Bat Club USA Member Agreement
In consideration of the mutual promises herein contained, Peak Performance Bat Club, LLC (hereinafter “BCUSA”) agrees to lease and deliver to Member at the address identified by Member in its order, and Member agrees to lease, receive and pay for the product(s) of the kind and in the quantities and under the terms and conditions specifically set forth below.
BCUSA agrees to lease and deliver to Member and Member agrees to lease and receive from BCUSA the products covered by this Agreement in the quantities ordered by Member. BCUSA operates a bat leasing company wherein Members have the right to select up to two (2), unused bats in any given twelve (12) month period. Each bat will remain in the Member’s possession for a period not to exceed six (6) months.
- Product Guaranty
BCUSA guarantees that all bats leased pursuant to this Agreement are the sole property of BCUSA and that all bats are new products that have not been used. All bats leased by BCUSA will be coded uniquely such that each will be identifiable as property belonging to BCUSA. Member shall not tamper with the unique codes located on BCUSA’s bats.
Product Specifications in BCUSA’s inventory:
Baseball Bat: 25-34 inches, 13-31 ounces
Softball Slow Pitch Bat: 25-34 inches, 13-31 ounces
Softball Fast Pitch Bat: 25-34 inches, 13-31 ounces
- BCUSA Obligations
BCUSA shall promptly process and acknowledge Member orders that are accepted by the Company and processed as required by BCUSA. BCUSA shall use its best efforts to immediately notify, as soon as practicable, Member of any rejection or delay in filling or delivering Member’s order(s).
BCUSA is a company independent from the manufacturer of all bats in its inventory and is not legally affiliated with the manufacturer of any bats. BCUSA has the exclusive right to direct and control the business operation of leasing and/or selling all bats in its inventory, including the establishment of prices at which the products will be leased and/orsold. Nothing herein contained shall be construed to place the parties in the relationship of partners or joint venturers or agents and Member shall have no power to obligate or bind BCUSA in any manner whatsoever.
- Product Use
All bats leased to all Members by BCUSA pursuant to the terms as stated herein shall be exclusively used for the purposes for which bats are intended i.e. for the recreational and/or competitive use in hitting a baseball or softball for a baseball or softball game or in preparation for a baseball or softball game. Member shall not: 1) sell a bat leased by BCUSA to Member; 2) market or sell any other competing recreational brand(s) and 3) use any bat leased by BCUSA for any manner other than that which is expressly stated herein.
The price of the fees and bats covered by this Agreement shall be solely determined by BCUSA. Member agrees to pay all fees and charges assessed by BCUSA pursuant to the terms stated herein as follows:
- Membership Fees: the annual membership fee paid by Member will be determined by the number of bats member agrees to contract for during the contract term. The annual membership fee will be charged upon execution of this Agreement and when renewed on each anniversary date thereafter. A late fee of $10 will be assessed by BCUSA to any payment(s) not timely received by BCUSA.
- Monthly Fees: Monthly membership fees will be determined by the quality of bat chosen by member. Monthly fees will be paid each month, in equal installments, by the Member during the Agreement term and during all months in all renewal periods applicable hereunder. All monthly fees will be automatically charged by BCUSA to Member’s credit card held on file. In agreeing to the terms as stated herein Member agrees to be charged and to pay the monthly fees. Member expressly authorizes BCUSA to automatically charge all monthly membership fees to the credit card held on file. A late fee of $10 a month will be assessed by BCUSA for any payment(s) not timely received by BCUSA. Member shall also be responsible for payment of sales tax on an amount equal to the total of twelve months of monthly fees for the bat selected by Member, the amount of sales tax to be determined based upon the state from which Member has ordered a bat.
By agreeing the terms stated herein and by becoming a member of BCUSA, member agrees to be a Member of BCUSA for a period of twelve (12) months. On the calendar day before the first anniversary date of this Agreement, this Agreement shall automatically renew for a successive twelve (12) month term. Every anniversary date thereafter, this Agreement shall continue to automatically renew for successive terms unless this Agreement is terminated as provided herein.
Time is of the essence as to the terms and provisions of this Agreement.
