Peak Performance Bat Club Member Rental Agreement
Last Revised: May 4, 2022
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.
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 sporting goods equipment leasing company wherein Members have the right to select and lease an unused equipment (hereinafter “Item(s)” or “Leased item(s)”), in any given twelve (12) month period. Each Leased Item will remain in the Member’s possession for a period not to exceed twenty four (24) months. Items, governed by the terms of this agreement, may be referred to hereinafter as Item(s), Leased Equipment(s), Alternate Equipment Selection(s), Terminated Equipment Selection(s), Cracked Item(s), Loaner Item(s), Used Equipment(s), and/or Manufacturer Exchange Equipment(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 Guaranty
BCUSA guarantees that all BCUSA Property leased pursuant to this Agreement are the sole property of BCUSA. With the exception of Used Items (Used Item 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 Items in its inventory and is not legally affiliated with the manufacturer of any Items. BCUSA has the exclusive right to direct and control the business operation of leasing and/or selling all Items 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 items leased to all Members by BCUSA pursuant to the terms as stated herein shall be exclusively used for the purposes for which items 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 an Item leased by BCUSA to Member; 2) market or sell any other competing recreational brand(s) and 3) use any Item 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 per household. With each membership, BCUSA has the right to charge an additional deposit of last month and up to an additional $200. Every Member has the right to a Free Switch Period for any product leased through BCUSA during which a Member may make an Alternate Item Selection without paying a fee (hereinafter “Item 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 Items 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 Itemclubusa.com) at the time the member agrees to receive any Item 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 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 |
Monthly Obligation |
Free Switch Period |
Switch Fee |
Free Shipping Type |
Initial Membership Fee |
|
Pro |
None |
30 Days |
$50 |
None |
$125 |
|
All Star |
None |
90 Days |
$20 |
Ground |
$0 |
|
Hall of Fame 12 |
Twelve Months |
N/A |
N/A |
Ground |
$200 |
B. Membership Fee Structure
The annual cost of Membership will be determined by the quality of Item chosen by the Member, and the prices listed on the BCUSA website, (located at Itemclubusa.com) at the time the Member agrees to receive and pay for an Item. Membership fees are apportioned and assessed on a Monthly basis (hereinafter “Monthly Fees”) depending on the Member’s selection. Once a Member chooses their membership level, 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. Membership fees will not be waived a member elects to downgrade its membership type.
C. Monthly Fees
Monthly Fees must be paid by the Member. All- Star memberships require the first and last month’s payment due before shipping the item, at the time the Member agrees to accept an Item 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 an Item. 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. The $125 one time fee to be paid by Pro members shall be paid before any item will be shipped the member. Pro members will be charged an annual membership fee of $75 every twelve (12) months automatically on the card provided by the member.
D. Sales Tax
Member agrees to pay all state and local sales tax based upon the state and locality from which Member has ordered an Item 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.
E. Membership Fee Value Back Guarantee
Any Hall of Fame 12 (HOF) Member(s) are required to commit to twelve (12) full payments and will be permitted to make up to three exchanges during the first twelve (12) months of its term. Any HOF member that does not switch an item in any given twelve (12) month period shall receive a site credit in the amount of their initial membership fee. HOF members may qualify for Klarna financing and may elect to pay retail price for an item plus a $200 membership fee in order to be charged a monthly amount. All Star Members that make twelve (12) timely payments without switching an item during said twelve (12) month period shall receive a site credit equal to two (2) monthly membership fee payments upon renewal and BCUSA’s receipt of a third payment and return of the old item. Pro Members that make twelve (12) timely payments without switching an item during said twelve (12) month period will receive a site credit in an amount equal to the initial membership fee previously paid or a site credit equal to two (2) monthly membership fee payments upon renewal and BCUSA’s receipt of a third payment and return of the old item. Pro and All-Star Members may cancel at any time without penalty.
F. Payment Authorization
If the amount to be charged to your Billing Account varies from the amount you preauthorized (other than due to the imposition or change in the amount of state taxes), we shall provide notice of the amount to be charged and the date of the charge before the scheduled date of the transaction. Any agreement you have with your payment provider will govern your use of your Payment Method. You agree that we may accumulate charges incurred and submit them as one or more aggregate charges during or at the end of each Billing Period.
Your non-termination or continued use of a Membership Service reaffirms that we (and/or our Payment Processor) are authorized to charge your Payment Method for that Membership Service. We may submit those charges for payment and you will be responsible for such charges. This does not waive our right to seek payment directly from you. Your charges may be payable in advance, in arrears, per usage, or as otherwise described when you initially selected to use the Membership Service.
VIII. Term
By agreeing the terms stated herein and by becoming a member of BCUSA, Member agrees to be a Member of BCUSA and on the calendar day before the first anniversary date of this Agreement, this Agreement shall automatically renew. 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 Monthly Membership Fees until an Alternate Item Selection is made the Member or all BCUSA Property is returned to BCUSA. In the event that a Member switches its Item, a new Membership term will be commenced upon delivery of the Item regardless of Member’s Membership type.
