Effective date: October 10, 2018
Portion is a technology service provider and an online exchange. In its capacity as an exchange, Portion is acting solely as a platform that facilitates transactions directly between Buyers and Sellers. Portion is not and may not be construed as an authenticator, art dealer, art advisor, artist, creator, fabricator, gallery, retailer, supplier, distributor, reseller or sales agent. Portion does not create, fabricate, own, take title to, store, take possession of, inspect, appraise, authenticate, or directly offer for sale any of the Art listed, marketed, offered or sold on or in connection with our Services (whether online or offline), unless expressly agreed in a signed writing. 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 such Art, and Portion is not a party to any sale transaction. Sellers and Buyers are solely responsible for their respective obligations, including any representations and warranties made by a Seller in connection with any Art sold through Portion. In certain scenarios (Drops), Portion may fulfill the function as seller outlined in this agreement Portion bears no responsibility for acting or failing to act with respect to any Art. Art is subject to copyright and may be subject to other rights held by its artist, including the right to disclaim authorship.
Portion does not make any express or implied warranties with respect to Art, including, without limitation, warranties of authenticity, provenance, title, description, condition, present or future value, advisability of a purchase or sale of Art, or investment potential. You understand and accept that Art is not intended to be income producing, and its financial value is variable and unpredictable. Portion takes no liability for the loss in financial value of any Art, and by using Portion, you expressly waive any claims you may have relating to any such loss.
Sellers that use the Services may have their own additional terms and conditions that apply to the Art they offer for sale. Such terms and conditions may be posted in a listing on the Services or otherwise made available in connection with certain Art, and you are responsible for reviewing all relevant information available on the Services before buying any Art. In no event will any Seller's own terms and conditions constitute any representation, warranty, or assumption of liability of any kind by Portion.
Portion's technology may facilitate communication between Buyers and Sellers in the future. We are not to be deemed the agent of any Buyer or Seller, for any purpose. Neither we nor any Buyer or Seller has any obligation to accept or respond to any inquiry, and we bear no liability for any delay or failure to respond to communications.
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. Among other things, 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 through posting a notice on our Services, upon your next log-in attempt, or by another means. You agree that all agreements, notices, disclosures and other communications that we provide to you electronically satisfy any legal requirement that such communications be in writing. You agree that all notices we provide to you by email will be considered received by you on the day that we send them. 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 made in writing and signed by both you and us.
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 email@example.com.
What are the basics of using Portion?
You must sign up for an account and select a user name ("Portion User ID"). You will be issued a mnemonic: a string of 12 randomly selected words that function as both your login and password. This is your key to enter Portion. If you lose your mnemonic, you will be locked out of your account, with no way to restore or access your purchases or digital collection. For your security and anonymity, Portion does not store mnemonics, nor provide backup access to any account. SAVE YOUR MNEMONIC! You are responsible for maintaining the confidentiality of your mnemonic, and for all activities that occur under or through your account or mnemonic. You agree to notify us immediately if you suspect or become aware of any unauthorized access to or use of your account or mnemonic or other breach of security on our Services.
If you choose to provide an email address or other registration information, you promise to provide us with accurate, complete, and updated registration information about yourself. We are not responsible for any automatic filtering that you or your network provider may apply to any email that we send to the email address you provide. If at any time you would like to withdraw your consent to receive emails, please use the "unsubscribe" button on the email to do so, however it is understood and agreed by you that if you withdraw consent, you may not be able to participate in all Services offered.
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. We may reclaim or repurpose any Portion User ID at any time at our sole discretion, for any reason, including if we believe it is necessary to comply with the rights of a third party. You may not rent, sell, lease, sublicense or otherwise transfer your Portion User ID or your account, or any access to or use of the Services, to anyone else without our prior written permission.
You may only use our Services if you are a person over the age of thirteen (13), can form a binding contract with us, and only as permitted by law. If you're agreeing to these Terms on behalf of an organization or entity, you represent and warrant that you are formally 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 use, 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 mnemonic with anyone, and you must protect the security of your account and your mnemonic. You're responsible for any activity associated with your account.
