PLEASE NOTE THAT YOUR USE OF AND ACCESS TO OUR SERVICES (DEFINED BELOW) ARE SUBJECT TO THE FOLLOWING TERMS; IF YOU DO NOT AGREE TO ALL OF THE FOLLOWING, YOU MAY NOT USE OR ACCESS THE SERVICES IN ANY MANNER. 

Terms of Use

Effective date: October 10th, 2018

Welcome to Portion.io. Please read on to learn the rules and restrictions that govern your use of our website(s), products, services and applications (the “Services”). If you have any questions, comments, or concerns regarding these terms or the Services, please contact us at hello@portion.io.

These Terms of Use (the Terms”) are a binding contract between you and Trancendus Technology, Inc. d/b/a Portion (Portion,” “we” and us”).  You must agree to and accept all of the Terms, or you dont have the right to use the Services. Your using the Services in any way means that you agree to all of these Terms, and these Terms will remain in effect while you use the Services. These Terms include the provisions in this document, as well as those in the Privacy Policy and Copyright Dispute Policy. There are two different types of users of the Services: Buyers” (those purchasing [art or collectibles (whether digital or physical) (Art”)] through the Services), and Sellers” (those supplying Art displayed on the Services). Additional terms and conditions apply to you depending on what type of user you are, as indicated throughout these Terms or otherwise through the Services.

Portion is an online marketplace. Portion is acting solely in the capacity of an intermediary that facilitates transactions between Buyers and Sellers. Portion is not and should not be construed as an artist, creator, manufacturer, gallery, retailer, supplier, distributor, reseller or sales agent.  Unless otherwise agreed to in writing, Portion does not manufacture, own, take title to, store, have possession of, inspect or sell any of the Art listed, marketed, offered or sold on or in connection with our Services (whether online or offline). We do not sell Art on behalf of any Seller. All contracts for sale and transactions that take place through the Services are directly between the Seller supplying the Art through the Services and the Buyer of said Art and we are not a party to any such contract. Your use of the Services in no way implies that you are employed by Portion, nor may it be construed as such. You hereby acknowledge and agree that you are not an employee, agent, partner, or joint venturer of Portion, and you do not have any authority of any kind to bind Portion in any respect whatsoever.

NOTICE: Please read these Terms carefully. They cover important information about Services provided to you and any charges, taxes, and fees we bill you. These Terms include information about future changes to these Terms, limitations of liability, a class action waiver, and resolution of disputes by arbitration instead of in court.

Will these Terms ever change?

We are constantly trying to improve our Services, so these Terms may need to change along with the Services. We reserve the right to change the Terms at any time, but if we do, we will bring it to your attention by placing a notice on the platform website, by sending you an email, and/or by some other means.

If you don’t agree with the new Terms, you are free to reject them; unfortunately, that means you will no longer be able to use the Services. If you use the Services in any way after a change to the Terms is effective, that means you agree to all of the changes.

Except for changes by us as described here, no other amendment or modification of these Terms will be effective unless in writing and signed by both you and us.

What about my privacy?

Portion takes the privacy of its users very seriously. For the current Portion Privacy Policy, please click here.

The Children’s Online Privacy Protection Act (“COPPA”) requires that online service providers obtain parental consent before they knowingly collect personally identifiable information online from children who are under 13. We do not knowingly collect or solicit personally identifiable information from children under 13; if you are a child under 13, please do not attempt to register for the Services or send any personal information about yourself to us. If we learn we have collected personal information from a child under 13, we will delete that information as quickly as possible. If you believe that a child under 13 may have provided us personal information, please contact us at hello@portion.io.

What are the basics of using Portion?

You may be required to connect to Portion using a provided 3rd party Ethereum wallet. If desired you may select a user name (“Portion User ID”). You promise to provide us with accurate, complete, and updated registration information about yourself. You may not select as your Portion User ID a name that you don’t have the right to use, or another person’s name with the intent to impersonate that person. You may not transfer your account to anyone else without our prior written permission.

You represent and warrant that you are an individual of legal age to form a binding contract (or if not, you’ve received your parent’s or guardian’s permission to use the Services and gotten your parent or guardian to agree to these Terms on your behalf). If you’re agreeing to these Terms on behalf of an organization or entity, you represent and warrant that you are authorized to agree to these Terms on that organization or entity’s behalf and bind them to these Terms (in which case, the references to “you” and “your” in these Terms, except for in this sentence, refer to that organization or entity).

