This Member Agreement (“Agreement”) is a contract between Peak Performance Bat Club, LLC (hereinafter “BCUSA”) and any person or entity utilizing the equipment rental services of BCUSA (hereinafter the “Member”).
In consideration of the mutual promises herein contained, 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 and lease an unused bat (hereinafter “Bat(s)” or “Leased Bat(s)”), in any given twelve (12) month period. Each Leased Bat will remain in the Member’s possession for a period not to exceed twelve (12) months. Bats, governed by the terms of this agreement, may be referred to hereinafter as Bat(s), Leased Bat(s), Alternate Bat Selection(s), Terminated Bat Selection(s), Cracked Bat(s), Loaner Bat(s), Used Bat(s), and/or Manufacturer Exchange Bat(s), in the singular as well as the plural. Each of these terms is defined below and shall be collectively referred to hereinafter as “BCUSA Property”.
BCUSA guarantees that all BCUSA Property leased pursuant to this Agreement are the sole property of BCUSA. With the exception of Used Bats (Used Bat Lease Terms defined below), BCUSA guarantees that all BCUSA Property are new products that have not been used. All BCUSA Property 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 Property.
BCUSA shall promptly process and acknowledge Member orders that are accepted by BCUSA 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. BCUSA 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/or sold. Nothing herein contained shall be construed to place the parties in the relationship of partners or joint venturers or agents and no Member shall have any power to obligate or bind BCUSA in any manner whatsoever.
All Bats leased to 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, to anyone, 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.
Members will be identified by BCUSA by the Member’s: name or any part thereof, email address, shipping address, Member Authorized Credit Card, phone number, as well as any other information BCUSA obtains regarding the Member (hereinafter “Member Specific Information”). Unless a Member has prior authorization from BCUSA, a Member may only initiate one BCUSA Membership. Should a Member attempt to create any additional Memberships without the consent of BCUSA, BCUSA reserves the right to identify Members through Member Specific Information and to consolidate all related Membership(s) into a single Membership. At the time of this consolidation, BCUSA reserves the right to use any new Member Specific Information, including but not limited to, any new Member Authorized Credit Card, to collect Delinquent Membership Fees.
Members agree that BCUSA may contact them by text message at the Member phone number provided, regarding outstanding Membership Fees, Late Fees, and Delinquent Membership Fees. Members may not opt out of text message communication regarding fees.
Member ship Fees
The price of the Bats leased by BCUSA and the associated fees covered by this Agreement shall be solely determined by BCUSA. Member agrees to pay all fees and charges assessed by BCUSA, as listed on the BCUSA website, (located at batclubusa.com) at the time the member agrees to receive any Bat and to pay Membership fees, pursuant to the terms stated herein as follows:
Membership Fee Structure:
The annual cost of Membership will be determined by the quality of Bat chosen by the Member, and the prices listed on the BCUSA website, (located at batclubusa.com) at the time the Member agrees to receive and pay for a Bat. Membership fees are apportioned and assessed on a Bi-Annual basis (hereinafter “Bi-annual Fees”) or on a Monthly basis (hereinafter “Monthly Fees”) depending on the Member’s selection. Once a Member chooses either Bi-Annual Fees or Monthly Fees, that fee structure will remain throughout the term of the Agreement. Members may elect to change their selected Fee Structure and the beginning of any Agreement Term or any Renewal Term, subject to the approval of BCUSA.