Consent to receive periodic messages
As part of the Services, you may receive communications through the Services, including messages that Portion sends you (for example, via in-app push notifications or email). BY SIGNING UP FOR THE SERVICES, YOU AGREE TO RECEIVE COMMUNICATIONS FROM PORTION. If you have provided an email address or other contact information, you represent and warrant that the contact information registered for the Services is true and accurate. You agree to indemnify and hold Portion 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 your breach of the foregoing.
Your use of the Services is subject to the following additional restrictions:
You represent, warrant, and agree that you will not contribute any Art, Content or User Submission (latter two terms as 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 mnemonic, account, or other security information from any other user; f. Violates the security of any computer network, or cracks any mnemonics 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, Ethereum address, Portion User ID or any of or our Services or Content (through use of manual or automated means) in whole or in part; i. Copies or stores any significant part 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 publicly on the Services, 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, is your "User Submission." In order to display your User Submissions on the Services, and to allow other users to view, purchase or sell them (where applicable), you grant us the following rights in those User Submissions.
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 a mobile device 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. Further, you grant Portion a license to display, perform, and distribute your User Submission for the purpose of making that 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 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 User Submission, and to use and exercise all rights in it, as permitted by the functionality of the Services.
If you are a Seller providing Art through the Services, you hereby grant us a limited, non-exclusive, non-transferable, revocable license to your name(s), likeness, bio, trademarks, logos, images of your Art and other identifiers for the Services, for the purpose of displaying, marketing and promoting your Art for sale through the Services. This is a license only - your copyright ownership in your User Submissions is not affected.
You agree that the licenses you grant are royalty-free, perpetual, irrevocable, and worldwide. You understand and agree that it may not be possible to completely delete your User Submissions 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.
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 someone's copyright. We respect others' intellectual property rights, and we reserve the right to hide Content alleged to be infringing, and to hide the accounts of any Seller listed as an artist through our Services. To review our complete Copyright Dispute Policy and learn how to report potentially infringing content, click here [link to Portion's Copyright Dispute Policy (below)]. To learn more about the DMCA, click here. You understand that it may not be possible to completely delete all infringing material from Portion's records, and that it may remain viewable elsewhere, or if it was copied or stored on other media or by other users.
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.
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
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
ordering Art through the Services are deemed part of these Terms ("Payment Terms"). In the event of any
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. The availability of Art will also be subject to a Seller's desire to make Art available.
c. Risk of Loss. The risk of loss and title to digital Art, along with possession thereof, passes to a Buyer immediately upon the respective Seller's receipt of funds.
d. Payment. You must register an eligible Ethereum wallet capable of engaging in transactions using Ethereum cryptocurrency or have a valid credit/debit card (“Payment Method”). You represent and warrant that you are authorized to register and use this Payment Method. 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 through the Ethereum blockchain network (the “Ethereum Network”) or payment processing vendor via your Payment Method. You authorize the Ethereum Network or payment process vendor 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.
e. Pricing. Prices of Art can be found directly on the specific listing for each, through the Services. Sellers - not Portion - determine the prices of Art displayed on the Services. The price of an item is not confirmed until a Buyer purchases it.
f. Gas Fee. Ethereum requires the payment of a fee ("Gas Fee") to power every transaction that occurs on the Ethereum Network and enables the decentralized network to function. Portion does not retain or benefit from Gas Fees. Gas Fee prices will vary. It is your responsibility to pay the Gas Fee for each transaction that you initiate (i.e., buying, selling, and transferring) that occurs via the Services.
g. 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.
h. 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.
i. Disclaimer. Portion does not make any express or implied warranties with respect to Art, including, without limitation, warranties of authenticity, provenance, title, description, condition, present or future value, advisability of a purchase or sale of Art, or investment potential. You understand and accept that Art is not intended to be income producing, and its financial value is variable and unpredictable. Portion takes no liability for the loss in financial value of any Art, and by using Portion, you expressly waive any claims you may have relating to any such loss.
What Are Drops?
'DROPS' are limited run sales where the customer will receive one of a variety of goods included in the sale. The goods included in each drop will be described and available for all customers to view. Portion guarantees that when someone purchases an 'ENTRY' (purchase of an unspecified good) there is a completion of a sale of a physical and/or digital good available in the Drop. Items within a Drop will be provided by merchant partners and/or Portion.
If an offer becomes unavailable between ordering and processing, Portion will either cancel or not process the order and will notify you by email.
