TERMS OF USE

Last Modified:  January 27, 2022

PLEASE READ THESE TERMS OF USE CAREFULLY BEFORE USING THIS SITE. BY USING THIS SITE, YOU ACCEPT AND AGREE TO BE BOUND AND ABIDE BY THESE TERMS OF USE.

YOU MAY NOT USE THIS SITE IF YOU (A) DO NOT AGREE TO THESE TERMS OF USE, (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 SITE OR ANY OF THIS SITE’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. 

1.              Acceptance of the Terms of Use

(a)            These Terms of Use are entered into by and between you and Portolite Pitching Mounds LLC (“Portolite,” “us,”, “we” or “our”).  The following terms and conditions, together with any documents they expressly incorporate by reference (collectively, “Terms of Use”), govern your access to and use of www.portolite.com, including any content, functionality, and services offered on or through www.portolite.com (the “Site”).

2.              Changes to the Terms of Use

(a)            We may revise and update these Terms of Use from time to time in our sole discretion.  All changes are effective immediately when we post them, and apply to all access to and use of the Site thereafter.  However, any changes to the dispute resolution provisions set out in Governing Law and Jurisdiction will not apply to any disputes for which the parties have actual notice on or before the date the change is posted on the Site.

(b)            Your continued use of the Site following the posting of revised Terms of Use means that you accept and agree to the changes.  You are expected to check this page each time you access this Site so you are aware of any changes, as they are binding on you.

3.              Accessing the Site and Account Security

(a)            We reserve the right to withdraw or amend this Site, and any service or material we provide on the Site, in our sole discretion without notice.  We will not be liable if for any reason all or any part of the Site is unavailable at any time or for any period.  From time to time, we may restrict access to some parts of the Site, or the entire Site, to users, including registered users.

(b)            You are responsible for both (i) making all arrangements necessary for you to have access to the Site; and (ii) ensuring that all persons who access the Site through your internet connection are aware of these Terms of Use and comply with them.

(c)            To access the Site or some of the resources it offers, you may be asked to provide certain registration details or other information.  It is a condition of your use of the Site that all the information you provide on the Site is correct, current, and complete.  You agree that all information you provide to register with this Site or otherwise, including, but not limited to, through the use of any interactive features on the Site, is governed by our Privacy Policy, and you consent to all actions we take with respect to your information consistent with our Privacy Policy.

(d)            If you choose, or are provided with, a user name, password, or any other piece of information as part of our security procedures, you must treat such information as confidential, and you must not disclose it to any other person or entity.  You also acknowledge that your account is personal to you and agree not to provide any other person with access to this Site or portions of it using your user name, password, or other security information.  You agree to notify us immediately of any unauthorized access to or use of your user name or password or any other breach of security.  You also agree to ensure that you exit from your account at the end of each session.  You should use particular caution when accessing your account from a public or shared computer so that others are not able to view or record your password or other personal information.

(e)            We have the right to disable any user name, password, or other identifier, whether chosen by you or provided by us, at any time in our sole discretion for any or no reason, including if, in our opinion, you have violated any provision of these Terms of Use.

4.              Intellectual Property Rights.

(a)            The Site and its entire contents, features, and functionality (including but not limited to all information, software, text, displays, images, video, and audio, and the design, selection, and arrangement thereof) are owned by Portolite, its licensors, or other providers of such material and are protected by United States and international copyright, trademark, patent, trade secret, and other intellectual property or proprietary rights laws.

(b)            Subject to the limitation and restrictions stated herein, you may access, view, play, print and download content, including audio and video content, for personal and non-commercial use only, or to place an order with Portolite for the purchase of Portolite products.  All other uses, including, but not limited to the reproduction, distribution, display or transmission of the Content is strictly prohibited, unless authorized in writing by Portolite.