- Bat Lease
Member agrees to perform all obligations provided herein in a prompt and diligent manner. Member shall have the right to choose one of the following options in selecting a bat during the Agreement term:
a). If Member chooses to lease one (1) bat in a twelve (12) month period, Member shall have the right to retain a selected bat for a period of twelve (12) months from the date of delivery of the bat.
- b) If Member chooses to lease more than two (2) bats in a twelve (12) month period, Member will receive the first bat upon requesting same. Thereafter, Member will receive the additional bats on the date agreed upon (hereinafter the “additional bat delivery date”), when executing this agreement. BCUSA will deliver the additional bat(s) on the additional bat delivery date. Upon Member’s receipt of the additional bat, Member shall return the first bat within seven (7) calendar days of the second bat delivery date. BCUSA shall provide a shipping label for Member’s return of all bats. If Member fails to return any additional bat(s) as provided herein, Member will be automatically charged the full retail price of the bat(s). If Member fails to return the bat(s) in the shipping accommodation provided by BCUSA, Member assumes all liability for proper delivery of the bat(s) to BCUSA.
- At all times during the Agreement Term, Member shall have the right to purchase any bat in BCUSA’s inventory for the full retail value.
- Return Policy
Member agrees that by accepting the bat, Member accepts the bat as being satisfactory and consonant with full performance hereunder. If the condition of the bat is not satisfactory upon Member’s receipt thereof, Member agrees to immediately give detailed notice of the bat’s condition in writing. Failure to do so will be deemed a breach by Member. By agreeing to the terms as stated herein and in accepting the first bat delivered pursuant to this agreement, Members agrees to abide by all terms as stated herein with regard to acceptance and return of all bats leased to Member by BCUSA. Should Member return a bat prior to expiration of the agreement term, Member shall remain liable for payment of the balance of the membership fee for the remainder of the Agreement term. Nevertheless, should Member return a pat prior to six months after receipt of the bat, the remainder of the amount owed will be added onto the balance that Member will be obligated to pay for the second bat and said amount will be prorated so that the remainder owed will be paid in monthly equal installments in addition to the monthly fee for the second bat received in the agreement term.
This Agreement may be terminated in any of the following ways:
- Member shall have the right to voluntarily terminate this agreement by paying an early termination fee. Should Member choose to terminate this agreement and pay an early termination fee, Member shall return all bats in its possession within three (3) calendar days of notifying BCUSA that Member has decided to terminate this Agreement. The early termination fee shall be the greater of twenty dollars ($20) a month for each month left on the agreement term or one hundred dollars ($100.00). Should Member fail to return all bats in its possession upon termination of this agreement, by either means provided herein, Member will be automatically charged the full retail price of all bats that remain in Member’s possession.
- BCUSA reserves the right to terminate this Agreement without any recourse by Member:
(i) if Member makes any material false or misleading statement or representation which induces BCUSA to enter into this Agreement, or which is relevant to the relationship between the parties hereto;
(ii) if Member becomes insolvent or commits an act of bankruptcy or takes advantage of any law for the benefit of debtors or Member's creditors, or if a receiver is appointed for Member;
(iii) if Member fails to pay in a timely manner any sums when due hereunder;
(iv) if Member defaults in any of its obligations under this Contract;
(v) if Member is declared incompetent to manage his property or affairs by any court,;
(vi) if Member dies;
(vii) if Member engages in fraud or criminal misconduct relevant to this Agreement;
(viii) if Member fails to receive the minimum quantity of bat(s) required by the terms contained herein; or
(ix) upon assignment of the Assignment by Member
- Minimum Age
Member represents and warrants that it has full legal and regulatory authority to enter into this Agreement and to consummate the transactions contemplated by this Agreement and that this Agreement is not in conflict with any other agreement to which it is a party or may be bound. Member further represents that the individual executing this Agreement has full power and authority to do so. In agreeing to the terms of this agreement, Member certifies that Member is eighteen (18) or older in age and Member certifies that it has the authority to utilize the credit card that Member has registered on file with BCUSA.
If Member orders two (2) or more bats and requests simultaneous delivery of said bats, BCUSA has the right, to determine in its sole discretion, whether said simultaneous delivery shall occur and whether an additional security deposit shall be required. In the event that BCUSA determines that an additional security deposit should be assessed, the amount of said security deposit shall be determined exclusively by BCUSA.