You are only charged if all of the Entries to a drop are sold out after three months (90 days) of original listing date. Your payment will only be collected if, at the time of the deadline, all Entries of the Drop have been sold out entirely. If the Drop does not sell all entries by the time of the deadline, you will receive a full refund for the number of entries you purchased.
Eligibility for Drops. Purchase of Entry does not increase your chance of receiving a specific good included in the Drop. Drops are open to permanent, legal residents of Argentina, Australia, Belgium, Canada, Chile, Colombia, Czech Republic, Denmark, Finland, France, Germany, Hungary, Iceland, Ireland, Israel, Italy, Japan, Luxembourg, Mexico, Netherlands, Norway, New Zealand, Poland, Portugal, Singapore, South Africa, South Korea, Spain, Sweden, Switzerland, Turkey, United Kingdom, and the United States (excluding Rhode Island) who are eighteen (18) years of age or older at the time of entry. Officers, directors, agents, and employee of Portion, Merchant (supplier), subsidiaries, affiliates, and advertising and promotion agencies, and any other entity involved in the living in the same household of each, whether or not related, are not eligible to enter or win the Drops. All applicable federal, state, and local laws and regulations apply. Void where prohibited.
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; we will have no liability whatsoever for any such withdrawal.
What if I want to stop using the Services?
Portion is also free to 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 firstname.lastname@example.org - 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.
I use the Company App available via the Apple App Store - should I know anything about that?
These Terms apply to your use of all the Services, including the iOS applications available via the Apple, Inc.
("Apple") App Store (the "Application"), but the following additional terms also apply to the Application:
a. Both you and Portion acknowledge that the Terms are concluded between you and Portion only, and not with
and that Apple is not responsible for the Application or the Content;
b. The Application is licensed to you on a limited, non-exclusive, non-transferrable, non-sublicensable basis, solely to be used in connection with the Services for your private, personal, non-commercial use, subject to all the terms and conditions of these Terms as they are applicable to the Services;
c. You will only use the Application in connection with an Apple device that you own or control;
d. You acknowledge and agree that Apple has no obligation whatsoever to furnish any maintenance and support services with respect to the Application;
e. In the event of any failure of the Application to conform to any applicable warranty, including those implied by law, you may notify Apple of such failure; upon notification, Apple's sole warranty obligation to you will be to refund to you the purchase price, if any, of the Application;
f. You acknowledge and agree that Portion, and not Apple, is responsible for addressing any claims you or any third party may have in relation to the Application;
g. You acknowledge and agree that, in the event of any third party claim that the Application or your possession and use of the Application infringes that third party's intellectual property rights, Portion, and not Apple, will be responsible for the investigation, defense, settlement and discharge of any such infringement claim;
h. You represent and warrant that you are not located in a country subject to a U.S. Government embargo, or that has been designated by the U.S. Government as a "terrorist supporting" country, and that you are not listed on any U.S. Government list of prohibited or restricted parties;
i. Both you and Portion acknowledge and agree that, in your use of the Application, you will comply with any applicable third party terms of agreement which may affect or be affected by such use; and
j. Both you and Portion acknowledge and agree that Apple and Apple's subsidiaries are third party beneficiaries of these Terms, and that upon your acceptance of these Terms, Apple 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.
What else do I need to know?