How to Cancel your Account or a Membership Service
You may terminate your Account or your Membership Service (“Cancel”) at any time. If you Cancel your Membership Service, you may use the Membership Service until the end of your then-current Billing Period and your membership will not be renewed after the expiration of your then-current Billing Period. You must return all Products in your possession in accordance with these Terms no later than the expiration of your then-current Billing Period or the return date in the applicable online invoice (whichever is earlier) to avoid incurring additional charges, including late fees. Please see our FAQ Section for more information regarding how to Cancel your Account or your Membership Service, and applicable late fees.
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. Equipment 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 an Item during the Agreement term:
A) During the Free Switch Period, which varies based upon Membership type, a Member may make an Alternate Item Selection without paying a fee (hereinafter “Item Switch Fee”). Whenever a Member makes an Alternate Item Selection, the Agreement Term starts over, with the new Agreement Term beginning on the date of the Member’s Alternate Item Selection. The Membership Fee under any new Agreement Term will be determined by the quality of Item chosen by the Member, and the prices listed on the BCUSA website, (located at Itemclubusa.com) at the time the Member agrees to receive and pay for the Alternate Item Selection. Members who make an Alternate Item Selection after the Trial Period expires, agree to pay an Item Switch Fee in addition to the Member’s Membership Fees. The new item selected will be delivered to Member upon BCUSA’s receipt of the original item. The Item Switch Fee will vary based upon the type of Membership selected by Member and will apply as follows:
|
Pro Membership |
$50.00 |
|
All Star |
$30.00 |
|
Hall of Fame 12 |
$0.00 for up to three (3) switches during one twelve (12) month period |
One Time Membership fee paid by Pro and HOF members may not be applied to switch fees.
B) At any time a Member may elect to buyout its agreement with BCUSA (hereinafter “Item Buyout”). When a Member elects a Buyout, the Member agrees to contact BCUSA by phone or email notifying BCUSA of this election. Upon electing an Item 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 Item selection and the amount of time remaining in the current Agreement Term or renewal. A current chart of these fees can be found at Itemclubusa.com.
C) At any time a Member may elect to lease a new item from BCUSA however all members will be charged a switch fee if they switch their item outside of the free witch period. A Member may renew its membership and select a new Item (hereinafter “Renewal Item Selection”) at the end of any Agreement Term or renewal period. Members may review any time on a month to month basis.
If a member elects to make a Renewal Item Selection, the Member also agrees to return the previously Leased Item (hereinafter “Terminated Item Selection”), promptly to BCUSA. The Member must contact BCUSA to make a Renewal Item Selection. BCUSA will send the Renewal Item Selection to the Member pursuant to the terms of this agreement. BCUSA shall provide a shipping label for Member’s return of all Items. Should Member fail to return the Terminated Item Selection to BCUSA, Member agrees to pay, and Member agrees to have the Member Authorized Credit Card automatically charged the full retail price of any Terminated Item Selection that remains in Member’s possession, after receiving a Renewal Item Selection. If a Member does not make an Alternate Item Selection at the end of any Agreement Term or Renewal Term, Member agrees that the agreement automatically renews. Member further agrees that Member will continue paying its Membership Fees in accordance with Member’s original Item selection. 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.
D) 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 upto twenty percent (20%) courtesy discount 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.
E) 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 Item Lease Term. The amount of sales tax will be determined based upon the state from which Member has ordered an Item. It is the responsibility of the Member to ensure that the Member’s authorized Credit Card on file with BCUSA is active throughout the Item 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 Item Lease Term.
The Member agrees that if the Member Authorized Credit Card does not have sufficient available credit at the time BCUSA processes the Item Membership Fee, payment will be considered late, and a late fee will be charged by BCUSA. When the Member makes an Alternate Item Selection or a subsequent Item Lease, at the end of an Item Lease, the Member must return the original Item to BCUSA. The Member agrees to return the original Item to BCUSA, within seven (7) days of receiving the Alternate Item Selection or a subsequent Item. BCUSA shall provide a shipping label for Member’s return of all Items. Should Member fail to return the original Item to BCUSA, Member agrees to pay, and Member agrees to have the Member Authorized Credit Card automatically charged the full retail price of any Item that remains in Member’s possession, after receiving an Alternate Item Selection or subsequent Item. If Member fails to return the Used Item(s) in the shipping accommodation provided by BCUSA, Member assumes all liability for proper delivery of the Item(s) to BCUSA. If a Member does not make an Alternate Item Selection or a subsequent, Member agrees that the Item Lease Term automatically renews for a new Item Lease Term. Member further agrees that Member will continue paying the monthly Item Membership Fees in accordance with Member’s original Item selection.