You will only use the Services for your own internal, personal, and not on behalf of or for the benefit of any third party, and only in a manner that complies with all laws that apply to you. If your use of the Services is prohibited by applicable laws, then you aren’t authorized to use the Services. We can’t and won’t be responsible for your using the Services in a way that breaks the law.

You will not share your account or password with anyone, and you must protect the security of your account and your password. You’re responsible for any activity associated with your account.

Your use of the Services is subject to the following additional restrictions:

You represent, warrant, and agree that you will not contribute any Content or User Submission (each of those terms is defined below) or otherwise use the Services or interact with the Services in a manner that:

a.       Infringes or violates the intellectual property rights or any other rights of anyone else (including Portion);

b.       Violates any law or regulation, including, without limitation, any applicable export control laws;

c.       Is harmful, fraudulent, deceptive, threatening, harassing, defamatory, obscene, or otherwise objectionable;

d.       Jeopardizes the security of your Portion account or anyone else’s (such as allowing someone else to log in to the Services as you);

e.       Attempts, in any manner, to obtain the password, account, or other security information from any other user;

f.        Violates the security of any computer network, or cracks any passwords or security encryption codes;

g.       Runs Maillist, Listserv, any form of auto-responder or “spam” on the Services, or any processes that run or are activated while you are not logged into the Services, or that otherwise interfere with the proper working of the Services (including by placing an unreasonable load on the Services’ infrastructure);

h.       “Crawls,” “scrapes,” or “spiders” any page, data, or portion of or relating to the Services or Content (through use of manual or automated means);

i.        Copies or stores any significant portion of the Content;

j.        Decompiles, reverse engineers, or otherwise attempts to obtain the source code or underlying ideas or information of or relating to the Services.

 

A violation of any of the foregoing is grounds for termination of your right to use or access the Services.

What are my rights in the Services?

The materials displayed or performed or made available on or through the Services, including, but not limited to, text, graphics, data, articles, photos, images, illustrations, User Submissions (defined below), and so forth (all of the foregoing, the “Content”) are protected by copyright and/or other intellectual property laws. You promise to abide by all copyright notices, trademark rules, information, and restrictions contained in any Content you access through the Services, and you won’t use, copy, reproduce, modify, translate, publish, broadcast, transmit, distribute, perform, upload, display, license, sell, commercialize or otherwise exploit for any purpose any Content not owned by you, (i) without the prior consent of the owner of that Content or (ii) in a way that violates someone else’s (including Portion’s) rights.

You understand that Portion owns the Services. You won’t modify, publish, transmit, participate in the transfer or sale of, reproduce (except as expressly provided in this Section), create derivative works based on, or otherwise exploit any of the Services.

The Services may allow you to copy or download certain Content; please remember that just because this functionality exists, doesn’t mean that all the restrictions above don’t apply – they do!

Do I have to grant any licenses to Portion or to other users?

Anything you post, upload, share, store, or otherwise provide through the Services is your “User Submission.” Some User Submissions may be viewable by other users. In order to display your User Submissions on the Services, and to allow other users to enjoy them (where applicable), you grant us certain rights in those User Submissions. Please note that all of the following licenses are subject to our Privacy Policy to the extent they relate to User Submissions that are also your personally-identifiable information.

For all User Submissions, you hereby grant Portion a license to translate, modify (for technical purposes, for example making sure your content is viewable on an iPhone as well as a computer) and reproduce and otherwise act with respect to such User Submissions, in each case to enable us to operate the Services, as described in more detail below. This is a license only – your ownership in User Submissions is not affected.

If you share a User Submission publicly on the Services and/or in a manner that more than just you or certain specified users can view, or if you provide us (in a direct email or otherwise) with any feedback, suggestions, improvements, enhancements, and/or feature requests relating to the Services (each of the foregoing, a “Public User Submission”), then you grant Portion the licenses above, as well as a license to display, perform, and distribute your Public User Submission for the purpose of making that Public User Submission accessible to all Portion users and providing the Services necessary to do so, as well as all other rights necessary to use and exercise all rights in that Public User Submission in connection with the Services and/or otherwise in connection with Portion’s business. Also, you grant all other users of the Services a license to access that Public User Submission, and to use and exercise all rights in it, as permitted by the functionality of the Services.

