Peak Performance Bat Club Member Rental Agreement
Last Revised: May 1, 2021
This Member Rental 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.
I. Purpose
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, subject to the terms and conditions contained herein and all amendments and/or modifications to this Agreement. 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 twenty-four (24) 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”.
II. Product GuarantyBCUSA 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.
III. 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).
IV. Control
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/or sold. 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.
V. 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. Members are authorized to lease two (2) products simultaneously from BCUSA. If Member wishes to lease additional products in excess of two (2), BCUSA has the right to charge an additional deposit. Every Member has the right to a Free Switch Period for any product leased through BCUSA during which a Member may make an Alternate Bat Selection without paying a fee (hereinafter “Bat Switch Fee”).
VI. Single Membership
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.
VII. Payment and Fees
Upon registration Member shall provide payment information which Vendor shall charge automatically each month. 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. Site credits earned by Membership in connection with its Membership may be applied to a new membership or additional products but site credits cannot be applied towards any monthly or biannual regular membership payment(s). Member agrees to pay all fees and charges assessed by BCUSA pursuant to the terms stated herein as follows:
A. Membership Type:
|
Category |
Renewal Bonus |
Renewal Buyout Discount |
Free Switch Period |
Switch Fee |
Shipping |
Site credits |
|
None |
0 |
None |
0 Days |
N/A |
Free standard ground |
None |
|
Pro |
$25 |
None |
30 Days |
$30 |
Free standard ground |
None |
|
All Star |
$100 |
$25 |
90 Days |
$20 |
Free 2 day air |
$2 per monthly payment paid |
|
HOF |
$125 |
$25 |
N/A |
$0 |
Free 2 day air |
$3 per monthly payment paid |
B. 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 Monthly basis (hereinafter “Monthly Fees”) depending on the Member’s term length selection. Once a Member chooses their term length, 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. Members have the right to upgrade their membership type at any time during this Agreement. However if a Member desires to downgrade its membership type, a new Membership cycle will be initiated based upon the downgraded membership type.
C. Monthly Fees: 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) or eighteen (18) equal installments during the Agreement Term, with the first and last month’s 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 term. 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.
D. Sales Tax: 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.
VIII. Term
By agreeing the terms stated herein and by becoming a member of BCUSA, Member agrees to be a Member of BCUSA for a minimum period of twelve (12) or eighteen (18) months depending on the term selected by the member, separate and apart from the purchase period of 18 for a 12 month term and twenty-four (24) month period for an 18 month term for purchasing a bat. On the calendar day before the first anniversary date or 18 months from the start date of this Agreement depending on the term selected by the member, this Agreement shall automatically continue. Every end of term date 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 Monthly Membership Fees until an Alternate Bat Selection is made the Member or all BCUSA Property is returned to BCUSA. If a Member renews its membership after its twelve (12) or eighteen (18) month period, an early termination fee will not be charged to Members if the bat is returned prior to expiration of the term selected. In the event that a Member switches its bat, a new Membership term will be commenced upon delivery of the bat regardless of Member’s Membership type.
IX. Time
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.
X. 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) or eighteen (18) month period, Member shall have the right to retain a selected bat for a period for the term length selected from the date of delivery of the bat. This right is contingent on the Member complying with all of the Member’s obligations under the Agreement. A Member may elect at any time to lease a different Bat from BCUSA (hereinafter “Alternate Bat Selection”).
B) During the Free Switch Period, which varies based upon Membership type, a Member may make an Alternate Bat Selection without paying a fee (hereinafter “Bat Switch Fee”). Whenever a Member makes an Alternate Bat Selection, the Agreement Term starts over, with the new Agreement Term beginning on the date of the Member’s Alternate Bat Selection. The Membership Fee under any new Agreement Term 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 the Alternate Bat Selection. After the Trial Period expires, The Bat Switch Fee will be no more than $30.00 depending on the membership level selected. Members who make an Alternate Bat Selection, after the day Trial Period expires, agree to pay the Bat Switch Fee in addition to the Member’s Membership Fees. The Bat Switch Fee will vary based upon the type of Membership selected by Member.
C) At any time a Member may elect to buyout its agreement with BCUSA (hereinafter “Bat Buyout”). When a Member elects a Bat Buyout, the Member agrees to process their buyout payment through their batclubusa.com account, contact BCUSA by phone or email notifying BCUSA of this election. Upon electing a Bat Buyout, the Member Agrees to have the Member Authorized Credit Card charged the applicable buyout fee immediately upon notifying BCUSA. The applicable buyout fees are based on the Member’s bat selection and the amount of time remaining in the current Agreement Term or renewal. Buyouts during the term are equal to the retail value of the item at the start of the Member’s term and 50% of the retail value at the start of the membership once the minimum term has been met. If a Member returns its bat before expiration of its Agreement, Member will be charged an early termination fee.