(c)            If you print, copy, modify, download, or otherwise use or provide any other person with access to any part of the Site in breach of the Terms of Use, your right to use the Site will stop immediately and you must, at our option, return or destroy any copies of the materials you have made.  No right, title, or interest in or to the Site or any content on the Site is transferred to you, and all rights not expressly granted are reserved by Portolite.  Any use of the Site not expressly permitted by these Terms of Use is a breach of these Terms of Use and may violate copyright, trademark, and other laws.

5.              Trademarks

(a)            Portolite’s name, the terms “Portolite”, Portolite’s logo, and all related names, logos, product and service names, designs, and slogans are trademarks of Portolite or its affiliates or licensors.  You must not use such marks without the prior written permission of Portolite.  All other names, logos, product and service names, designs, and slogans on this Site are the trademarks of their respective owners.

6.              Prohibited Uses

(a)            You may use the Site only for lawful purposes and in accordance with these Terms of Use.  You agree not to:

·               Use the Site other than for its intended purposes, in any unlawful manner or in any manner that could interfere with, disrupt, negatively affect, or inhibit other users from fully enjoying the Site;

·               Send unsolicited or unauthorized advertising, solicitations, promotional materials, spam, junk mail, chain letters and pyramid schemes, or harvest or collect email addresses or other contact information of other users from the Site for the purposes of sending spam;

·               Use any robot, spider, crawler, scraper or other automated means or interface not provided by us to access the Site or to extract data;

·               Reverse engineer any aspect of the Site or do anything that might discover source code or bypass or circumvent measures employed to prevent or limit access to any area, content or code of the Site (except as otherwise expressly permitted by law);

·               Solicit personal information from anyone under 18 or solicit passwords or personally identifying information for commercial or unlawful purposes;

·               Use or attempt to use another’s account without authorization from Portolite;

·               Attempt to circumvent any content filtering techniques we employ or access any service or area of the Sites that you are not authorized to access;

·               Engage in any harassing, intimidating, predatory or stalking conduct;

·               Develop or use any third-party applications that interact with User Content or our Site without our prior written consent;

·               Use the Site in a manner that could interfere with or damage, disable, overburden or impair the operation of the Site or introduce to the Site or our users any viruses, malware, corrupted data or other harmful, disruptive or destructive files or code; or

·               “Frame” our Site or otherwise make it look like you have a relationship with us or that we have endorsed you for any purpose.

7.              User Contributions

(a)            The Site may contain blogs, message boards, chat rooms, personal web pages or profiles, forums, bulletin boards, and other interactive features (collectively, “Interactive Services”) that allow users to post, submit, publish, display, or transmit to other users or other persons (hereinafter, “post”) content or materials (collectively, “User Contributions”) on or through the Site.

(b)            Any User Contribution you post to the site will be considered non-confidential and non-proprietary.  By providing any User Contribution on the Site, you grant us and our affiliates and service providers, and each of their and our respective licensees, successors, and assigns the right to use, reproduce, modify, perform, display, distribute, and otherwise disclose to third parties any such material for any purpose.

(c)            You may not post User Contributions which Portolite in its sole discretion determines to be abusive, harassing, threatening, defamatory, obscene, an impersonation of others, fraudulent, deceptive, misleading, in violation of a copyright, trademark or other intellectual property right of another, invasive of privacy or publicity rights, in violation of any other right of Portolite or another party, illegal, or otherwise objectionable to Portolite.  You may not upload commercial content on the Site or use the Site to solicit others to join or become members of any other commercial online service or other organization.

(d)            You represent and warrant that (i) you own or control all rights in and to the User Contributions and have the right to grant the license granted above to us and our affiliates and service providers, and each of their and our respective licensees, successors, and assigns; and (ii) all of your User Contributions do and will comply with these Terms of Use.

(e)            You understand and acknowledge that you are responsible for any User Contributions you submit or contribute, and you, not Portolite, have full responsibility for such content, including its legality, reliability, accuracy, and appropriateness.  We are not responsible or liable to any third party for the content or accuracy of any User Contributions posted by you or any other user of the Site.

