TERMS OF SALE
Last Modified: January 27, 2022
PLEASE READ THESE TERMS OF SALE CAREFULLY BEFORE ORDERING PRODUCTS FROM THIS WEBSITE.
BY PLACING AN ORDER FOR PRODUCTS FROM THIS WEBSITE, YOU AFFIRM THAT YOU ARE OF LEGAL AGE TO ENTER INTO THIS AGREEMENT, AND YOU ACCEPT AND ARE BOUND BY THESE TERMS OF SALE. YOU AFFIRM THAT IF YOU PLACE AN ORDER ON BEHALF OF AN ORGANIZATION OR COMPANY, YOU HAVE THE LEGAL AUTHORITY TO BIND ANY SUCH ORGANIZATION OR COMPANY TO THESE TERMS OF SALE.
YOU MAY NOT ORDER OR OBTAIN PRODUCTS FROM THIS WEBSITE IF YOU (A) DO NOT AGREE TO THESE TERMS OF SALE, (B) ARE NOT THE OLDER OF (i) AT LEAST 18 YEARS OF AGE OR (ii) LEGAL AGE TO FORM A BINDING CONTRACT WITH PORTOLITE, OR (C) ARE PROHIBITED FROM ACCESSING OR USING THIS WEBSITE OR ANY OF THIS WEBSITE'S CONTENTS, GOODS OR SERVICES BY APPLICABLE LAW.
THESE TERMS OF SALE REQUIRE THE USE OF ARBITRATION ON AN INDIVIDUAL BASIS TO RESOLVE DISPUTES, RATHER THAN JURY TRIALS OR CLASS ACTIONS.
These Terms of Sale (“Terms of Sale”) apply to the purchase and sale of products (the “Products”) made on www.portolite.com (the “Site”). Portolite Pitching Mounds LLC (referred to as “Portolite”, “us”, “we”, or “our” as the context may require) reserves the right to change these Terms of Sale at any time without prior written notice, in our sole discretion. The Terms of Sale posted on the Site at the time you place your order on the Site will govern that purchase. Portolite’s Terms of Use and Privacy Policy are incorporated herein by this reference.
1. Order Acceptance and Cancellation.
(a) You agree that your order is an offer to buy, under these Terms of Sale, all Products listed in your order. All orders must be accepted by us or we will not be obligated to sell the Products to you. We may choose not to accept any orders in our sole discretion. After receiving your order, we will send you a confirmation email with your order number and details of the items you have ordered. Acceptance of your order and the formation of the contract of sale between you and us will not take place unless and until you have received your order confirmation email.
(b) Fulfillment of all orders on the Site is subject to availability. We reserve the right to cancel a contract of sale by written notice to you in the following situations, without being liable for any damage or costs other than repayment of any amount received from you in relation to the contract of sale that we cancelled:
· the Product you ordered is not available / in stock;
· your billing information is not correct or not verifiable;
· your order is flagged up by our security systems as an unusual order or an order susceptible to fraud;
· your bank transfer payment is not received within twelve (12) calendar days after receipt of your order;
· we believe you are under the legal age in your country;
· we believe that you are a reseller;
· there was an error in the price displayed on the Site;
· we could not deliver to the address provided by you;
· due to a force majeure event (see below); or
· in the event of misspelling, pricing or other errors or mistakes on the Site.
(c) If you would like to cancel an order prior to shipment of the Product, please contact Portolite Customer Service Department by telephone at 1-800-315-8115 or email at portolite@gmail.com. Portolite cannot guarantee cancellation requests for all orders. In the event Portolite is unable to cancel your order, you may be able to return an item in accordance with these Terms of Sale (see below).
2. Prices and Payment Terms.
(a) All prices posted on this Site are subject to change without notice. The price charged for a Product will be the price in effect at the time the order is placed and will be set out in your order confirmation email. Price increases will only apply to orders placed after such changes. Posted prices do not include taxes or charges for shipping and handling. All such taxes and charges will be added to your merchandise total and will be itemized in your shopping cart and in your order confirmation email. Prices displayed on our Site may differ from prices that are available in our physical location or our catalogs. Site prices are in U.S. Dollars.