D) At the end of any Agreement Term, a Member may elect to lease a new bat from BCUSA without being subject to the Bat Switch Fee. A Member may renew its membership and select a new Bat (hereinafter “Renewal Bat Selection”) at the end of any Agreement Term or renewal period. If a member elects to make a Renewal Bat Selection, the Member also agrees to return the previously Leased Bat (hereinafter “Terminated Bat Selection”), promptly to BCUSA. The Member can renew their membership for a new item through their batclubusa.com account or contact BCUSA to make a Renewal Bat Selection. BCUSA will send the Renewal Bat Selection to the Member pursuant to the terms of this agreement. Upon receipt of any Renewal Bat Selection from BCUSA, the Member agrees to return the Terminated Bat Selection to BCUSA, within seven (7) days of receiving the Renewal Bat Selection. BCUSA shall provide a shipping label for Member’s return of all Bats. Should Member fail to return the Terminated Bat Selection to BCUSA, Member agrees to authorize BCUSA to continue membership payments for the item until it is returned. Member further agrees that Member will continue paying its Membership Fees in accordance with Member’s original bat selection. I BCUSA Property will be deemed returned to BCUSA once BCUSA physically receives the BCUSA Property. Members will be deemed to have returned the BCUSA property on the date Member shipped the BCUSA property back to BCUSA, only if BCUSA physically receives the BCUSA Property.
E) A Member may elect to receive a Loaner Bat from BCUSA. Loaner bats will require a fully refundable deposit valued at the estimated retail price of the used bat. 100% refundable after 8 weeks, 50% refunded if retuned after 8-12 weeks and no refund if kept longer than 12 weeks. Loaner Bats can be rented for four (4) weeks (Loaner Bat Period). Member agrees to make Loaner Bat Payments each week during the Loaner Bat Period and to have the Member Authorized Credit Card charged for each Loaner Bat Payment. The cost for a Loaner Bat will be determined by the quality of Loaner 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 Loaner Bat. At the end of the Loaner Bat Period, the Member must return the Loaner Bat to BCUSA. BCUSA shall provide a shipping label for Member’s return of the Loaner Bat(s). If Member fails to return the Loaner Bat(s) in the shipping accommodation provided by BCUSA, Member assumes all liability for proper delivery of the Loaner Bat(s) to BCUSA. BCUSA Property will be deemed returned to BCUSA once BCUSA physically receives the BCUSA Property. Members will be deemed to have returned the BCUSA property on the date Member Shipped the BCUSA Property Back to BCUSA, only if BCUSA physically receives the BCUSA Property.
F) Lightly Used Products. BCUSA will maintain an inventory of items that it deems, in its sole discretion, “Lightly Used Products.” Any Lightly Used Product will be made available to any Member pursuant to the same lease terms as stated herein. However, any Member who leases a Lightly Used Product will be given the stated discount at the time of membership in the fees associated with leasing said product. All other terms in this Agreement remain unchanged with respect to a Member’s lease of a Lightly Used Product.
G) Penalties and Collections. BCUSA will collect past due Membership Fees each month until they are paid. A late fee will be assessed for each late Membership Fee, each time the Member does not pay their past due Membership Fees. Member shall also be responsible for payment of all sales tax on an amount equal to the total of all Membership Fees due during any Bat Lease Term. 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’s authorized Credit Card on file with BCUSA is active throughout the Bat Lease Term and that the Member Authorized Credit Card has sufficient credit available to satisfy Member’s monthly obligation, each and every month, during the Bat Lease Term.