Warranty Disclaimer. You understand that Portion does not create, fabricate, own, take title to, store, take possession of, inspect, appraise, authenticate, or directly offer for sale any of the Art listed, marketed, offered or sold on or in connection with our Services (whether online or offline). We provide the online platform; the Art in our marketplaces is listed and sold directly by independent Sellers, so neither Portion nor its licensors, suppliers or logistics providers 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. Portion may act as seller in Portion's 'Drops' offering. 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, provenance, value, condition, 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). No advice or information (whether oral or written) obtained from Portion or any of its affiliates, or through our Services, will create any warranty by us not expressly stated in these Terms or in a separate written agreement between you and us. 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. If the use of our Services results in the need for servicing or replacing any equipment or data, Portion will not be responsible for those costs or losses, and we urge you to back up your data at all times. 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. THE SERVICES AND CONTENT ARE PROVIDED BY PORTION (AND ITS LICENSORS AND SELLERS) ON AN "AS-IS" AND "AS AVAILABLE" BASIS, WITHOUT WARRANTIES OR ANY KIND, EITHER EXPRESS OR IMPLIED, INCLUDING, WITHOUT LIMITATION, IMPLIED WARRANTIES OF MERCHANTABILITY, FITNESS FOR A PARTICULAR PURPOSE, NON-INFRINGEMENT, AND ANY WARRANTIES ARISING OUT OF COURSE OF DEALING OR USAGE OF TRADE, ALL OF WHICH PORTION AND OUR OFFICERS, OWNERS, DIRECTORS, CONSULTANTS, AGENTS, AND EMPLOYEES EXPRESSLY DISCLAIM TO THE FULLEST EXTENT PERMITTED BY APPLICABLE LAW. WE MAKE NO REPRESENTATIONS OR WARRANTIES OF ANY KIND, EXPRESS OR IMPLIED, THAT OUR SERVICES OR ANY CONTENT WILL MEET YOUR REQUIREMENTS OR BE AVAILABLE, ACCESSIBLE, UNINTERRUPTED, TIMELY, ACCURATE, RELIABLE, COMPLETE, ERROR-FREE, SAFE, SECURE, OR FREE OF VIRUSES OR OTHER HARMFUL COMPONENTS, OR THAT THE USE OF OUR SERVICES IN ANY WAY WILL GIVE RISE TO ANY SPECIFIC RESULTS. SOME STATES DO NOT ALLOW LIMITATIONS ON HOW LONG AN IMPLIED WARRANTY LASTS, SO THE ABOVE LIMITATIONS MAY NOT APPLY TO YOU. YOU ACKNOWLEDGE AND AGREE THAT YOUR ACCESS TO AND USE OF OUR SERVICES IS AT YOUR OWN RISK.
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.
Release. TO THE FULLEST EXTENT PERMITTED BY APPLICABLE LAW, YOU RELEASE PORTION AND ITS OFFICERS, OWNERS, DIRECTORS, CONSULTANTS, AGENTS, AND EMPLOYEES FROM ALL CLAIMS, DEMANDS, SUITS, DAMAGES (ACTUAL AND CONSEQUENTIAL), LOSSES, LIABILITIES, AND EXPENSES (INCLUDING ATTORNEYS' FEES), OF EVERY KIND AND NATURE, KNOWN AND UNKNOWN, SUSPECTED AND UNSUSPECTED, DISCLOSED AND UNDISCLOSED, ARISING OUT OF OR IN CONNECTION WITH: (i) ANY DISPUTES BETWEEN YOU AND ONE (1) OR MORE OTHER USERS OR OTHER THIRD PARTIES RESULTING DIRECTLY OR INDIRECTLY FROM YOUR USE OF OUR SERVICES; (ii) ANY USER CONTENT OR CONDUCT, PERFORMANCE OR NON-PERFORMANCE (WHETHER ONLINE OR OFFLINE) OF ANY OTHER USER OR OTHER THIRD PARTY IN ANY WAY CONNECTED WITH OUR SERVICES, INCLUDING ANY DEFAMATORY, MISLEADING, OFFENSIVE OR UNLAWFUL CONDUCT OR USER CONTENT, OR ANY UNAUTHORIZED ACCESS TO OR USE OF OUR SERVICES, YOUR ACCOUNT OR YOUR USER CONTENT AND/OR INFORMATION; (iii) ANY ART OR OTHER PROPERTY EXHIBITED, LISTED, MARKETED, OFFERED FOR SALE, OR SOLD (WHETHER ONLINE OR OFFLINE) BY ANY OTHER USER OR OTHER THIRD PARTY ON, THROUGH, OR IN ANY WAY CONNECTED WITH OUR SERVICES; OR (iv) ANY COMMUNICATIONS, INTERACTIONS OR MEETINGS (WHETHER IN PERSON, ONLINE OR OTHERWISE) BETWEEN YOU AND ONE (1) OR MORE OTHER USERS OR OTHER THIRD PARTIES RESULTING DIRECTLY OR INDIRECTLY FROM YOUR USE OF OUR SERVICES. YOU EXPRESSLY WAIVE ANY BENEFITS OR 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 ENTERING INTO THIS RELEASE.