(b) Terms of payment are within our sole discretion, and payment must be received by us before our acceptance of an order, unless we agree otherwise in writing. We accept major credit cards for purchases. You represent and warrant that (i) the credit card information you supply to us is true, correct, and complete, (ii) you are authorized to use such credit card for the purchase, (iii) charges incurred by you will be honored by your credit card company, and (iv) you will pay charges incurred by you at the posted prices, including all applicable taxes, if any.
(c) We may offer from time to time promotions on the Site that may affect pricing and that are governed by terms and conditions separate from these Terms of Sale. If there is a conflict between the terms for a promotion and these Terms of Sale, the promotion terms will govern.
3. Shipments; Delivery; Title and Risk of Loss.
(a) We will arrange for shipment of the Products to you. You will pay all shipping and handling charges specified during the ordering process. Shipping and handling charges are reimbursement for the costs we incur in the processing, handling, packing, shipping and delivery of your order.
(b) Title and risk of loss pass to you upon our transfer of the Products to the freight carrier for delivery or make the Products available for pickup by you at our location. Shipping and delivery dates are estimates only and cannot be guaranteed. We are not liable for any delays in shipments.
4. Returns and Refunds.
(a) Our Contact Information. We want you to be happy with your purchase! If there is a problem with your order, please contact 1-800-315-8115 or email portolite@gmail.com.
(b) Return of Undamaged Products. Except for any Products designated on the Site as non-returnable and for any Products delivered internationally, if you are not completely satisfied and you are not returning the Product because it is damaged, you must initiate a return within forty five (45) days after delivery of the Product. To initiate a return of undamaged Products, you must call 1-800-315-8115 or email portolite@gmail.com to obtain a Return Merchandise Authorization (“RMA”) number before shipping your Product. Once you receive the RMA from Portolite, you have an additional forty five (45) days to return the Product to Portolite. The returned Product must not have been used and must be in “like new” condition and it must be returned in its original packaging. We offer no refunds on any Products designated on this Site as non-returnable; all special order sales are final; and used Products cannot be returned. You will receive a refund for the purchase price and applicable sales tax, less a 20% restocking fee. You are responsible for all shipping and handling charges for returned Products. You bear the risk of loss during shipment. We therefore strongly recommend that you fully insure your return shipment against loss or damage and that you use a freight carrier that can provide you with proof of delivery for your protection. Your refund will be credited back to the same payment method used to make the original purchase on the Site. Please allow up to two (2) weeks for your return to be processed and refund issued.
(c) Return of Damaged Products. Claims for defective Products must be made in accordance with the terms of Section 6 below. Once the shipment leaves our store, liability falls on the freight carrier. Carefully inspect all Products upon arrival. Any signs of visible damage must be noted on the delivery receipt and signed by the driver. If damage is suspected, open the carton in the presence of the driver. If damage is present, contact the freight carrier immediately and request an inspection. Do not unpack. Keep all items and packing materials in the original container until inspector arrives. To return damaged Products, you must call 1-800-315-8115 or email portolite@gmail.com to obtain a RMA number before shipping your Product. Returns will not be accepted without an RMA number. You are responsible for all shipping and handling charges for returned Products. You bear the risk of loss during shipment. We therefore strongly recommend that you fully insure your return shipment against loss or damage and that you use a freight carrier that can provide you with proof of delivery for your protection. Your refund will be credited back to the same payment method used to make the original purchase on the Site.
(d) Cancellation Policy. Once we have accepted your order, cancellation of the order is subject to a 5% fee.
5. LIMITED WARRANTY FOR PRODUCTS.
(a) Limited Warranty. Portolite warrants that, during the applicable warranty period (as set forth below), certain Products purchased from this Site are sufficient for the purpose manufactured, are of good material and workmanship and are free from defect.
(b) Who May Use This Warranty? This limited warranty extends only to the original purchaser of Product from the Site. It does not extend to any other owner or transferee of the Product.