- Damaged/lost/stolen product(s)
Member shall return all bat(s) leased by BCUSA in the same or as good condition as the bat(s) was in when received by Member, subject to normal wear and tear as determined by BCUSA. Measures shall be taken by Member in order to prevent avoidable damage to all bats leased by BCUSA to Member and to ensure that manufacturer warranties are not voided. Member guarantees BCUSA against any loss or damage due to any damages to a bat while in Member’s possession. BCUSA shall retain all rights to the manufacturer’s warranty for any given bat in its inventory. If a bat is damaged while in Member’s possession and said damage is not covered by the manufacturer’s warranty, Member will be charged the full retail value of the bat calculated at the time that the bat was originally delivered to Member. If bat sustains damages while in Member’s possession, Member shall deliver the bat to BCUSA immediately. Member shall never have the right to claim a manufacturer’s warranty on any bat leased by BCUSA. If a bat is lost or stolen while in Member’s possession, BCUSA will charge Member for the full retail value of the bat, the value to be determined as of the date that the bat was delivered to Member.
Member shall defend, indemnify, and hold BCUSA, its officers, directors, shareholders, partners, employees, agents or servants harmless from and against any and all claims for damages involving personal injury, wrongful death or property damages arising out of all bats leased by BCUSA to Member. Additionally, Member agrees to indemnify, defend and hold BCUSA harmless from any and all actions, causes of actions, claims, demands, liabilities, losses, damages or expenses including attorney’s fees (incurred prior to the institution of litigation to include trial and appellate proceedings) which shall or may arise or occur at any time by reason of or as a consequence of any death, personal injury, or property damage caused in any way related to all bat(s) leased by BCUSA to Member. This indemnification provision is intended to provide indemnification and defense any time a bat leased by BCUSA to Member causes or contributes or is alleged to have caused or contributed to an incident which results in loss, injury or damages to another even when the negligence occurs without Member’s participation or knowledge.
- Failure to Perform
Any delays in or failure of performance of either party hereto shall not constitute a default hereunder or give rise to any claims of damages if and to the extent that such delay or failure is caused by occurrences including, but not limited to, acts of God or the public enemy; expropriation or confiscation of facilities; compliance with any order or request of any governmental authority; acts of war; rebellion or sabotage or damage resulting therefrom; embargoes or other import or export restrictions; fires, floods, explosions, accidents, or breakdowns; riots; strikes or other concerted acts of workers, whether direct or indirect; or any other causes whether or not of the same class or kind as those specifically above named which are not within the control of the party affected and which, by the exercise of reasonable diligence, said party is unable to prevent or provide against. A party whose performance is affected by any of the causes set forth in the preceding sentence shall give prompt written notice thereof to the other party. BCUSA shall be under no obligation to deliver any bats at any time when in BCUSA’s sole judgment it has reason to believe that the making of such delivery would be likely to cause a default by Member. Nothing in this paragraph shall excuse Member from making a payment when due for deliveries made under the Contract.
- Excess Quantities
In the event BCUSA should actually deliver to Member and Member should actually accept and receive during the term hereof quantities of bat(s) in excess of the quantity ordered by Member, Member agrees to pay for said bat(s) at the prices and in the method herein provided. However, nothing in this paragraph shall be deemed to authorize the purchase of quantities otherwise unauthorized under monthly or annual quantity limitations.
- Quality, Specification or Name of Product
BCUSA shall have the right at its sole discretion at any time during the life of this Agreement to change, alter, amend or eliminate any of the brands of bat(s) covered by this Agreement. BCUSA may also, in its sole discretion, either (a) change or alter the quality, grade or specifications of any bat(s) covered by this Agreement or (b) discontinue the availability of any such bat(s). Any such change or discontinuation shall not affect the minimum purchase requirements, monthly fee obligation or annual fee obligation set forth herein.
All written notices required or permitted to be given by this Agreement shall be deemed to be duly given if delivered via email at firstname.lastname@example.org or by U.S. mail to BCUSA at 12350 SW 132 Ct, Suite 205, Miami, Florida 33186, or to such other address as may be furnished by BCUSA in accordance with the provisions of this paragraph. The date of mailing shall be deemed the date of giving such notice.
