XMagnet.com

TERMS OF SALE - RETAILER

THESE TERMS are incorporated by reference into all  sales orders between Gen-D (dba XMagnet.com) and Retail Merchant (Merchant) on paper or electronically through the internet, or in the absence of such are incorporated by reference into any and all transactions by which Merchant acquires goods from Gen-D. 

ORDERS
 
Orders. Merchant will order Goods by written or electronic notice to Gen-D. Gen-D may in its sole discretion decline to accept any order. Each order will specify the number of goods to be shipped, the type of goods to be shipped, and the desired method of shipment.  Gen-D for clarification may insert into orders clarifications such as the descriptions,  reference numbers or characteristics. Merchant agrees to be bound by such details as though they were contained in the orders at the time Merchant submitted them. The making of an order, or the offering of the making of an order, whether or not accepted by Gen-D, binds Gen-D and Merchant to these terms.

Acceptance. An order from Merchant will be considered accepted by Gen-D when acknowledgment of receipt of the order is given by Gen-D to Merchant, or if no acknowledgment is given then when shipment is made.

Cancellation.  An order from Merchant that is accepted by Gen-D may be canceled by Merchant without the written approval of Gen-D.

Minimum. Minimum invoice value is the minimum order quantity stated in the Product Catalog or on the Merchant area of the website on the date of any order.

Size. Orders will be in standard package quantities as time to time set for each product by Gen-D per the Retail Packaging Conventions posted on this website.

Resale to Consumers Only. A Merchant is authorized to purchase the products only for resale directly to consumers.

Assortment.  All sales are made in assorted sizes, logos, name brands, colors, materials, cloth brand labels, and artwork, unless specifically otherwise specified on the order and agreed to in writing by Gen-D.  If a specific brand line is ordered, these assortments will occur within that one line. Photo art subject matter, coloration and position may vary from those shown by sales representatives, literature, or on this website. Artwork coloration, size, game scenes, game and characters, subject matter, and position will vary according to Gen-D’s sole artistic judgment. Gen-D does not assign separate UPCs for different colors; colors are always assorted.

PRICING

Pricing of Goods to Merchant.  Merchant will pay Gen-D for goods according to the pricing in effect between Gen-D and Merchant at the time Merchant’s order is accepted by Gen-D. All prices stated are F.O.B. shipping point. Merchant will bear all costs of transportation and insurance and will promptly reimburse Gen-D if Gen-D in its sole discretion pays for such expenses.

List Price. The list price of the goods will be as from time to time stated in the Product Catalog, posted on this website, or as otherwise noted in writing between the parties. Gen-D will endeavor to give Merchant advance notice of price changes.

Right of Sale. Merchant will not sell at retail venues other than those operated by Merchant.

PACKAGING

Packaging. Goods are packaged by Gen-D in the manner from time to time stated in product catalogs or as posted in “Retail Packaging Conventions” on www.XMagnet.com.

DELIVERY

Shipment. All shipments of goods will be made F.O.B. shipping point and liability for loss or damage in transit, or thereafter, will pass to Merchant upon Gen-D's delivery of goods to a common carrier for shipment. Shipping dates are approximate and are based, to a great extent, on prompt receipt by Gen-D of all necessary ordering information from Merchant. Gen-D agrees to ship goods to Merchant as close as possible to the delivery schedule set forth in each order as accepted by Gen-D, unless Gen-D otherwise indicates in writing. Gen-D will make every effort to, but will not be liable for failure to, honor any order which: (a) specifies a shipping date earlier than Gen-D's then current delivery schedule for the date such order is received by Gen-D and/or (b) specifies a quantity to be delivered in any one month within the current delivery schedule which is greater than one hundred percent (100%) of the total quantity shipped in the preceding sixty (60) day period.

Taxes. Prices do not include any federal, state or local taxes which might be applicable to the goods sold under these terms. In any international sales, applicable import and export taxes and duties will be for the account of Merchant. An amount equal to the appropriate taxes will be added to the invoice by Gen-D where Gen-D has the legal obligation to collect such taxes. Merchant will pay such amount to Gen-D unless Merchant provides Gen-D with a valid tax exemption certificate authorized by the appropriate taxing authority. Any gross receipts taxes assessable by Merchant’s state in lieu of sales taxes will be for the account of Merchant.