You agree that the licenses you grant are royalty-free, perpetual, irrevocable, and worldwide, provided that when you delete your Portion account, we will stop displaying your User Submissions (other than Public User Submissions, which may remain fully available) to other users (if applicable), but you understand and agree that it may not be possible to completely delete that content from Portion’s records, and that your User Submissions may remain viewable elsewhere to the extent that they were copied or stored by other users.

If you are a Seller marketing Art through the Services, you hereby grant us a limited, non-exclusive, non-transferable, revocable license to your names, marks, logos, and other identifiers for the Services (“Trademarks”) only for the purpose of displaying and selling your Art through the Services.  Portion will only use Trademarks in the form and manner, and in accordance with the quality standards and usage guidelines that Seller specifically prescribes and only in connection with the Services; and upon termination of this Agreement for any reason, Portion will cease all use of the Trademarks.

Finally, you understand and agree that Portion, in performing the required technical steps to provide the Services to our users (including you), may need to make changes to your User Submissions to conform and adapt those User Submissions to the technical requirements of connection networks, devices, services, or media, and the foregoing licenses include the rights to do so.

What if I see something on the Services that infringes my copyright?

You may have heard of the Digital Millennium Copyright Act (the DMCA”), as it relates to online service providers, like Portion, being asked to remove material that allegedly violates someones copyright. We respect othersintellectual property rights, and we reserve the right to delete or disable Content alleged to be infringing, and to terminate the accounts of repeat alleged infringers; to review our complete Copyright Dispute Policy and learn how to report potentially infringing content, click here to Portions Copyright Dispute Policy. To learn more about the DMCA, click here [link to http://www.copyright.gov/legislation/dmca.pdf].

Who is responsible for what I see and do on the Services?

Any information or content publicly posted or privately transmitted through the Services is the sole responsibility of the person from whom such content originated, and you access all such information and content at your own risk, and we aren’t liable for any errors or omissions in that information or content or for any damages or loss you might suffer in connection with it.  We cannot control and have no duty to take any action regarding how you may interpret and use the Content or what actions you may take as a result of having been exposed to the Content, and you hereby release us from all liability for you having acquired or not acquired Content through the Services. We can’t guarantee the identity of any users with whom you interact in using the Services and are not responsible for which users gain access to the Services.

You are responsible for all Content you contribute, in any manner, to the Services, and you represent and warrant you have all rights necessary to do so, in the manner in which you contribute it. You will keep all your registration information accurate and current. You are responsible for all your activity in connection with the Services.

The Services may contain links or connections to third party websites or services that are not owned or controlled by Portion. When you access third party websites or use third party services, you accept that there are risks in doing so, and that Portion is not responsible for such risks. We encourage you to be aware when you leave the Services and to read the terms and conditions and privacy policy of each third party website or service that you visit or utilize.

Portion has no control over, and assumes no responsibility for, the content, accuracy, privacy policies, or practices of or opinions expressed in any third party websites or by any third party that you interact with through the Services. In addition, Portion will not and cannot monitor, verify, censor or edit the content of any third party site or service. By using the Services, you release and hold us harmless from any and all liability arising from your use of any third party website or service.

Your interactions with organizations and/or individuals found on or through the Services, including payment and delivery of goods or services, and any other terms, conditions, warranties or representations associated with such dealings, are solely between you and such organizations and/or individuals. You should make whatever investigation you feel necessary or appropriate before proceeding with any online or offline transaction with any of these third parties. You agree that Portion shall not be responsible or liable for any loss or damage of any sort incurred as the result of any such dealings.

If there is a dispute between participants on this site, or between users and any third party, you agree that Portion is under no obligation to become involved. In the event that you have a dispute with one or more other users, you release Portion, its directors, officers, employees, agents, and successors from claims, demands, and damages of every kind or nature, known or unknown, suspected or unsuspected, disclosed or undisclosed, arising out of or in any way related to such disputes and/or our Services. If you are a California resident, you shall and hereby do waive California Civil Code Section 1542, which says: "A general release does not extend to claims which the creditor does not know or suspect to exist in his favor at the time of executing the release, which, if known by him must have materially affected his settlement with the debtor."