Bi-annual Fees must be paid by the Member twice a year. Bi-annual Fees will be paid twice during the Agreement Term, with the first payment being due immediately at the time the Member agrees to accept a Bat with all future payments, in equal installments, coming due every six (6) months thereafter. The Member agrees to make all fee payments during the Agreement Term and during renewal periods applicable hereunder. All Bi-Annual fees will be automatically charged by BCUSA to Member’s credit card held on file (hereinafter “Member Authorized Credit Card”). In agreeing to the terms as stated herein the Member agrees to be charged and to pay all Bi-Annual fees. Member expressly authorizes BCUSA to automatically charge all Bi-Annual membership fees to the Member Authorized Credit Card. A late fee of $60 per six (6) month period will be assessed by BCUSA for any Bi-Annual Fee(s) not timely received by BCUSA. BCUSA will attempt to collect past due Bi-Annual Fees each month until they are paid. A late fee will be assessed for each unpaid Bi-Annual Fee, each time the Member does not pay their past due Bi-Annual Fee. Member shall also be responsible for payment of sales tax on an amount equal to the total of all Bi-Annual fees in any twelve-month period. The amount of sales tax will be determined based upon the state from which Member has ordered a Bat. It is the responsibility of the Member to ensure that the Member Authorized Credit Card on file with BCUSA is active throughout the term of this agreement and that the Member Authorized Credit Card has sufficient credit available to satisfy Member’s Bi-Annual obligation for each and every six (6) month period during the Agreement Term as well as any renewal period. The Member agrees that if the Member Authorized Credit Card does not have sufficient available credit at the time BCUSA processes the Bi-Annual Membership fee, payment will be considered late, and a late fee will be charged by BCUSA.
Monthly Fees must be paid by the Member, twelve times each year at the beginning of each month. Monthly fees will be paid in twelve (12) equal installments during the Agreement Term, with the first payment being due immediately, at the time the Member agrees to accept a Bat with all future payments, in equal installments, coming due each month thereafter. The Member agrees to make all fee payments during the Agreement Term and during renewal periods applicable hereunder. All Monthly Fees will be automatically charged by BCUSA to the Member Authorized Credit Card. In agreeing to the terms as stated herein Member agrees to be charged and to pay all monthly fees. Member expressly authorizes BCUSA to automatically charge all monthly Membership Fees to the Member Authorized Credit Card. A late fee of $10 a month will be assessed by BCUSA for any Monthly Fee(s) not timely received by BCUSA. BCUSA will attempt to collect past due Monthly Fees each month until they are paid. A late fee will be assessed for each late Monthly Fee, each time the Member does not pay their past due Monthly Fees. Member shall also be responsible for payment of sales tax on an amount equal to the total of all Monthly Fees in any twelve-month period. The amount of sales tax will be determined based upon the state from which Member has ordered a Bat. It is the responsibility of the Member to ensure that the Member Authorized Credit Card on file with BCUSA is active throughout the term of this agreement and that the Member Authorized Credit Card has sufficient credit available to satisfy Member’s monthly obligation, each and every month, during the Agreement Term as well as any renewal period. The Member agrees that if the Member Authorized Credit Card does not have sufficient available credit at the time BCUSA processes the Monthly Membership fee, payment will be considered late, and a late fee will be charged by BCUSA.
Member agrees to pay all state and local sales tax based upon the state and locality from which Member has ordered a Bat or any other BCUSA Property. Member authorizes BCUSA to collect all sales tax applicable to any BCUSA Property at the beginning of any Agreement Term or Renewal Term. BCUSA reserves the exclusive right to alter the timing of when BCUSA collects applicable sales tax, at any time. This includes but is not limited to: collecting all applicable sales tax at the beginning of any Term; collecting all applicable sales tax in prorated amounts over the course of any Term; and collecting the balance of applicable sales tax due on the remainder of any Term at any time during the Term. The decision of when and at what rate to collect applicable sales tax is reserved exclusively to BCUSA.
The term of this agreement and of each renewal period is twelve (12) months. By agreeing to the terms stated herein and by becoming a Member, Member agrees to maintain its status as a Member of BCUSA in good standing 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. It is the responsibility of the Member to contact BCUSA at the end of any Agreement Term or Renewal Term, if the Member wants to make any changes allowable at the end of these Terms. If the Member does not contact BCUSA at the end of the present Term, the Member agrees to continue to pay the Member’s present Bi-Annual or Monthly Membership Fees until an Alternate Bat Selection is made the Member or all BCUSA Property is returned to BCUSA. Only Membership Fees paid during the first twelve (12) months of any Term will be applied to a Member’s future Bat Buyout. Membership Fees collected after the first twelve (12) months of any Term will not be applied to a Member’s future Bat Buyout. The Used Bat Lease Term is six (6) months (special Used Bat Lease Terms are defined below)
Time is of the essence as to the terms and provisions of this Agreement. Whenever a number of days is set forth in this agreement, those days are calendar-days, which include weekends and all Holidays.