Title to Goods. Gen-D hereby reserves a purchase money security interest in the goods sold or to be sold under this contract and in the proceeds thereof, if Merchant will have sold the goods to another party prior to Merchant paying Gen-D. These interests will be satisfied by payment in full. A copy of these terms may be filed with the appropriate authorities at any time after the signature by Gen-D as a financing statement in order to perfect Gen-D's security interest. On the request of Gen-D, Merchant will execute UCC financing statement(s) and other instruments Gen-D will desire to perfect a security interest in the goods for its purchase price, and Merchant appoints Gen-D its attorney-in-fact to execute such instruments.

Goods Acceptance. The goods will be deemed accepted by Merchant if at the time of delivery Merchant does not report to Gen-D in writing that the goods do not conform to the product description on order.

Delays in Delivery; Force Majeure. Gen-D will not be liable for or in default of these terms by reason of any delay attributable to any cause, circumstance, or contingency beyond its control or the control of its suppliers or Gen-D’s which prevents or impedes manufacture, supply, or delivery to Merchant by Gen-D whether directly or indirectly. Such causes, circumstances, and contingencies will include, but not be limited to: inability to obtain material, supplies or services in the normal course of business; accidents; fire; explosion; strikes, lockouts, or other labor problems; freight embargo; gas or petroleum product shortage or embargo; act of God or of the public enemy; war; unusual general economic fluctuations or events; bank failures; terrorist attacks and disruptions caused thereby or the government in response thereto; riots; civil disturbance; act of any government, de jure or de facto, or agency or official thereof; material or labor shortage; transportation contingencies; unusually severe weather; default of any other Gen-D or a supplier or subcontractor; quarantine, restriction, epidemic; catastrophe; restraints affecting shipment or credit; non-arrival or delay of carriers; lack of timely instructions or essential information from Merchant; inadequate or reduced supply or excessive cost of suitable raw materials, transportation or production facilities; or otherwise arising out of causes beyond the reasonable control of Gen-D. Nor will Gen-D at any time be liable for any incidental, special or consequential damages. Gen-D will not be liable for fines, penalties, damages or offsets arising out of or relating to illegible, unscannable, or unworkable UPC bar codes on goods. Delays in delivery attendant to same will not entitle Merchant to terminate these terms, declare a default on these terms, fail to honor any order, or collect damages for same. In the event of such default or delay, the date for shipment will be extended correspondingly. Gen-D may make delivery on an equitable basis with reference to all its Merchants and buyers. No orders may be canceled unless acceptable to Gen-D. If payment is to be made by letter of credit and if the letter of credit should expire prior to the date of completion of the products, Merchant will extend the letter of credit promptly on terms acceptable to Gen-D, or will otherwise assure full and prompt payment in a manner acceptable to Gen-D.

MUTUAL RESPONSIBILITIES

Gen-D Responsibilities. Gen-D will use its best efforts to perform the following duties:

1. Warrant to Merchant (not subsequent purchasers, whose warranty is stated elsewhere herein) that the goods purchased by Merchant meet the following warranty of merchantability:
   1. pass without objection in the trade
   2. are of fair average quality
   3. are fit for ordinary purposes
   4. are of even kind, quality and quantity, as per the assortment paragraph of these terms
   5. are adequately contained, packaged and labeled
   6. conform to the product description on Merchant’s order to Gen-D.
2. Supply the goods requirements of Merchant.
3. Assure that the goods conform to the warranties set forth herein.
4. Reimburse or re-supply Merchant for goods upon which Merchant has honored Gen-D’s warranty on behalf of Gen-D.
5. Grant Merchant hereby a limited license to use art, literature, signage, display artwork, and product information in connection with merchandising Gen-D’s products which are sold to Merchant.
6. Grant Merchant hereby a limited license to use the Seal of Approval in merchandising and advertising the products purchased hereunder, in accordance with the rules governing the Seal of Assurance Program.

Merchant Responsibilities. Merchant will use its best efforts to perform the following duties:

1. Honor Gen-D’s Warranty on behalf of Gen-D, and return the defective goods to Gen-D. Gen-D will credit or re-supply Merchant in equal number to goods upon which Merchant has honored warranty requests.
2. Truthfully represent Gen-D goods.
3. Accurately portray Gen-D’s brand image in advertising and signage.
4. Refrain from modifying Gen-D goods.
5. To the extent that Merchant tracks such data, provide to Gen-D on a periodic basis the demographics of customers buying the goods, sales information, and returns information. Gen-D will have the right to use any such information obtained from Merchant for any legal purpose. Gen-D will not further distribute such information.

