are not resolved at this time, counsel for the claimants and counsel for TP Analytics shall each select 50 claims per side (100 claims total) to be filed and to proceed in individual arbitrations as part of a second staged process, subject to any procedural changes the parties agreed to in writing. Each of these individual arbitrations shall be assigned to a different, single arbitrator unless the parties agree otherwise in writing. Any remaining claims shall not be filed or be deemed filed in arbitration, nor shall any arbitration fees be assessed in connection with those claims unless and until they are selected to be filed in individual arbitration proceedings as part of a staged process. After this second set of staged proceedings is completed, the parties shall promptly engage in a global mediation session of all remaining claims with a retired federal or state court judge and TP Analytics will pay the mediator's fee.
Stage Three: If the remaining claims are not resolved at this time, counsel for the claimants and counsel for TP Analytics shall each select 100 claims per side (200 claims total) to be filed and to proceed in individual arbitrations as part of a third staged process, subject to any procedural changes the parties agreed to in writing. Any remaining claims shall not be filed or be deemed filed in arbitration, nor shall any arbitration fees be assessed in connection with those claims unless and until they are selected to be filed in individual arbitration proceedings as part of a staged process. Following this third set of staged proceedings, counsel for claimants may elect to have the parties participate in a global mediation session of all remaining claims with a retired federal or state court judge.
If your Claim is not resolved as part of the staged process identified above, either:
Option One: You and TP Analytics may separately or by agreement, opt out of arbitration and elect to have your claim heard in court consistent with these Terms. You may opt out of arbitration by sending TP Analytics your individual, personally signed notice of your intention to opt out by certified mail addressed to the Notice Address. Such an opt-out notice must be sent by you personally, and not by your agent, attorney, or anyone else purporting to act on your behalf. It must include a statement, personally signed by you, that you wish to opt out of arbitration within 30 days after the conclusion of Stage 3 or the elective mediation associated with Stage 3. We may opt your Claim out of arbitration by sending an individual, personally signed notice of our intention to opt out to your counsel within 14 days after the expiration of your 30-day opt out period. Counsel for the parties may agree to adjust these deadlines.
OR
Option Two: If neither you nor we elect to have your claim heard in court consistent with Option One, then you agree that your claim will be resolved as part of continuing, staged individual arbitration proceedings as set forth below. Assuming the number of remaining claims exceeds 200, then 200 claims shall be randomly selected (or selected through a process agreed to by counsel for the parties) to be filed and to proceed in individual arbitrations as part of a staged process. If the number of remaining claims is fewer than 200, then all of those claims will be filed and proceed in individual arbitrations. Any remaining claims will not be filed or be deemed filed in arbitration, nor will any arbitration fees be assessed in connection with those claims unless and until they are selected to be filed in individual arbitration proceedings as part of a staged process. After each set of 200 claims are adjudicated, settled, withdrawn, or otherwise resolved, this process shall repeat consistent with these parameters. Counsel for the parties are encouraged to meet and confer, participate in mediation, and engage with each other and with NAM (including through a Procedural Arbitrator, as such term is used in the NAM Rules) to explore ways to streamline the adjudication of claims, increase the number of claims to proceed at any given time, promote efficiencies, conserve resources, and resolve the remaining claims.
A court of competent jurisdiction shall have the authority to enforce these Mass Filing provisions and, if necessary, to enjoin the mass filing, prosecution, or administration of arbitrations and the assessment of arbitration fees. If these additional procedures apply to your claim, and a court of competent jurisdiction determines that they are not enforceable as to your claim, then your claim will proceed in a court of competent jurisdiction consistent with these Terms.
You and TP Analytics agree that each party values the integrity and efficiency of arbitration and wishes to employ the process for the fair resolution of genuine and sincere disputes between the parties. You and we acknowledge and agree to act in good faith to ensure the processes set forth herein are followed. The parties further agree that application of these Mass Filing procedures have been reasonably designed to result in an efficient and fair adjudication of such cases. If any part of this Mass Arbitration provision is deemed to be invalid, unenforceable or illegal, or otherwise conflicts with the NAM rules, then the balance of this Mass Arbitration provision shall remain in effect and shall be construed in accordance with its terms as if the invalid, unenforceable, illegal or conflicting provision were not contained herein unless the lack of such provision would lead this Mass Arbitration provision to fail of its essential purpose.
Entire Agreement. these Terms sets forth the entire understanding between the parties with respect to the subject matter herein and supersede all prior and contemporaneous written agreements and discussions concerning the subject matter hereof.
Term Modifications by TP Analytics. TP Analytics reserves the right, from time to time and in its discretion, to make changes to these Terms. The modified Terms will become effective within five (5) days of being posted to the TP Analytics website. By continuing to access or use the Platform, you agree to be bound by the revised Terms. If you do not agree to the modifications, your sole remedy, is to terminate use of the Platform.
Waiver. The failure of either party to enforce at any time a provision(s) of these Terms shall not be interpreted as a waiver of such provision(s) or of the right of such party to enforce each and every such provision(s).
Governing Law. These Terms shall be governed by and construed in accordance with the laws of the State of Virginia. Any and all disputes and controversies arising out of or in connection with these Terms shall be brought exclusively before the competent courts in Virginia, Virginia.
Severability. If any provision of these Terms is determined to be void or unenforceable by a court of competent jurisdiction, such clause shall be interpreted as necessary to give maximum force to the provisions thereof, and the validity and enforceability of the remainder of these Terms shall not be affected.
Notice. All notices given under these Terms shall be in writing and shall be deemed to have been duly given when delivered, if delivered by messenger during normal business hours of the recipient; when sent, if transmitted by email or facsimile transmission, or through the Platform itself, during normal business hours of the recipient; or on the third business day following posting, if posted by international air mail. Notwithstanding the foregoing, service of process shall be made in accordance with applicable local law.
Assignment. You may not transfer or assign your rights or obligations under these Terms to any third party. Any purported assignment contrary to this section shall be void.