What do I need to know about purchasing Art through the Services?

a.       Eligibility and Terms. In order to submit an order for Art through the Services as a Buyer, or to act as a Seller, you must be at least 18 years old and have a valid Payment Method (defined below) accepted by the Services with full authority to use it. Portion reserves the right, in its sole discretion, to take steps to verify your identity and/or eligibility to access and use the Services. Any payment terms presented to you in the process of ordering Art through the Services are deemed part of these Terms (“Payment Terms”). In the event of any conflict between these Terms and the Payment Terms, the latter will control.

b.       Art Descriptions and Availability. Descriptions, images, references, features, content, specifications, products, prices, and availability of any Art made available through the Services are subject to change without notice. The inclusion of any Art on the Services at a particular time does not imply or warrant that such Art will be available at any time. We reserve the right, with or without prior notice, to limit the available quantity of or discontinue any Art on the Services; to bar any Buyer from making any or all purchases; or to refuse to provide any Buyer with any Art.

c.       Licensed Rights to Digital Art.  All licensed rights to digital Art shall be specified by the Seller supplying such Art.  All licenses that take place through the Services are directly between the Seller supplying the Art through the Services and the Buyer of said Art.  Portion is not a party to any such licenses.

d.       How Physical Art Will Be Delivered.  Unless otherwise agreed in writing, all physical Art displayed on the Services is designated for direct fulfillment. Sellers – not Portion – are responsible for shipping purchased physical Art directly to the Buyer. Buyer may choose the method of shipment, timing and address for delivery, and such elections will form part of the Payment Terms. Buyer will be charged shipping and handling charges accordingly based on Buyer’s choices. Seller agrees to be responsible for managing and paying for transportation of physical Art to the Buyer.

e.       Risk of Loss. The risk of loss and title for all products you order passes to Buyer upon Seller’s delivery of products to the carrier (such as FedEx, UPS, or USPS).

f.        Payment Method.  You must register an eligible Ethereum wallet capable of engaging in transactions using Ethereum cryptocurrency or PRT Governance Token (“Payment Method”). You represent and warrant that you are authorized to register and use this Payment Method. 

g.       Payment. By choosing to purchase something through the Services, you agree to pay all charges at the prices then in effect for everything you purchase in accordance with the applicable Payment Terms. Any financial transactions that you engage in will be conducted, managed and confirmed solely through the Ethereum blockchain network (the “Ethereum Network”) via your Payment Method. You authorize the Ethereum Network to charge your Payment Method.   You understand that your Ethereum public address will be made publicly visible whenever you engage in a transaction on the Service.  Portion will have no insight into or control over these payments or transactions, nor do we have the ability to reverse any transactions. 

h.       Pricing. The current prices can be found on the Services. Sellers – not Portion – determine the prices of Art displayed on the Services. Portion cannot confirm the price of an item until Buyer orders it. If the price of an item sold through the Services is higher than represented on the Services, we may, in our sole discretion, cancel your order and notify you of such cancellation, or contact you in order to determine whether you still want to proceed with the transaction.

i.        Gas Fee. Ethereum requires the payment of a transaction fee (“Gas Fee”) for every transaction that occurs on the Ethereum Network. It is your responsibility to pay the Gas Fee for each transaction that occurs via the Services.

j.        Taxes. It is your responsibility to determine whether, and to what extent, any taxes apply to your use of the Services and any transactions you conduct through the Services (including, without limitation, any taxes that may become payable as the result of your ownership or transfer of any Art), and to withhold, collect, report and remit the correct amounts of taxes to the appropriate tax authorities.

k.       Your legal obligations. It is your responsibility to ascertain and obey all applicable local, state, federal, and international laws (including minimum age requirements) in regard to the possession, use, and sale of any Art purchased through the Services. By placing an order, you represent that the Art ordered will be used only in a lawful manner.

 

Will Portion ever change the Services?