The Member agrees that if the Member Authorized Credit Card does not have sufficient available credit at the time BCUSA processes the Bat Membership Fee, payment will be considered late, and a late fee will be charged by BCUSA. At the end of any Bat Lease Term, a Member may elect to renew their Membership with an Alternate Bat Selection, a subsequent Bat Lease, or to terminate their Bat Lease by paying the buyout total listed in their batclub usa account.. When the Member makes an Alternate Bat Selection or a subsequent Bat Lease, at the end of a Bat Lease, the Member must return the original Bat to BCUSA. The Member agrees to return the original Bat to BCUSA, within seven (7) days of receiving the Alternate Bat Selection or a subsequent Bat. BCUSA shall provide a shipping label for Member’s return of all Bats. Should Member fail to return the original Bat to BCUSA, Member agrees to pay, and Member agrees to have the Member Authorized Credit Card charged while the Bat that remains in Member’s possession, after receiving an Alternate Bat Selection or subsequent Bat. If Member fails to return the Used Bat(s) in the shipping accommodation provided by BCUSA, Member assumes all liability for proper delivery of the Bat(s) to BCUSA. If a Member does not make an Alternate Bat Selection or a subsequent Bat Lease at the end of any Bat Lease Term, Member agrees that the Bat Lease Term automatically renews for a new Bat Lease Term. Member further agrees that Member will continue paying the monthly Bat Membership Fees in accordance with Member’s original Bat selection.
At the end of a Bat Lease Term a Member may elect to terminate their Bat Lease, without making an Alternate Bat Selection or a subsequent Bat Lease. When a Member elects to terminate their Bat Lease, without making an Alternate Bat Selection or a subsequent Bat Lease, the Member agrees to pay the amount specified in their bat Club USA account. The Member must contact BCUSA by phone or email during the first thirty (30) days after the expiration of the Member’s Bat Lease Term to avoid additional Bat Membership Fees.
If a Member fails to pay three consecutive monthly Membership Fees BCUSA will consider the membership delinquent and all earned site credits will be forfeited. 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.
Member acknowledges that BCUSA is entitled to enforce all rights to which it is afforded by Florida Statute Section. 812.155 for failure to return rental property or equipment upon expiration of the rental period and failure to pay all amounts due which can be legally presumed as abandonment or refusal to redeliver the property.
XI. Purchase Option
Members have the option to purchase their bat through an 18-month plan when selecting a 12 month term or 24-month payment plan when selecting an 18 month minimum term.
XII. Membership Profile
Each Member will have a profile created which can be accessed on Vendor’s website. Each Member’s profile will contain payment history.
XIII. 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 bat 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. However, opened bats can only be returned if Member upgrades its membership type.
Item protection plan will be offered to all Members at the time that Membership plan is selected. All Members who elect to include an item protection plan in its Membership plan will automatically receive a warranty through Vendor and will start a new membership term if any bat gets replaced through the item protection plan. If any Member who does not elect the item protection plan with their Membership claims the warranty directly with the bat manufacturer, said Member’s membership will be terminated and Member must purchase the bat from Vendor.
XIV. Termination
This Agreement may be terminated in any of the following ways:
a) 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 lower of twenty dollars ($20) a month for each month left on or $300. 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.
b) 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
XV. Minimum AgeMember 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.
XVI. Limitation
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.
XVII. Damaged/lost/stolen product(s)
Member bears the entire risk of loss, theft or damage to the Device from any cause during the entire term of this Agreement. Even if the Device is lost, stolen or damaged, you remain obligated for the Total of Payments. We recommend that you obtain property insurance on the Device. You may obtain this property insurance from anyone you want. We will be providing an insurance option.
Member shall return all items leased by BCUSA in the same or as good condition as the item was in when received by Member, subject to normal wear and tear as determined by BCUSA. BCUSA has the sole discretion to determine the condition of a returned item. If BCUSA determines that a returned glove is not functional or cannot be repaired, BCUSA reserves the right to charge Member for the full value of the glove. 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. 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 never have the right to claim a manufacturer’s warranty on any bat leased by BCUSA except as provided in this paragraph. In the event that a manufacturer warranty is available, Member may elect to process their item’s warranty directly through the manufacturer. In order to process a warranty directly through the manufacturer, Member shall buy the item from BCUSA by paying the full Buy Out Fee. In the event that the bat’s damages disqualify the bat from the manufacturer’s warranty or in the event that the manufacturer’s warranty has expired, Member may return the bat to BCUSA and BCUSA will waive the Buy Out Fee only if Member renews its Membership. Note that this Buy Out Fee waiver does not apply to Bats that do not have a manufacturer’s warranty or if a Member does not renew its Membership.
XVIII. Indemnification
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.
XIX. 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.
XX. 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.
XXI. 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.
XXII. Notice
All written notices required or permitted to be given by this Agreement shall be deemed to be duly given if delivered via email at peakperformancebatclub@gmail.com 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.
XXIII. 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.
XXIV. 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.
XXV. Commencement
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.
XXVI. 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.
XXVII. 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.
XXVIII. 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.
XXIX. Interpretation
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.
XXX. Severability
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.
XXXI. 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.
SIGNED
Peak Performance Bat Club, LLC