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: Trancendus Technology, Inc. d/b/a Portion, 407 Broome Street, Suite 7(b), New York, NY 10013, 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 sections above regarding the Apple Application and the arbitration agreement, you and Portion agree there are no third party beneficiaries intended under these Terms.
Effective date: October 10, 2018
What Information does Portion Collect?
Information You Provide to Us
We receive and store any information you knowingly provide to us. For example, through the registration process and/or through your account settings, we may collect Personal Information that you provide to us, such as your name (if used in your Portion User ID), or email address. Certain information may be required to register with us or to take advantage of some of our features. We may communicate with you if you've provided us the means to do so. For example, if you've given us your email address, we may send you promotional email offers on behalf of other businesses, or email you about your use of the Services. Also, we may receive a confirmation when you open an email from us. This confirmation helps us make our communications with you more interesting and improve our Services. If you do not want to receive communications from us, please unsubscribe through our email.
Information Collected Automatically
Our use of data is solely to optimize your user experience, and we may use this data to customize content for you that we think you might like, based on your usage patterns. We may also use it to improve the Services - for example, this data can tell us how often users use a particular feature of the Services, and we can use that knowledge to make the Services interesting to as many users as possible.
Information Collected From Other Websites and Do Not Track Policy
Will Portion Share Any of the Personal Information it Receives?
We will not sell your data or any information about you or your browsing habits to third parties. We may share your Personal Information with third parties as described in this section:
Information that's been de-identified. We may de-identify your Personal Information so that you are not identified as an individual. We never disclose aggregate usage or de-identified information to a partner (or allow a partner to collect such information) in a manner that would identify you as an individual person.
Affiliated Businesses: In certain situations, our curatorial partners, other businesses or third party websites we're affiliated with may sell or provide products or services to you through or in connection with the Services (either alone or jointly with us). You can recognize when an affiliated business is associated with such a transaction or service, and we will share your Personal Information with that affiliated business only to the extent that it is related to such transaction or service. One such service may include the ability for you to automatically transmit Third Party Account Information to your Services profile or to automatically transmit information in your Services profile to your third party account. We have no control over the policies and practices of third party websites or businesses as to privacy or anything else, so if you choose to take part in any transaction or service relating to an affiliated website or business, please review all such business' or websites' policies.
Agents: We may employ other companies and people to perform tasks on our behalf and need to share some of your information with them to provide products or services to you; for example, we may use a payment processing company to receive and process transactions for us, or a shipping and logistics provider to pack and ship Art. Unless we tell you differently, our agents do not have any right to use the Personal Information we share with them beyond what is necessary to assist us.
User Profiles and Submissions: Certain user profile information, which may include your name (if you choose to use it as your Portion User ID), your shipping address if you purchase Art, in the future may include your location, and any video or image content that such user has uploaded to the Services, may be displayed to other users to facilitate user interaction within the Services or address your request for our services. Please remember that any content you upload to your public user profile, along with any Personal Information or content that you voluntarily disclose online in a manner other users can view becomes publicly available, and can be collected and used by anyone.
Business Transfers: We may choose to buy or sell assets, and may share and/or transfer customer information in connection with the evaluation of and entry into such transactions. Also, if we (or our assets) are acquired, or if we go out of business, enter bankruptcy, or go through some other change of control, Personal Information could be one of the assets transferred to or acquired by a third party.
Is Personal Information about me secure?
Your account is protected by your mnemonic for your privacy and security. Those users with devices able to implement TouchID or FaceID may link those means of access to their account. You must prevent unauthorized access to your account and Personal Information by safeguarding, storing and protecting your mnemonic appropriately and limiting access to your computer or device and browser by signing off after you have finished accessing your account.
We endeavor to protect the privacy of your account and other Personal Information we hold in our records, but unfortunately, we cannot guarantee complete security. Unauthorized entry or use, hardware or software failure, and other factors, may compromise the security of user information at any time.
What Personal Information can I access?
Through your account settings, you may access, and, in some cases, hide from public view or edit the following information you've provided to us:
If you have been granted access to upload Art, any uploaded Art cannot be deleted or removed. We may hide any Art from public view on our platform, in our sole discretion or at your reasonable request. The information you can view, update, and HIDE may change as the Services change. If you have any questions about viewing or updating information we have on file about you, please contact us at email@example.com.