We’re always trying to improve the Services, so they may change over time. We may suspend or discontinue any part of the Services, or we may introduce new features or impose limits on certain features or restrict access to parts or all of the Services. We’ll try to give you notice when we make a material change to the Services that would adversely affect you, but this isn’t always practical. Similarly, we reserve the right to remove any Content from the Services at any time, for any reason (including, but not limited to, if someone alleges you contributed that Content in violation of these Terms), in our sole discretion, and without notice.

What if I want to stop using the Services?

You’re free to do that at any time, by contacting us at hello@portion.io; please refer to our Privacy Policy, as well as the licenses above, to understand how we treat information you provide to us after you have stopped using our Services.

Portion is also free to terminate (or suspend access to) your use of the Services or your account, for any reason in our discretion, including your breach of these Terms.  Portion has the sole right to decide whether you are in violation of any of the restrictions set forth in these Terms.

Account termination may result in destruction of any Content associated with your account, so keep that in mind before you decide to terminate your account. We will try to provide advance notice to you prior to our terminating your account so that you are able to retrieve any important User Submissions you may have stored in your account (to the extent allowed by law and these Terms), but we may not do so if we determine it would be impractical, illegal, not in the interest of someone’s safety or security, or otherwise harmful to the rights or property of Portion.

If you have deleted your account by mistake, contact us immediately at [insert means] – we will try to help, but unfortunately, we can’t promise that we can recover or restore anything.

Provisions that, by their nature, should survive termination of these Terms shall survive termination. By way of example, all of the following will survive termination: any obligation you have to pay us or indemnify us, any limitations on our liability, any terms regarding ownership or intellectual property rights, and terms regarding disputes between us, including without limitation the arbitration agreement.

What else do I need to know?

Warranty Disclaimer. You understand that Portion does not manufacture, own, take title to, store, have possession of, inspect or sell any of the Art listed, marketed, offered or sold on or in connection with our Services (whether online or offline). We provide the venue; the Art in our marketplaces is listed and sold directly by independent Sellers, so neither Portion nor its licensors or suppliers make any representations or warranties concerning any Art or content contained in or accessed through the Services, and we will not be responsible or liable for the quality, accuracy, copyright compliance, legality, or decency of material contained in or accessed through the Services. We (and our licensors and suppliers) make no representations or warranties regarding suggestions or recommendations of Art offered or purchased through the Services. Art purchased or offered (whether or not following such suggestions and recommendations) through the Services are provided “AS IS” and without any warranty of any kind, including, without limitation, warranties about authenticity, quality, or title, from Portion or others (unless, with respect to such others only, provided expressly and unambiguously in writing by a designated third party for a specific piece of Art). Any legal claim related to Art you purchase must be brought directly against the Seller of Art. You release Portion from any claims related to Art sold through our Services, including for defective items or misrepresentations by Sellers. You release Portion from any claims related to Art sold through our Services, including for misrepresentations by sellers. You may come across materials that you find offensive or inappropriate while using our Services. We make no representations concerning any Art or content posted by users through the Services. Portion is not responsible for the accuracy, copyright compliance, legality, or decency of Art or content posted by users that you accessed through the Services. You release us from all liability relating to that Art and content. You can use the Services to interact with other individuals, either online or in person. However, you understand that we do not screen users of our Services, and you release us from all liability relating to your interactions with other users. Please be careful and exercise caution and good judgment in all interactions with others, especially if you are meeting someone in person. THE SERVICES AND CONTENT ARE PROVIDED BY PORTION (AND ITS LICENSORS AND SELLERS) ON AN “AS-IS” BASIS, WITHOUT WARRANTIES OR ANY KIND, EITHER EXPRESS OR IMPLIED, INCLUDING, WITHOUT LIMITATION, IMPLIED WARRANTIES OF MERCHANTABILITY, FITNESS FOR A PARTICULAR PURPOSE, NON-INFRINGEMENT, OR THAT USE OF THE SERVICES WILL BE UNINTERRUPTED OR ERROR-FREE. SOME STATES DO NOT ALLOW LIMITATIONS ON HOW LONG AN IMPLIED WARRANTY LASTS, SO THE ABOVE LIMITATIONS MAY NOT APPLY TO YOU.