At the end of an Item Lease Term a Member may elect to terminate their Item Lease, without making an Alternate Item Selection or a subsequent Item Lease. When a Member elects to terminate their Item Lease and keep their item, without making an Alternate Item Selection or a subsequent Item Lease, the Member agrees to pay an Item Buy Out Fee. Pro members will pay an Item Buy Out Fee at retail price reduced by the membership fee. All other members would pay the retail price reduced by upto two (2) monthly payments. The Member must contact BCUSA by phone or email during the first thirty (30) days after the expiration of the Member’s Item Lease Term to avoid additional Item 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
HOF12 members own their item once it is received. All-Star and Pro members have the option to purchase their Item through a buyout payment only. Members must contact BCUSA to declare a payment is a buyout payment. Monthly membership payments will not be automatically applied to buyout payments.
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 Item, Member accepts the Item as being satisfactory and consonant with full performance hereunder. If the condition of the Item is not satisfactory upon Member’s receipt thereof, Member agrees to immediately give detailed notice of the Item’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 Item delivered pursuant to this agreement, Members agrees to abide by all terms as stated herein with regard to acceptance and return of all Items leased to Member by BCUSA. Should Member return an Item 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. However, opened Items can only be returned if Member upgrades its membership type and the opened item is only eligble for an exchange. HOF members may not return an opened item. Hall of Fame 12 Members can only return their initial unopened item for a full refund. Switched items, even if unopened, are only eligible for site credits. Unopened returned items will not be counted towards the Hall of Fame 12 Members’ switch maximum.
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 Item 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 Item manufacturer, said Member’s membership will be terminated and Member must purchase the Item 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 at any time by forfeiting their last month’s deposit. Should Member fail to return all Items in its possession upon termination of this agreement, by either means provided herein, Member will be automatically charged the full retail price of all Items 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 Item(s) required by the terms contained herein; or
(ix) upon assignment of the Assignment by Member
XV. Information Provided by Customers
You must provide current, complete, and accurate information for your Billing Account. You must promptly update all information to keep your Billing Account current, complete, and accurate (such as a change in billing address, credit card number, or credit card expiration date). If your Payment Method is canceled for any reason (e.g., for loss or theft) or if you become aware of a potential breach of security, such as the unauthorized disclosure or use of your User ID or password, you must promptly notify us and update your Payment Method. Changes to such information can be made in your account settings. IF YOU FAIL TO PROVIDE ANY OF THE REQUIRED INFORMATION OR KEEP SUCH INFORMATION UP-TO-DATE, YOU AGREE AND ACKNOWLEDGE THAT WE MAY CONTINUE CHARGING YOU USING ANY PAYMENT METHOD YOU HAVE ON RECORD, FOR ANY USE OF PAID SERVICES UNDER YOUR BILLING ACCOUNT, UNLESS YOU HAVE CANCELLED OR PAUSED YOUR PAID SERVICES OR TERMINATED YOUR ACCOUNT IN ACCORDANCE WITH THESE TERMS.
XVI. 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.
XVII. Limitation
With Each membership BCUSA has the right to determine in its sole discretion, whether said delivery shall occur and whether an additional security deposit of last month membership payment and/or additional deposit up to $200 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. Bat Club USA reserves the right to cancel any order at it's own discretion.
XVIII. 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 Items 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 an Item while in Member’s possession. BCUSA shall retain all rights to the manufacturer’s warranty for any given Item in its inventory. If an Item 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 Item calculated at the time that the Item was originally delivered to Member. If Item sustains damages while in Member’s possession, Member shall deliver the Item to BCUSA immediately. If an Item is lost or stolen while in Member’s possession, BCUSA will charge Member for the full retail value of the Item, the value to be determined as of the date that the Item was delivered to Member.
All-Star and Pro Members shall never have the right to claim a manufacturer’s warranty on any Item 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 Item’s damages disqualify the Item from the manufacturer’s warranty or in the event that the manufacturer’s warranty has expired, Member may return the Item 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 Items that do not have a manufacturer’s warranty or if a Member does not renew its Membership. However, Hall of Fame 12 Members that claim a manufacturer’s warranty on an item will forfeit their right to switch said item.
XIX. 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 Items 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 Item(s) leased by BCUSA to Member. This indemnification provision is intended to provide indemnification and defense any time an Item 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.
XX. 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 Items 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.
XXI. Excess Quantities
In the event BCUSA should actually deliver to Member and Member should actually accept and receive during the term hereof quantities of Item(s) in excess of the quantity ordered by Member, Member agrees to pay for said Item(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.
XXII. 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 Item(s) covered by this Agreement. BCUSA may also, in its sole discretion, either (a) change or alter the quality, grade or specifications of any Item(s) covered by this Agreement or (b) discontinue the availability of any such Item(s). Any such change or discontinuation shall not affect the minimum purchase requirements, monthly fee obligation or annual fee obligation set forth herein.
XXIII. 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 membersupport@Itemclubusa.com or by U.S. mail to BCUSA at 14241 sw 120th st STE 110, 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.
XXIV. Express Warranties
BCUSA warrants that the Item(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 Item(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.
XXV. 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.
XXVI. 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.
XXVII. 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.
XXVIII. 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.
XXIX. 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.
XXX. 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.
XXXI. 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.
XXXII. 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