8.              Monitoring and Enforcement; Termination

(a)            We have the right to (i) remove or refuse to post any User Contributions for any or no reason in our sole discretion; (ii) take any action with respect to any User Contribution that we deem necessary or appropriate in our sole discretion; (iii) disclose your identity or other information about you to any third party who claims that material posted by you violates their rights, including their intellectual property rights or their right to privacy; (iv) take appropriate legal action, including without limitation, referral to law enforcement, for any illegal or unauthorized use of the Site; and (v) terminate or suspend your access to all or part of the Site for any or no reason, including without limitation, any violation of these Terms of Use.

(b)            Without limiting the foregoing, we have the right to cooperate fully with any law enforcement authorities or court order requesting or directing us to disclose the identity or other information of anyone posting any materials on or through the Site. YOU WAIVE AND HOLD HARMLESS PORTOLITE AND ITS AFFILIATES, LICENSEES, AND SERVICE PROVIDERS FROM ANY CLAIMS RESULTING FROM ANY ACTION TAKEN BY ANY OF THE FOREGOING PARTIES DURING, OR TAKEN AS A CONSEQUENCE OF, INVESTIGATIONS BY EITHER SUCH PARTIES OR LAW ENFORCEMENT AUTHORITIES.

(c)            However, we do not undertake to review material before it is posted on the Site, and cannot ensure prompt removal of objectionable material after it has been posted.  Accordingly, we assume no liability for any action or inaction regarding transmissions, communications, or content provided by any user or third party.  We have no liability or responsibility to anyone for performance or nonperformance of the activities described in this section.

9.              Reliance on Information Posted

(a)            The information presented on or through the Site is made available solely for general information purposes.  We do not warrant the accuracy, completeness, or usefulness of this information.  Any reliance you place on such information is strictly at your own risk.  We disclaim all liability and responsibility arising from any reliance placed on such materials by you or any other visitor to the Site, or by anyone who may be informed of any of its contents.

(b)            This Site may include content provided by third parties, including materials provided by other users, bloggers, and third-party licensors, syndicators, aggregators, and/or reporting services.  All statements and/or opinions expressed in these materials, and all articles and responses to questions and other content, other than the content provided by Portolite, are solely the opinions and the responsibility of the person or entity providing those materials.  These materials do not necessarily reflect the opinion of Portolite.  We are not responsible, or liable to you or any third party, for the content or accuracy of any materials provided by any third parties.

10.           Changes to the Site

(a)            We may update the content on this Site from time to time, but its content is not necessarily complete or up-to-date.  Any of the material on the Site may be out of date at any given time, and we are under no obligation to update such material.

11.           Information About You and Your Visits to the Site

(a)            All information we collect on this Site is subject to our Privacy Policy.  By using the Site, you consent to all actions taken by us with respect to your information in compliance with the Privacy Policy.

12.           Online Purchases and Other Terms and Conditions

(a)            All purchases through our Site or other transactions for the sale of goods formed through the Site, or resulting from visits made by you, are governed by our Terms of Sale, which are hereby incorporated into these Terms of Use.

13.           Linking to the Site and Social Media Features

(a)            You may link to our homepage, provided you do so in a way that is fair and legal and does not damage our reputation or take advantage of it, but you must not establish a link in such a way as to suggest any form of association, approval, or endorsement on our part without our express written consent.

(b)            This Site may provide certain social media features that enable you to:

·               Link from your own or certain third-party Sites to certain content on this Site.

·               Send emails or other communications with certain content, or links to certain content, on this Site.

·               Cause limited portions of content on this Site to be displayed or appear to be displayed on your own or certain third-party Sites.

(c)            You may use these features solely as they are provided by us, solely with respect to the content they are displayed with and otherwise in accordance with any additional terms and conditions we provide with respect to such features.  Subject to the foregoing, you must not:

·               Establish a link from any Site that is not owned by you.

·               Cause the Site or portions of it to be displayed on, or appear to be displayed by, any other site, for example, framing, deep linking, or in-line linking.