Limitation of Liability. TO THE FULLEST EXTENT ALLOWED BY APPLICABLE LAW, UNDER NO CIRCUMSTANCES AND UNDER NO LEGAL THEORY (INCLUDING, WITHOUT LIMITATION, TORT, CONTRACT, STRICT LIABILITY, OR OTHERWISE) SHALL PORTION (OR ITS LICENSORS OR SELLERS) BE LIABLE TO YOU OR TO ANY OTHER PERSON FOR (A) ANY LOSSES RELATING TO ANY ART PURCHASED ON OR THROUGH THE SERVICES, OR (B) INDIRECT, SPECIAL, INCIDENTAL, OR CONSEQUENTIAL DAMAGES OF ANY KIND, INCLUDING DAMAGES FOR LOST PROFITS, LOSS OF GOODWILL, WORK STOPPAGE, ACCURACY OF RESULTS, OR COMPUTER FAILURE OR MALFUNCTION, OR (C) ANY LOSSES YOU INCUR AS THE RESULT OF (I) ANY TRANSACTIONS THAT YOU ENGAGE IN THROUGH THE SERVICES OR (II) YOUR USE OF YOUR PAYMENT METHOD OR THE ETHEREUM NETWORK, INCLUDING FEATURES THEREOF, OR (D) ANY AMOUNT, IN THE AGGREGATE, IN EXCESS OF $100, OR (E) ANY MATTER BEYOND OUR REASONABLE CONTROL. SOME STATES DO NOT ALLOW THE EXCLUSION OR LIMITATION OF CERTAIN DAMAGES, SO THE ABOVE LIMITATION AND EXCLUSIONS MAY NOT APPLY TO YOU.

Indemnity. You agree to indemnify and hold Portion, its affiliates, officers, agents, employees, and partners harmless from and against any and all claims, liabilities, damages (actual and consequential), losses and expenses (including attorneys’ fees) arising from or in any way related to any third party claims relating to (a) your use of the Services (including any actions taken by a third party using your account), and (b) your violation of these Terms. In the event of such a claim, suit, or action (“Claim”), we will attempt to provide notice of the Claim to the contact information we have for your account (provided that failure to deliver such notice shall not eliminate or reduce your indemnification obligations hereunder).  Seller agrees to indemnify and hold Portion, its affiliates, officers, agents, employees, and partners harmless from and against any and all claims, liabilities, damages (actual and consequential), losses and expenses (including attorneys’ fees) arising from or in any way related to the Art supplied by Seller through the Services.

Disputes with Other Users.  If you encounter an issue with a transaction (such as a non-delivery or Art not being as described) or if you find yourself in a dispute with another user of Portion’s Services or a third party, we encourage you to contact the other party directly and try to resolve the issue or dispute amicably.  Portion is not directly involved in transactions between individual Buyers and Sellers, so while it is our hope that both the Buyer and Seller will come to a mutual resolution, we cannot and do not guarantee this will be the case. You release Portion from any claims, demands and damages (actual and consequential) of every kind and nature, known and unknown, arising out of or in any way connected with such issues and disputes. In entering into this release you expressly waive any protections (whether statutory or otherwise) that would otherwise limit the coverage of this release to include only those claims which you may know or suspect to exist in your favor at the time of agreeing to this release.

Assignment. You may not assign, delegate or transfer these Terms or your rights or obligations hereunder, or your Services account, in any way (by operation of law or otherwise) without Portion’s prior written consent. We may transfer, assign, or delegate these Terms and our rights and obligations without consent.

Choice of Law. These Terms are governed by and will be construed under the Federal Arbitration Act, applicable federal law, and the laws of the State of New York, without regard to the conflicts of laws provisions thereof.

Arbitration Agreement. Please read the following ARBITRATION AGREEMENT carefully because it requires you to arbitrate certain disputes and claims with PORTION and limits the manner in which you can seek relief from us. Both you and Portion acknowledge and agree that for the purposes of any dispute arising out of or relating to the subject matter of these Terms, Portion’s officers, directors, employees, Buyers, Sellers and independent contractors (“Personnel”) are third party beneficiaries of these Terms, and that upon your acceptance of these Terms, Personnel will have the right (and will be deemed to have accepted the right) to enforce these Terms against you as the third party beneficiary hereof.