(c) What Does This Warranty Not Cover? This limited warranty does not cover any damages due to transportation, storage,improper use, failure to follow the product instructions, modifications, combination or use with any products, materials, processes, systems or other matter not provided or authorized in writing by us, normal wear and tear, or external causes such as weather, accidents, abuse, or other actions or events beyond our reasonable control. This limited warranty does not include damages due to wear and tear of the Astro-Turf and FieldTurf products on the turfed mounds. Please see Section 9 regarding turf maintenance.
(d) What is the Period of Coverage? This limited warranty starts on the date of your purchase and lasts according to the terms set forth below for each Product. A warranty period is not extended if we repair or replace a warranted Product. We may change the availability of this limited warranty at our discretion, but any changes will not be retroactive.
· Baseball Game and Practice Mounds: Ten (10) years;
· Soft Softball Pro Spiked Mat, Softball Long Spiked Mat, Softball Ultimate Mat: Five (5) years; and
· Softball Signature Mat, Softball Throw Down Mat, Softball Sticky Mat: Three (3) years.
(e) What Are Your Remedies Under This Warranty? With respect to any defective Products during the applicable warranty period, we will, in our sole discretion, either: (i) repair or replace such Products (or the defective part) free of charge, or (ii) refund the purchase price of such Products. You are responsible for shipping and handling fees to return the repaired or replacement Product to you if we elect to repair or replace the defective Products.
(f) How Do You Obtain Warranty Service? To obtain warranty service, you must call 1-800-315-8115 or email portolite@gmail.com during the applicable warranty period. You will be required to show proof of any issues with the Products by picture and/or video, if possible.
(g) DISCLAIMER. EXCEPT FOR THE EXPRESS WARRANTIES SET FORTH HEREIN, PORTOLITE MAKES NO REPRESENTATIONS AND GRANTS NO WARRANTIES, EXPRESS OR IMPLIED, EITHER IN FACT OR BY OPERATION OF LAW, BY STATUTE OR OTHERWISE, AND PORTOLITE SPECIFICALLY DISCLAIMS ANY OTHER WARRANTIES, WHETHER WRITTEN OR ORAL, OR EXPRESS OR IMPLIED, INCLUDING ANY WARRANTY OF QUALITY, MERCHANTABILITY OR FITNESS FOR A PARTICULAR USE OR PURPOSE.
(h) Applicability. This limited warranty gives you specific legal rights, and you may also have other rights, which vary from state to state and province to province. This limited warranty applies to the greatest extent permitted by applicable law.
(i) Limitation of Liability
THE REMEDIES DESCRIBED ABOVE ARE YOUR SOLE AND EXCLUSIVE REMEDIES AND OUR ENTIRE OBLIGATION AND LIABILITY FOR ANY BREACH OF THIS LIMITED WARRANTY. OUR LIABILITY WILL UNDER NO CIRCUMSTANCES EXCEED THE ACTUAL AMOUNT PAID BY YOU FOR THE DEFECTIVE PRODUCT THAT YOU HAVE PURCHASED THROUGH THE SITE. WE WILL NOT UNDER ANY CIRCUMSTANCES BE LIABLE TO YOU OR ANY THIRD PARTY FOR CONSEQUENTIAL, INDIRECT, INCIDENTAL, SPECIAL, EXEMPLARY, PUNITIVE OR ENHANCED DAMAGES, LOST PROFITS OR REVENUES OR DIMINUTION IN VALUE, ARISING OUT OF, OR RELATING TO, AND/OR IN CONNECTION WITH ANY BREACH OF THESE TERMS OF SALE, REGARDLESS OF (A) WHETHER SUCH DAMAGES WERE FORESEEABLE, (B) WHETHER OR NOT WE WERE ADVISED OF THE POSSIBILITY OF SUCH DAMAGES AND (C) THE LEGAL OR EQUITABLE THEORY (CONTRACT, TORT OR OTHERWISE) UPON WHICH THE CLAIM IS BASED. SOME STATES DO NOT ALLOW THE EXCLUSION OR LIMITATION OF INCIDENTAL OR CONSEQUENTIAL DAMAGES, SO THE ABOVE LIMITATION OR EXCLUSION MAY NOT APPLY TO YOU.
6. Privacy. We respect your privacy and are committed to protecting it. Our Privacy Policy governs the processing of all personal data collected from you in connection with your purchase of Products or services through the Site.