- Express Warranties
BCUSA warrants that the bat(s) supplied hereunder will conform to the promises and affirmations of fact made in BCUSA's current literature and printed advertisements, if any, related specifically to such product(s); and that the bat(s) supplied hereunder meet such specifications as have been expressly made a part of this Agreement. THE FOREGOING WARRANTIES ARE EXCLUSIVE AND ARE IN LIEU OF ALL OTHER WARRANTIES, WHETHER WRITTEN, ORAL OR IMPLIED. THE WARRANTY OF MERCHANTABILITY, IN OTHER RESPECTS THAN EXPRESSLY SET FORTH HEREIN, AND WARRANTY OF FITNESS FOR PARTICULAR PURPOSE, IN OTHER RESPECTS THAN EXPRESSLY SET FORTH HEREIN, ARE EXPRESSLY EXCLUDED AND DISCLAIMED.
- Entire Agreement
This writing is intended by the parties to be a final, complete and exclusive statement of their Agreement about the matters covered herein. THERE ARE NO ORAL UNDERSTANDINGS, REPRESENTATIONS OR WARRANTIES AFFECTING IT. No amendment or alterations to this Agreement shall have any effect unless made in writing and signed by an authorized representative of BCUSA and by Member.
This Agreement or any modification thereof shall not be binding upon BCUSA until signed on its behalf by an authorized representative of BCUSA. Commencement of performance hereunder prior to signing as above stipulated in no case shall be construed as a waiver by Seller of this requirement.
- Attorney’s Fees
It is hereby agreed to and understood by the parties to this Agreement that if BCUSA obtains a judgment against Member for breach of any provisions hereof, BCUSA's damages shall include all attorney's fees and other litigation expenses incurred by BCUSA in obtaining such judgment. Furthermore, to the extent that BCUSA must take any steps to exercise execution of any such judgment, BCUSA’s reasonable attorney’s fees and the legal and other expenses it incurs shall be chargeable to the Member.
- Acceptance/Assignment/Binding Effect
This Agreement shall be contingent upon BCUSA’s acceptance of Member. This Agreement shall not be assignable by any party without the prior writing consent of the other parties. Subject to the forgoing this Agreement shall inure to the benefit of and shall be binding upon each of the parties hereto and the respective heirs, personal representative, administrator, successors, and assigns, and the parties hereby agree for themselves and their heirs, personal representatives, administrators, successors, and assigns to excuse any instruments and to perform any acts which may be necessary or helpful to carry out the purposes of this Agreement.
- Choice of Law
The validity, interpretation and enforcement of this Agreement and all other instruments and documents executed in connection with this transaction shall be governed by the laws of the State of Florida, excluding those laws relating to the resolution of conflicts between laws of different jurisdiction. Both BCUSA and Member submit themselves to the sole jurisdiction and venue of any Federal or Florida Court situated in Miami-Dade County, Florida, United States of America.
The section and subsection headings and captions contained in this Agreement are for reference purposes only and shall not affect in any way the meaning or interpretation of this Agreement. Whenever the context shall require, all words herein in the masculine gender shall be demand to include the feminine or neutral gender, all singular words shall include the plural, and all plural words shall include the singular. The parties acknowledge and agree that each party has received this Agreement and that any rule of contraction resolving and ambiguities against the drafting party shall not be employed in the interpretation of this Agreement or any amendment, exhibit or schedule hereto.
Any provision of this Agreement shall be determinate by a court of competent jurisdiction to be invalid, illegal or unforeseeable, such determination shall not effect or impair the validity, legality, or enforceability of the remaining provisions contained herein.
- Third Party Beneficiaries
Nothing expressed or implied in this Agreement is intended, or shall be construed, to confer upon or give any person, firm or corporation other the parties hereto, their subsidiaries and their personal representative, successor, administrator or assign, any rights, remains, obligations or liabilities under or by reason of this Agreement, or result in their being deemed a third party beneficiary of this Agreement.
Peak Performance Bat Club, LLC
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