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:
If a Member fails to pay three consecutive monthly Membership Fees or any Bi-annual Membership Fee, BCUSA will consider the membership delinquent. At the time a membership becomes delinquent all: outstanding Membership Fees, Late Fees as well as the remaining Membership Fees due under the current Membership term, will immediately become due (hereinafter “Delinquent Membership Fees”). Delinquent Membership Fees will be considered Liquidated Damages for the purpose of collections or any other legal action taken by BCUSA to recover Delinquent Membership Fees. In addition to the Liquidates Damages, BCUSA always retains ownership of all BCUSA Property, and all available rights to recover BCUSA Property from a Member.
Purchases from BCUSA
If a Member or anyone else (hereinafter “Buyer”) elects to purchase any merchandise from BCUSA, including Bat Buy Outs, those purchases are not subject to ongoing Membership Fees outlined in this agreement. Merchandise purchased from BCUSA becomes the sole property of the Buyer whether they are a Member of BCUSA or not. If a Buyer elects to return a Purchased Bat(s), the Purchased Bat(s) is subject to a restocking fee of 70% of the listed retail price. All other merchandise purchased from the BCUSA website is not returnable and nonrefundable. Buyers may request an exchange of any purchase if and only if the wrong merchandise was received, or the merchandise was already damaged upon receipt by the Buyer. If the merchandise is incorrect or damaged prior to receipt, the Buyer must contact BCUSA immediately to make an exchange. No returns of additional merchandise will be accepted by BCUSA.
By accepting a Leased Bat, Member agrees and accepts that the Leased Bat is satisfactory and consonant with full performance hereunder. If the condition of the Leased Bat is not satisfactory upon Member’s receipt thereof, Member agrees to immediately give BCUSA detailed notice of the Leased Bat’s condition in writing. Failure to do so will be deemed a breach of the Agreement by Member. By agreeing to the terms as stated herein and in accepting the first Leased Bat delivered pursuant to this agreement, Member agrees to abide by all terms as stated herein with regard to acceptance and return of all Leased Bats to Member by BCUSA. Should Member return a Leased Bat prior to expiration of the agreement term, Member shall remain liable for payment of the balance of the Membership Fees for the remainder of the Agreement Term. Nevertheless, should Member make an Alternate Bat Selection prior to the passing of six months after receipt of any Leased Bat, the remainder of the Membership Fees, owed under the current Agreement Term, will be added to the balance that Member will be obligated to pay for the Alternate Bat Selection. This amount will be prorated so that the remainder owed will be paid in equal monthly installments in addition to the Monthly Fee or Bi-Annual Fee for the Alternate Bat Selection 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 a Member choose to terminate this agreement and pay an early termination fee, the Member shall return all BCUSA Property 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), whichever is greater. An early termination fee shall be assessed by BCUSA for each Agreement the Member is terminating, one termination fee for each Bat. Should Member fail to return all BCUSA Property in its possession upon termination of this agreement, by either means provided herein, Member agrees to pay and Member agrees to be automatically charged the full retail price of any and all BCUSA Property that remain in Member’s possession, in addition to the Early termination Fee(s).