Under California Civil Code Sections 1798.83-1798.84, California residents are entitled to contact us to prevent disclosure of Personal Information to third parties for such third parties' direct marketing purposes; in order to submit such a request, please contact us at firstname.lastname@example.org.
What choices do I have?
You can always choose not to use our services, or opt not to disclose your name, email address or other information to us, but keep in mind that some information may be needed to register with us or to take advantage of some of our features.
You may be able to add, update, or remove information. When you update information, however, we may maintain a copy of the unrevised information in our records. You may erase your user name and hide your account, or may request us to do so by contacting us at email@example.com. Permanent removal of information associated with your account may not be possible. Some information may remain in our records after hiding your account. We may use any aggregated data derived from or incorporating your Personal Information after you update it, but not in a manner that would identify you personally.
What if I have questions about this policy?
If you have any questions or concerns regarding our privacy policies, please send us a detailed message to firstname.lastname@example.org, and we will try to resolve your concerns.
Copyright Dispute Policy
Effective date: October 10, 2018
In accordance with the DMCA, we've adopted the policy below toward copyright infringement. We reserve the right to (1) block access to persons or remove material from public view on Portion.io that we believe in good faith to be copyrighted material that has been illegally copied and distributed by any of our third party artists, content providers, advertisers, affiliates, members or users and (2) remove and discontinue access to repeat offenders.
(1) Procedure for Reporting Copyright Infringements. If you believe that material or content residing on or accessible through the Services infringes your copyright (or the copyright of someone whom you are authorized to act on behalf of), please send a notice of copyright infringement containing the following information to the Portion's Designated Agent to Receive Notification of Claimed Infringement (our "Designated Agent," whose contact details are listed below):
(a) A physical or electronic signature of a person authorized to act on behalf of the owner of the copyright that has been allegedly infringed; (b) Identification of works or materials being infringed; (c) Identification of the material that is claimed to be infringing including information regarding the location of the infringing materials that the copyright owner seeks to have removed, with sufficient detail so that Portion is capable of finding and verifying its existence; (d) Contact information about the notifier including address, telephone number and, if available, email address; (e) A statement that the notifier has a good faith belief that the material identified in (1)(c) is not authorized by the copyright owner, its agent, or the law; and (f) A statement made under penalty of perjury that the information provided is accurate and the notifying party is authorized to make the complaint on behalf of the copyright owner.
(2) Once Proper Bona Fide Infringement Notification is Received by the Designated Agent. Upon receipt of a proper notice of copyright infringement, we reserve the right to:
(a) remove or disable access to the infringing material; (b) notify the content provider who is accused of infringement that we have removed or disabled access to the applicable material; and (c) terminate such content provider's access to the Services if he or she is a repeat offender.
(3) Procedure to Supply a Counter-Notice to the Designated Agent. If the content provider believes that the material that was removed (or to which access was disabled) is not infringing, or the content provider believes that it has the right to post and use such material from the copyright owner, the copyright owner's agent, or, pursuant to the law, the content provider may send us a counter-notice containing the following information to the Designated Agent:
(a) A physical or electronic signature of the content provider; (b) Identification of the material that has been removed or to which access has been disabled and the location at which the material appeared before it was removed or disabled; (c) A statement that the content provider has a good faith belief that the material was removed or disabled as a result of mistake or misidentification of the material; and (d) Content provider's name, address, telephone number, and, if available, email address, and a statement that such person or entity consents to the jurisdiction of the Federal Court for the judicial district in which the content provider's address is located, or, if the content provider's address is located outside the United States, for any judicial district in which Portion is located, and that such person or entity will accept service of process from the person who provided notification of the alleged infringement.
If a counter-notice is received by the Designated Agent, Portion may, in its discretion, send a copy of the counter-notice to the original complaining party informing that person that Portion may replace the removed material or cease disabling it in 10 business days. Unless the copyright owner files an action seeking a court order against the content provider accused of committing infringement, the removed material may be replaced or access to it restored in 10 to 14 business days or more after receipt of the counter-notice, at Portion's discretion.
Please contact Company's Designated Agent at the following address:
[designated agent's information from USCO registration]