WARRANTIES

Goods Title Warranty. Gen-D warrants that the goods purchased by Merchant hereunder will be free and clear of all liens and encumbrances except for Gen-D's purchase money security interest therein.

Limited Goods and Services Warranty. Gen-D warrants that the goods are free from manufacturing defects in material and workmanship under normal use and service for a period of one year from the date of delivery to the original end user. Warranties do not extend beyond the original end user. ALL IMPLIED WARRANTIES OF MERCHANTABILITY OR FITNESS ARE LIMITED TO THE SAME PERIOD. Claimant must furnish proof of date of purchase. Gen-D will provide replacement goods or services, or may opt to reimburse the purchase price if that is infeasible. Gen-D’s sole liability with respect to any defect will be for the replacement of the defective goods or services. No one is authorized to make any other warranties on behalf of Gen-D, or modify this warranty, except in a separate written paper document under signature of a corporate officer of Gen-D then-listed with the Florida Department of State (see www.sunbiz.org). Gen-D will not be liable for repairing damages or failures caused by acts of God, abuse, abnormal usage, use or application for which the goods and services are not intended. The foregoing will constitute Gen-D’s sole warranty and sole liability, and is in lieu of any other warranties whether written, oral, implied, or statutory. Some states and provinces do not allow the limitation of exclusion or limitation or incidental or consequential damages and some states do not allow limitations on how long an implied warranty lasts, so the limitations or exclusions may not apply. This warranty gives its beneficiaries specific legal rights, and beneficiaries may have other rights which vary from state to state and province and province. Gen-D WILL NOT BE LIABLE FOR INCIDENTAL OR CONSEQUENTIAL DAMAGES ARISING OUT OF OR IN CONNECTION WITH THE USE OR PERFORMANCE OF THE GOODS OR SERVICES OR OTHER INDIRECT DAMAGES WITH RESPECT TO LOSS OF PROPERTY, REVENUES, LIFE OR LIMB, PERSONAL INJURY, AND CLAIMANT’S REMEDIES SHALL BE LIMITED TO REPAIR OR REPLACEMENT OF NONCONFORMING GOODS OR SERVICES.

ADVERTISING AND SIGNAGE

Authorized Use of Gen-D Name and Logos by Merchant. In connection with Merchant’s marketing and sales of goods purchased from Gen-D, Gen-D authorizes Merchant’s use of all marks, tradenames, slogans, ads, logos, and graphics developed by Gen-D and provided by Gen-D through posting on Gen-D’s website www.XMagnet.com or otherwise, provided that small trademark indications (® or ™ as appropriate) are located next to the mark(s). Upon completion of its sale of the goods within a reasonable time, Merchant will discontinue the use of the above and thereafter will not use the same either directly or indirectly in connection with its business or expressions resembling the same or that might lead anyone to confusion or uncertainty, or to deceive the public.

Quality Control and Brand Protection. For success and protection Gen-D requires high product image quality and accurate reproduction of the marks and product theme. Merchant will submit to Gen-D all advertising, signage, video, written or electronic sales promotion, press releases and other publicity matters in which Gen-D or the marks are mentioned or language from which the connection of Gen-D’s name or the marks may be inferred or implied and not publish or use same until they are approved in writing by Gen-D. Approval may be granted or withheld, or artistic and design changes required, for any reason in Gen-D’s sole artistic discretion. Among other things, Gen-D may consider coloration, materials, wording, texture, lighting, animation, theme, tone, offensiveness, morals, ethics, message, sexual innuendo, violence, portrayal of teenagers as adults, concerns, and any other matter Gen-D deems relevant in its sole discretion. Gen-D will be the exclusive copyright owner of any copyrightable material produced or used by Merchant that includes or references any of the Marks, and any such copyrights registered in the United States Copyright Office will be registered in the name of Gen-D. Merchant agrees not to seek or claim a copyright on artwork which incorporates the Marks.

INTELLECTUAL PROPERTY RIGHTS

Drawings and Data. Gen-D retains for itself all proprietary rights in and to all designs, details, and other data pertaining to goods and to all trade names, copyright material, and the like arising out of the goods, including the sole right to manufacture any and all such products. Merchant will not contact Gen-D's suppliers, or any other person, for the purpose of manufacture.