7. Force Majeure. We will not be liable or responsible to you, nor be deemed to have defaulted or breached these Terms of Sale, for any failure or delay in our performance under these Terms of Sale when and to the extent such failure or delay is caused by or results from acts or circumstances beyond our reasonable control, including, without limitation, acts of God, flood, fire, earthquake, explosion, governmental actions, war, invasion or hostilities (whether war is declared or not), terrorist threats or acts, riot or other civil unrest, national emergency, revolution, insurrection, epidemic, lockouts, strikes or other labor disputes (whether or not relating to our workforce), or restraints or delays affecting freight carriers or inability or delay in obtaining supplies of adequate or suitable materials, materials or telecommunication breakdown or power outage.
8. Turf Maintenance Suggestions. Portolite recommends that you do not use steel cleats on any turf products. To add longer life to your Product, we recommend using tennis shoes or rubber turf shoes. Plastic spike shoes will perform better than steel but will also wear the turf faster than rubber cleats or tennis shoes. Portolite does not offer a warranty against turf wear. Turf repair kits are available for purchase on the Site. Portolite recommends applying infield diamond dirt to the landing one and pitching zone where the most common wear spots occur. The diamond dirt will help the turf resist damage/wear.
9. Goods Not for Resale; Export. The Products provided under these Terms of Sale are for your internal use and not for further commercialization. You acknowledge that some or all of the Products may be controlled or restricted under the United States Export Administration Laws and Regulations, the United States Treasury Department, the Office of Foreign Assets Control (“OFAC”), or other applicable laws and regulations relating to the export of products and may be subject to the approval of the U.S. Department of Commerce or Treasury, respectively, prior to export. Any export or re-export of Products by you, directly or indirectly, in contravention of any export control laws, economic sanctions or other laws or regulations applicable to you (“Export Control Laws”) is prohibited, and you shall comply with such laws and regulations, including the Export Control Laws of other countries, and you are responsible for obtaining any required export authorizations, government approvals and licenses required by any Export Control Laws. The Products will not be sold for use in, or to parties that are suspected to be involved in, the development, production, use or stockpiling of weapons of mass destruction; to entities or individuals on any applicable lists of parties denied export privileges (including, without limitation, http://www.bis.doc.gov/complianceandenforcement/liststocheck.htm), or to parties in any embargoed countries. By accessing the Site, and/or purchasing or using the Products, you represent and warrant that you are not a citizen or resident of, and are not customarily resident in, any country or region that is subject to an embargo by the United States government or the European Union, that you are not listed as a sanctioned party on the list of specially designated nationals and blocked persons maintained by the United States (including OFAC) or similar sanction lists maintained by the European Union and other applicable governments and that you are purchasing and will use the Products in compliance with all laws governing export control.
10. Governing Law and Jurisdiction.
All matters arising out of or relating to these Terms of Sale are governed by and construed in accordance with the internal laws of the State of Minnesota giving effect to any choice or conflict of law provision or rule (whether of the State of Minnesota or any other jurisdiction) that would cause the application of the laws of any jurisdiction other than those of the State of Minnesota.
Any legal suit, action, or proceeding arising out of, or related to, these Terms of Sale or the Website shall be instituted exclusively in the federal courts of the United States or the courts of the State of Minnesota. You waive any and all objections to the exercise of jurisdiction over you by such courts and to venue in such courts.
11. Dispute Resolution and Binding Arbitration.
(a) YOU AND PORTOLITE ARE AGREEING TO GIVE UP ANY RIGHTS TO LITIGATE CLAIMS IN A COURT OR BEFORE A JURY, OR TO PARTICIPATE IN A CLASS ACTION OR REPRESENTATIVE ACTION WITH RESPECT TO A CLAIM. OTHER RIGHTS THAT YOU WOULD HAVE IF YOU WENT TO COURT MAY ALSO BE UNAVAILABLE OR MAY BE LIMITED IN ARBITRATION.