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 Agreement;
(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 Agreement by Member
All BCUSA Property, leased to Member by BCUSA, remains the sole property of BCUSA. Should Member fail to return any BCUSA Property, under the terms of the Agreement and/or fail to maintain sufficient available credit to cover the cost of the penalties for failing to return any BCUSA Property, the Member will be deemed by BCUSA to have stolen the BCUSA Property. BCUSA retains all rights and remedies available under the applicable law to redress the theft of BCUSA property. BCUSA reserves the right to pursue criminal penalties against any person or entity who improperly retains any BCUSA Property
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) years of age or older and Member certifies that it has the authority to utilize the Member Authorized 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. If a Member orders three (3) or more Bats and requests simultaneous delivery of said bats, a minimum of one hundred dollars ($100.00), additional security deposit, will be required for the delivery of each number of Bats greater than two (2). BCUSA reserves the right to require additional deposits for any Bat Lease. These deposits are to be determined at the sole and exclusive discretion of BCUSA. BCUSA reserves the right to refuse any request for Membership for any reason or no reason at all.
Member shall return all BCUSA Property leased by BCUSA in the same or as good condition as the BCUSA Property 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 BCUSA Property leased by BCUSA to Member and to ensure that manufacturer warranties are not voided. Member is responsible to BCUSA for any loss or damage, due to any damages to a BCUSA Property while in Member’s possession. BCUSA shall retain all rights to the manufacturer’s warranty for any given Bat in its inventory. If any BCUSA Property 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 BCUSA Property calculated at the time that the Bat was originally delivered to Member. If a BCUSA Property sustains damages while in Member’s possession, Member shall deliver the BCUSA Property to BCUSA immediately. Subject to the Cracked Bat exception to this Agreement, Member shall never have the right to claim a manufacturer’s warranty, for Member’s own benefit, on BCUSA Property leased by BCUSA. If BCUSA Property 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 specifically authorizes these charges to be made to the Member Authorized Credit Card.
A Member who cracks BCUSA Property (hereinafter “Cracked Bat”), has two options. Option 1) The Member may return the Cracked Bat to BCUSA and pay the one-time Bat Switch Fee. Upon receipt of the Cracked Bat, BCUSA will provide to the Member, a new bat (hereinafter “Alternate Bat Selection”), chosen by the Member, under the Bat Switch terms and conditions of this agreement. The Member may elect option (1) as many times as the Member experiences a Cracked Bat, so long as the Cracked Bat is due to the normal and intended use of a BCUSA Property, by the Member. Any determination of whether BCUSA Property became cracked or otherwise damaged due to normal and intended use, is exclusively reserved to BCUSA. Each time a Member elects to return a Cracked Bat, directly to BCUSA, they must pay the Bat Switch Fee, and make an Alternate Bat Selection. The Alternate Bat Selection under option (1) results in a new Agreement Term, with new pricing, based on the Member’s Alternate Bat Selection, and the prices listed on the BCUSA website at the time of the Alternate Bat Selection. The Member’s obligation to return BCUSA Property (in this case the Cracked Bat), and pay the Bat Switch Fee, as well as all outstanding Membership Fees due at the time of the Alternate Bat Selection, continue, even when the Member exercises the Bat Switch option due to a Cracked Bat. Option (2) The first time a Member experiences a Cracked Bat, the Member may elect to contact the manufacturer directly and exchange the Cracked Bat, under the terms and conditions provided by the manufacturer, for a replacement bat. The bat provided by the manufacturer (hereinafter the “Manufacturer Exchange Bat”) will no longer be under warranty by the manufacturer and will be marked by the manufacturer indicating that the Manufacturer Exchange Bat is no longer under warranty. The Manufacturer Exchange Bat provided by the manufacturer in this exchange remains the property of BCUSA. The Manufacturer Exchange Bat must be returned to BCUSA under the terms and conditions of this agreement as if the Manufacturer Exchange Bat was any Bat originally supplied to the Member from BCUSA pursuant to any section of this agreement. Should the Manufacturer Exchange Bat become cracked due to the normal and intended use by the Member, the Manufacturer Exchange Bat can only be exchanged for a new Bat through the Member’s exercise of option (1) in this section. If the Manufacturer Exchange Bat cracks and the Member does not return the Manufacturer Exchange Bat to BCUSA, the Member agrees to pay the full retail value of the Bat, which initially cracked, and was replaced by the Manufacturer Exchange Bat. Should BCUSA or the manufacturer determine that a bat became damaged by anything other than normal and intended use, no part of this section applies and the terms and conditions of this agreement which cover damaged bats will continue to govern the Member’s and BCUSA’s obligations under this agreement.