·               Link to any part of the Site other than the homepage.

·               Otherwise take any action with respect to the materials on this Site that is inconsistent with any other provision of these Terms of Use.

(d)            You agree to cooperate with us in causing any unauthorized framing or linking immediately to stop.  We reserve the right to withdraw linking permission without notice.

(e)            We may disable all or any social media features and any links at any time without notice in our discretion.

14.           Links from the Site

(a)            If the Site contains links to other sites and resources provided by third parties, these links are provided for your convenience only.  This includes links contained in advertisements, including banner advertisements and sponsored links.  We have no control over the contents of those sites or resources, and accept no responsibility for them or for any loss or damage that may arise from your use of them.  If you decide to access any of the third-party Sites linked to this Site, you do so entirely at your own risk and subject to the terms and conditions of use for such Sites.

15.           Disclaimer of Warranties

(a)            You understand that we cannot and do not guarantee or warrant that files available for downloading from the internet or the Site will be free of viruses or other destructive code.  You are responsible for implementing sufficient procedures and checkpoints to satisfy your particular requirements for anti-virus protection and accuracy of data input and output, and for maintaining a means external to our Site for any reconstruction of any lost data.  TO THE FULLEST EXTENT PROVIDED BY LAW, WE WILL NOT BE LIABLE FOR ANY LOSS OR DAMAGE CAUSED BY A DISTRIBUTED DENIAL-OF-SERVICE ATTACK, VIRUSES, OR OTHER TECHNOLOGICALLY HARMFUL MATERIAL THAT MAY INFECT YOUR COMPUTER EQUIPMENT, COMPUTER PROGRAMS, DATA, OR OTHER PROPRIETARY MATERIAL DUE TO YOUR USE OF THE SITE OR ANY SERVICES OR ITEMS OBTAINED THROUGH THE SITE OR TO YOUR DOWNLOADING OF ANY MATERIAL POSTED ON IT, OR ON ANY SITE LINKED TO IT.

(b)            YOUR USE OF THE SITE, ITS CONTENT, AND ANY SERVICES OR ITEMS OBTAINED THROUGH THE SITE IS AT YOUR OWN RISK. THE SITE, ITS CONTENT, AND ANY SERVICES OR ITEMS OBTAINED THROUGH THE SITE ARE PROVIDED ON AN “AS IS” AND “AS AVAILABLE” BASIS, WITHOUT ANY WARRANTIES OF ANY KIND, EITHER EXPRESS OR IMPLIED. NEITHER PORTOLITE NOR ANY PERSON ASSOCIATED WITH PORTOLITE MAKES ANY WARRANTY OR REPRESENTATION WITH RESPECT TO THE COMPLETENESS, SECURITY, RELIABILITY, QUALITY, ACCURACY, OR AVAILABILITY OF THE SITE. WITHOUT LIMITING THE FOREGOING, NEITHER PORTOLITE NOR ANYONE ASSOCIATED WITH PORTOLITE REPRESENTS OR WARRANTS THAT THE SITE, ITS CONTENT, OR ANY SERVICES OR ITEMS OBTAINED THROUGH THE SITE WILL BE ACCURATE, RELIABLE, ERROR-FREE, OR UNINTERRUPTED, THAT DEFECTS WILL BE CORRECTED, THAT OUR SITE OR THE SERVER THAT MAKES IT AVAILABLE ARE FREE OF VIRUSES OR OTHER HARMFUL COMPONENTS, OR THAT THE SITE OR ANY SERVICES OR ITEMS OBTAINED THROUGH THE SITE WILL OTHERWISE MEET YOUR NEEDS OR EXPECTATIONS.

(c)            TO THE FULLEST EXTENT PROVIDED BY LAW, PORTOLITE HEREBY DISCLAIMS ALL WARRANTIES OF ANY KIND, WHETHER EXPRESS OR IMPLIED, STATUTORY, OR OTHERWISE, INCLUDING BUT NOT LIMITED TO ANY WARRANTIES OF MERCHANTABILITY, NON-INFRINGEMENT, AND FITNESS FOR PARTICULAR PURPOSE.