Trademark Acknowledgment.  You acknowledge and agree as a matter of contract and of law that "Live Laugh Love" is a trademark of D-Generation, Inc. in all classes of goods and services

Proprietary Product; Non-Competition.  As per Terms of Use with same tagline posted at www.XMagnet.com

Additional Marks.  As per Terms of Use with same tagline posted at www.XMagnet.com

New Artwork.  Any artwork, alternative designs, slogans, signage or other intellectual property created by Merchant arising out of or related to the goods,  will be the property of Gen-D, and  will be considered specially ordered for Gen-D  as "work made for hire,” or, if for any reason held not to be such  Merchant in consideration of this agreement hereby assigns all its right, title and interest in the same to Gen-D,  will execute such documents as may be necessary to perfect the transfer of such title and copyright, and appoints Gen-D as Merchant’s attorney-in-fact to execute same.

GENERAL MATTERS
The following general provisions are a material part of these terms:

Construction. Regardless that this agreement was initially drafted by Gen-D, the parties agree that any ambiguity herein will not be construed by the parties or courts against Gen-D because the parties had the opportunity to mutually negotiate and if desired edit and revise these terms during its procurement.

Governing Law and Venue. As per Terms of Use with same tagline posted at www.XMagnet.com
 
Language of Construction. As per Terms of Use with same tagline posted at www.XMagnet.com

Headings. As per Terms of Use with same tagline posted at www.XMagnet.com

Definitions. The following definitions apply in these terms: “D-Gen” means D-Generation, Inc., which has granted Gen-D an exclusive license for its interest in the Marks, and is a third party beneficiary of but not a party to these terms. “Mark” or “mark” means the marks listed herein, on www.XMagnet.com, on the order, and on the goods purchased by Merchant.  Portions of these terms are derivative of and dependent upon a License right granted to Gen-D by D-Gen, a Florida corporation, and that in the event that master license right is lost by fault or not, then the obligation of Gen-D to supply goods under contract will end without claim by Merchant against Gen-D or against D-Gen.

Invalid, Unenforceable, or Illegal Provisions. Should any provision of these terms be, become, or be declared invalid, unenforceable, or illegal, the remaining provisions will be and continue in full force and effect, and the invalid, unenforceable or illegal provision will be construed to the maximum extent possible to effectuate its intent and the intent of the rest of the Contract.

Specific Performance; Bond Waiver. The parties stipulate that any breach of any of the provisions of the Advertising and Signage, or Intellectual Property Rights sections of these terms will irreparably harm Gen-D. In addition to any other remedies available in law or equity, Gen-D will be entitled to an order granting a temporary, emergency, and/or permanent injunction and/or specific performance compelling Merchant to comply with said provisions, without a hearing, posting of a bond, proof of monetary damage or an inadequate remedy at law, or compliance with any other legal or procedural requirement for obtaining injunctive relief. The parties expressly and forever waive the posting of any and all bonds, and presentation of expert testimony, by Gen-D which may be required by Rule of Court or by statute or common law for injunctive or other relief sought for matter arising out of or relating to these terms. An injunction and an temporary or preliminary injunction may be obtained on affidavit within Florida and then lodged and enforced through a court in any other jurisdiction in the United States.

Attorneys Fees and Costs. In connection with any dispute arising out of these terms, each party shall bear their own attorney’s fees and costs.

Entire contract. These terms and the related sales order comprise the entire agreement between Merchant and Gen-D, and all prior and contemporaneous oral and written statements, promises, agreements, and understandings are incorporated herein, and no such agreements or representations are binding unless set forth herein, except the Terms of Use posted at www.XMagnet.com which are incorporated herein.  Any provisions of Merchant's sales order or purchase order forms which might in any way contradict, supplement, or be in addition to those in these terms, will not be part of the agreement between the parties, will be deemed stricken, and will have no applicability to the sale of goods by Gen-D to Merchant. Acceptance of these terms is evidenced by Merchant’s signature on the shipment bill of lading or the sales order, or payment, or physical acceptance of any of the goods from the carrier.

Modification. As per Terms of Use with same tagline posted at www.XMagnet.com

Corporate Entity; Release.  As per Terms of Use with same tagline posted at www.XMagnet.com

Waiver Of Right to Jury Trial. BY EXECUTING THIS AGREEMENT, THE PARTIES HERETO KNOWINGLY AND WILLINGLY WAIVE ANY RIGHT THEY HAVE UNDER APPLICABLE LAW TO A TRIAL BY JURY IN ANY DISPUTE ARISING OUT OF OR IN ANY WAY RELATED TO THIS AGREEMENT OR THE ISSUES RAISED BY ANY SUCH DISPUTE.

END OF MERCHANT SALES TERMS