ANY CLAIM, DISPUTE OR CONTROVERSY (WHETHER IN CONTRACT, TORT OR OTHERWISE, WHETHER PRE-EXISTING, PRESENT OR FUTURE, AND INCLUDING STATUTORY, CONSUMER PROTECTION, COMMON LAW, INTENTIONAL TORT, INJUNCTIVE AND EQUITABLE CLAIMS) BETWEEN YOU AND US ARISING FROM OR RELATING IN ANY WAY TO YOUR PURCHASE OF PRODUCTS THROUGH THE SITE, WILL BE RESOLVED EXCLUSIVELY AND FINALLY BY BINDING ARBITRATION.
(b) The arbitration will be by a single arbitrator administered by the American Arbitration Association (“AAA”) in accordance with the Consumer Arbitration Rules (the “AAA Rules”) then in effect, except as modified by this Section 12. (The AAA Rules are available at adr.org or by calling the AAA at 1-800-778-7879.) The Federal Arbitration Act will govern the interpretation and enforcement of this section.
The arbitrator will have exclusive authority to resolve any dispute relating to arbitrability or enforceability of this arbitration provision, including any unconscionability challenge or any other challenge that the arbitration provision or the Agreement is void, voidable or otherwise invalid. The arbitrator will be empowered to grant whatever relief would be available in court under law or in equity. Any award of the arbitrator will be final and binding on you and us and may be entered as a judgment in any court of competent jurisdiction. The arbitrator will have discretion to include the payment of your or our arbitration costs and legal fees in any award.
(c) You may elect to pursue your claim in small claims court rather than arbitration if you provide us with written notice of your intention do so within sixty (60) days after your purchase. The arbitration or small claims court proceeding will be limited solely to your individual dispute or controversy.
(d) If any provision of this arbitration agreement is found unenforceable, the unenforceable provision will be severed and the remaining arbitration terms will be enforced.
(e) You agree to an arbitration on an individual basis. In any dispute, NEITHER YOU NOR PORTOLITE WILL BE ENTITLED TO JOIN OR CONSOLIDATE CLAIMS BY OR AGAINST OTHER CUSTOMERS IN COURT OR IN ARBITRATION OR OTHERWISE PARTICIPATE IN ANY CLAIM AS A CLASS REPRESENTATIVE, CLASS MEMBER OR IN A PRIVATE ATTORNEY GENERAL CAPACITY. The arbitral tribunal may not consolidate more than one person's claims, and may not otherwise preside over any form of a representative or class proceeding. The arbitral tribunal has no power to consider the enforceability of this class arbitration waiver and any challenge to the class arbitration waiver may only be raised in a court of competent jurisdiction.
12. Assignment. You will not assign any of your rights or delegate any of your obligations under these Terms of Sale without our prior written consent. Any purported assignment or delegation in violation of this Section 13 is null and void. No assignment or delegation relieves you of any of your obligations under these Terms of Sale.
13. No Waivers. The failure by us to enforce any right or provision of these Terms of Sale will not constitute a waiver of future enforcement of that right or provision. The waiver of any right or provision will be effective only if in writing and signed by an authorized representative of Portolite.
14. No Third Party Beneficiaries. These Terms of Sale do not and are not intended to confer any rights or remedies upon any person other than you.
15. Notices.
(a) To You. We may provide any notice to you under these Terms of Sale by: (i) sending a message to the email address you provide or (ii) by posting to the Site. Notices sent by email will be effective when we send the email and notices we provide by posting will be effective upon posting. It is your responsibility to keep your email address current.
(b) To Us. To give us notice under these Terms of Sale, you must contact us by personal delivery, overnight courier or registered or certified mail to Portolite Pitching Mounds, LLC at 265 River St N, Delano, MN 55328. We may update this address for notices to us by posting a notice on the Site. Notices provided by personal delivery will be effective immediately. Notices provided by overnight courier will be effective one business day after they are sent. Notices provided by registered or certified mail will be effective three business days after they are sent.
16. Severability. If any provision of these Terms of Sale is invalid, illegal, void or unenforceable, then that provision will be deemed severed from these Terms of Sale and will not affect the validity or enforceability of the remaining provisions of these Terms of Sale.
17. Entire Agreement. Our order confirmation and these Terms of Sale will be deemed the final and integrated agreement between you and us on the matters contained in these Terms of Sale.