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 BCUSA Property 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 all attorney’s fees (including those incurred prior to the institution of litigation through and including 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 BCUSA Property leased by BCUSA to Member. This indemnification provision is intended to provide indemnification and defense any time BCUSA Property, 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.
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.
Notice to BCUSA
All written notices required or permitted to be given by this Agreement shall be deemed to be duly given if delivered via email at email@example.com or by U.S. mail to BCUSA at 13300 SW 128th St Miami, Fl 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.
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.
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 hereto, BCUSA's damages shall include all attorney's fees and costs, and other litigation expenses incurred by BCUSA in obtaining and collecting 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.
This Agreement shall be contingent upon BCUSA’s acceptance of Member. This Agreement shall not be assignable by any party without the prior written 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 State Court, situated in Miami-Dade County, Florida, United States of America.
Consent to Service of Process
The Member hereby irrevocably consents to the jurisdiction of the courts of the State of Florida, situated in Miami-Dade County and of any Federal court located in Miami-Dade County Florida in connection with any action, suit or proceedings arising out of or relating to this Agreement or any action taken or omitted hereunder, and waives personal service of any summons, complaint or other process and agrees that the service thereof may be made by email, to the email address provided by the Member in connection with this agreement (hereinafter “Member Service Email”). It is the sole responsibility of the Member to maintain the Member Service Email, and to promptly notify BCUSA of any change to the Member Service Email. No disruption or lapse of any kind by the Member, or any third party provider of the Member Service Email, concerning the maintenance of, availability of, or access to, the Member Service Email, by the Member, shall invalidate service of process under this provision.
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. Subject to the provisions of this agreement regarding updates made by BCUSA, no amendment or alteration to this Agreement shall have any effect unless made in writing and signed by an authorized representative of BCUSA and by Member.
Updates by BCUSA
BCUSA reserves the exclusive right to, unilaterally, periodically and as often as BCUSA determines it is necessary, update and revise the terms and conditions of the Member Agreement. BCUSA will provide notice (hereinafter “Update Notice”) of these changes to members through the Member Service Email. Members will be advised to accept the updated terms and conditions in this Update Notice. Once the Member accepts the updated terms and conditions, those terms and conditions control the Member agreement. Updated terms and conditions will not affect the price of any Member’s current Membership Fees. The Membership Fee, being paid at the time of any update to these terms and conditions, will remain the same, for any individual Member, for the remainder of that Member’s current Agreement Term as determined by the quality of bat chosen by the Member, as listed on the BCUSA website, (located at batclubusa.com) at the time the Member receives any new bat. Members may elect to reject the updated terms and conditions within thirty (30) days of the Update Notice from BCUSA by responding to the Update Notice and declaring the Member’s rejection. Any Member who does not explicitly reject the updated terms and conditions, within thirty (30) days of the Update Notice, agrees to be bound by the new terms and conditions for the remainder of the Membership term and for any subsequent renewals. When a Member rejects the updated terms and conditions of the BCUSA Member Agreement, the Member is electing to terminate their Membership with BCUSA. This termination is governed by termination provision set forth above.
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 deemed 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 any ambiguities against the drafting party shall not be employed in the interpretation of this Agreement or any amendment, exhibit or schedule hereto.
Should any provision of this Agreement be determined by a court of competent jurisdiction to be invalid, illegal or unforeseeable, such determination shall not affect 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 dba Bat Club USA
|Purchase Price||Payment||Month 1||Month 2||Month 3||Month 4||Month 5||Month 6||Month 7||Month 8||Month 9||Month 10||Month 11||Month 12|
|Twice per year|