(d)            THE FOREGOING DOES NOT AFFECT ANY WARRANTIES THAT CANNOT BE EXCLUDED OR LIMITED UNDER APPLICABLE LAW.

16.           Limitation on Liability

(a)            TO THE FULLEST EXTENT PROVIDED BY LAW, IN NO EVENT WILL THE PORTOLITE, ITS AFFILIATES, OR THEIR LICENSORS, SERVICE PROVIDERS, EMPLOYEES, AGENTS, OFFICERS, OR DIRECTORS BE LIABLE FOR DAMAGES OF ANY KIND, UNDER ANY LEGAL THEORY, ARISING OUT OF OR IN CONNECTION WITH YOUR USE, OR INABILITY TO USE, THE SITE, ANY SITES LINKED TO IT, ANY CONTENT ON THE SITE OR SUCH OTHER SITES, INCLUDING ANY DIRECT, INDIRECT, SPECIAL, INCIDENTAL, CONSEQUENTIAL, OR PUNITIVE DAMAGES, INCLUDING BUT NOT LIMITED TO, PERSONAL INJURY, PAIN AND SUFFERING, EMOTIONAL DISTRESS, LOSS OF REVENUE, LOSS OF PROFITS, LOSS OF BUSINESS OR ANTICIPATED SAVINGS, LOSS OF USE, LOSS OF GOODWILL, LOSS OF DATA, AND WHETHER CAUSED BY TORT (INCLUDING NEGLIGENCE), BREACH OF CONTRACT, OR OTHERWISE, EVEN IF FORESEEABLE.

(b)            The limitation of liability set out above does not apply to liability resulting from our gross negligence or willful misconduct.

THE FOREGOING DOES NOT AFFECT ANY LIABILITY THAT CANNOT BE EXCLUDED OR LIMITED UNDER APPLICABLE LAW.

(a)            You agree to defend, indemnify, and hold harmless Portolite, its affiliates, licensors, and service providers, and its and their respective officers, directors, employees, contractors, agents, licensors, suppliers, successors, and assigns from and against any claims, liabilities, damages, judgments, awards, losses, costs, expenses, or fees (including reasonable attorneys’ fees) arising out of or relating to your violation of these Terms of Use or your use of the Site, including, but not limited to, your User Contributions, any use of the Site’s content, services, and products other than as expressly authorized in these Terms of Use, or your use of any information obtained from the Site.

18.           Governing Law and Jurisdiction

(a)            All matters arising out of or relating to these Terms of Use 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.

(b)            Any legal suit, action, or proceeding arising out of, or related to, these Terms of Use or the Site 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.

19.           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 YOUR USE OF THE SITE AND THESE TERMS OF USE, 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.

(c)            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.

(d)            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.

(e)            If any provision of this arbitration agreement is found unenforceable, the unenforceable provision will be severed and the remaining arbitration terms will be enforced.

(f)             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.

20.           Waiver and Severability

(a)            No waiver by Portolite of any term or condition set out in these Terms of Use shall be deemed a further or continuing waiver of such term or condition or a waiver of any other term or condition, and any failure of Portolite to assert a right or provision under these Terms of Use shall not constitute a waiver of such right or provision.

(b)            If any provision of these Terms of Use is held by a court or other tribunal of competent jurisdiction to be invalid, illegal, or unenforceable for any reason, such provision shall be eliminated or limited to the minimum extent such that the remaining provisions of the Terms of Use will continue in full force and effect.

21.           Entire Agreement

The Terms of Use, our Privacy Policy and the Terms of Sale constitute the sole and entire agreement between you and Portolite Practice Mounds, LLC regarding the Site and supersede all prior and contemporaneous understandings, agreements, representations, and warranties, both written and oral, regarding the Site.