(a) Arbitration Rules; Applicability of Arbitration Agreement. Any dispute arising out of or relating to the subject matter of these Terms shall be finally settled by binding arbitration in New York County, New York. The arbitration will proceed in the English language, in accordance with the Streamlined Arbitration Rules and Procedures of Judicial Arbitration and Mediation Services, Inc. ("JAMS") then in effect, by one commercial arbitrator with substantial experience in resolving intellectual property and commercial contract disputes, who shall be selected from the appropriate list of JAMS arbitrators in accordance with such Rules. Judgment upon the award rendered by such arbitrator may be entered in any court of competent jurisdiction. Notwithstanding the foregoing obligation to arbitrate disputes, each party shall have the right to pursue injunctive or other equitable relief at any time, from any court of competent jurisdiction.

(b) Costs of Arbitration. The JAMS rules will govern payment of all arbitration fees. Portion will pay all arbitration fees for claims less than $75,000. Portion will not seek its attorneys’ fees and costs in arbitration unless the arbitrator determines that your claim is frivolous.

(c) Small Claims Court. Furthermore, either you or Portion may assert claims, if they qualify, in small claims court in New York County, New York or any United States county where you live or work.

(d) Waiver of Jury Trial. YOU AND PORTION WAIVE ANY CONSTITUTIONAL AND STATUTORY RIGHTS TO GO TO COURT AND HAVE A TRIAL IN FRONT OF A JUDGE OR JURY. You and Portion are instead choosing to have claims and disputes resolved by arbitration. Arbitration procedures are typically more limited, more efficient, and less costly than rules applicable in court and are subject to very limited review by a court. In any litigation between you and Portion over whether to vacate or enforce an arbitration award, YOU AND PORTION WAIVE ALL RIGHTS TO A JURY TRIAL, and elect instead to have the dispute be resolved by a judge.

(e) Waiver of Class or Consolidated Actions. ALL CLAIMS AND DISPUTES WITHIN THE SCOPE OF THIS ARBITRATION AGREEMENT MUST BE ARBITRATED OR LITIGATED ON AN INDIVIDUAL BASIS AND NOT ON A CLASS BASIS. CLAIMS OF MORE THAN ONE CUSTOMER OR USER CANNOT BE ARBITRATED OR LITIGATED JOINTLY OR CONSOLIDATED WITH THOSE OF ANY OTHER CUSTOMER OR USER. If however, this waiver of class or consolidated actions is deemed invalid or unenforceable, neither you nor we are entitled to arbitration; instead all claims and disputes will be resolved in a court as set forth in (g) below.

(f) Opt-out. You have the right to opt out of the provisions of this Section by sending written notice of your decision to opt out to the following address: 2307 Broadway Ave. NY, NY 10024 postmarked within 30 days of first accepting these Terms. You must include (1) your name and residence address; (2) the email address and/or telephone number associated with your account; and (3) a clear statement that you want to opt out of these Terms’ arbitration agreement.

(g) Exclusive Venue. If you send the opt-out notice in (f), and/or in any circumstances where the foregoing arbitration agreement permits either you or Portion to litigate any dispute arising out of or relating to the subject matter of these Terms in court, then the foregoing arbitration agreement will not apply to either party and both you and Portion agree that any judicial proceeding (other than small claims actions) will be brought in the state or federal courts located in, respectively, New York County, New York, or the Southern District of New York.

Miscellaneous. You will be responsible for paying, withholding, filing, and reporting all taxes, duties, and other governmental assessments associated with your activity in connection with the Services, provided that Portion may, in its sole discretion, do any of the foregoing on your behalf or for itself as it sees fit. The failure of either you or us to exercise, in any way, any right herein shall not be deemed a waiver of any further rights hereunder. If any provision of these Terms is found to be unenforceable or invalid, that provision will be limited or eliminated, to the minimum extent necessary, so that these Terms shall otherwise remain in full force and effect and enforceable. You and Portion agree that these Terms are the complete and exclusive statement of the mutual understanding between you and Portion, and that these Terms supersede and cancel all previous written and oral agreements, communications and other understandings relating to the subject matter of these Terms,. You hereby acknowledge and agree that you are not an employee, agent, partner, or joint venture of Portion, and you do not have any authority of any kind to bind Company in any respect whatsoever.

Except as expressly set forth in the section the arbitration agreement, you and Portion agree there are no third party beneficiaries intended under these Terms.