AD MAGIC, INC. TERMS AND CONDITIONS OF SERVICES

Effective as of September 12, 2024

1. PRELIMINARY. Ad Magic, Inc., (hereinafter “Ad Magic”) is the manufacturer of custom products made to-order. The services Ad Magic provides to you, our Client, shall be defined by the Quotation that has been separately supplied to you and acknowledged by you. In addition to defining the products we will provide, the Quotation will set forth the cost, billing, and payment parameters for these services.

2. AGREEMENT TO TERMS AND CONDITIONS. The Client represents that they have read and understand these Terms and Conditions as published. In accepting and acknowledging the Quotation, the Client hereby accepts and consents to these Terms and Conditions, which are hereby incorporated into the Quotation and constitute the Parties’ Agreement. Ad Magic reserves the sole discretion and right to change, modify, add, or remove portions of these Terms and Conditions at any time.

3. PURCHASE AND SALE OF PRODUCTS.

   1. Order. The Client’s order shall be summarized in the Quotation, which shall contain:

      1. a description of the products to be manufactured and sold thereunder.

      2. the price for the products.

      3. the quantity of the products.

   2. Billing and Payment. The Client will be provided with an Invoice based upon the final Quotation and shall pay to Ad Magic all invoiced amounts upon receipt. All payments shall be made in U.S. dollars via ACH transfer, credit card, or wire transfer. Wire instructions shall be provided upon request. Production shall not begin until after the invoice is paid in full.

   3. Costs and Fees. The Client shall be responsible for the payment of all payment processing fees related to their order, including any and all fees incurred by reason of the Client’s credit cards, insufficient funds, cancellation charges or any other reason within the Client’s control. Ad Magic has the right to offset any refunds due to the Client by any processing fees such event may incur.

4. PRODUCTION.

   1. Final Proof Approval: The Client is responsible for all errors following final acceptance of the proofs. To be binding, any revisions or change orders must be in writing.

   2. Pre-Production and Post-Production Copies. If Ad Magic sends the Client a pre-production copy of the product for review and approval, the Client agrees that pre-production copies are not intended for distribution and represents that they will not distribute same. Ad Magic will also send the Client a final, post-production copy for approval. If the Client chooses to forgo receiving the post-production copy, they must waive this right in writing. Waiving the right to receive the final post-production copy relieves Ad Magic of all liability for final production errors. The Client is responsible for all errors following final acceptance of the proofs.

5. DELIVERY OF GOODS.

   1. Shipping. Unless otherwise expressly agreed to in writing by all Parties, Ad Magic shall select the method of shipment of and the carrier for the products. The Client shall pay all shipping costs, including any applicable VAT, customs, or tariffs of whatever nature that are invoiced. Payment shall be due upon receipt. If the Client chooses to move their own goods, they must provide Ad Magic with written notice in advance and they must execute a self-shipping acknowledgment and waiver. Any such shipper must execute a non-disclosure and the Client agrees to indemnify Ad Magic for any breach of the same. There shall be a minimum processing fee of $500 due to Ad Magic for coordination and logistics services with the outside shipper. The final processing fee shall be determined and billed upon completion of freight services.

   2. Packaging and Labeling. Ad Magic shall properly pack, mark, and ship products. They shall provide to the Client shipment documentation indicating the quantity of pieces and the number of cartons or containers in shipment, Ad Magic's name, and the country of origin. Any deviation requested by the Client could result in extra fees to the Client, to which the Client consents.

   3. Delivery. Unless otherwise expressly agreed by the Parties in writing, Ad Magic shall deliver the products to the delivery location specified by the Client. Ad Magic shall use commercially reasonable efforts to deliver all products on or before the requested delivery date. However, all estimated delivery dates are estimated dates only. Ad Magic shall not be responsible for any damages of whatever nature due to delays in shipping.

6. WAREHOUSING. The Client shall be responsible for all warehousing fees that may be imposed as the result of any customs inspections.

7. TRANSFER OF TITLE AND RISK OF LOSS. Title to products and the risk of loss passes to the Client:

   1. once they are delivered to the destination or

   2. once the goods are transferred to a third-Party carrier if the Client opts to self-ship the goods.

8. RIGHT TO MANUFACTURE AND SELL COMPETITIVE PRODUCTS. Ad Magic retains the right to manufacture products or products that may be similar to, or competitive with, the Client’s products.

9. PRODUCT COMPLIANCE WITH LAWS AND MARKET REGULATIONS: SAFETY AND REGULATORY TESTING. The Client understands that consumer safety laws and regulations differ depending upon a products’ distribution market and that separate product safety compliance rules and testing will be required for each of the markets chosen by the Client. The Client consents to all labelling requirements imposed by their chosen distribution market(s) and to all product testing costs. Prior to submission of the final Quotation, the Client shall notify Ad Magic of the product’s intended age grade, and of the Client’s intended distribution market(s) to ensure Ad Magic’s ability to comply with the applicable laws and regulations relevant to the product. The cost for product testing shall be included in the final Quotation. The Client shall be provided with all applicable Declarations of Conformity and compliance Certificates applicable to the products, as well as a copy of the test report(s).

   1. The Client understands that Ad Magic cannot be responsible for guaranteeing compliance with all distribution markets worldwide. If the Client intends to distribute their product(s) in any market(s) other than the US, EU, UK, Canada and/or Australia, the Client shall be responsible for obtaining all of the product labelling requirements of the specific market and providing this information to Ad Magic. Although Ad Magic reserves the right to review and approve the information supplied to us, the Client shall be solely responsible for the accuracy of the labelling requirements and shall indemnify and hold Ad Magic harmless for any violations of such market(s). If the distribution market requires safety testing to be performed by specified testing facilities, the Client shall advise Ad Magic in advance. Ad Magic shall coordinate the testing of the products with the required testing facility provided by the Client. A distribution market surcharge shall be imposed for each additional market that is not identified above.

   2. Ad Magic shall not be responsible for ensuring product compliance into markets that were not declared by the Client and included in the final Quotation. If Client chooses to distribute the product into any other distribution market(s), the Client acknowledges that they do so at their own risk as the product may not be in compliance with the rules and regulations of the unidentified market(s). The Client further acknowledges that this means that it may not be legal to distribute into that market. The Client shall indemnify Ad Magic against any loss, damage, or penalty of whatever nature relating to compliance and regulation of the products that are placed in any market that was disclosed at the time of manufacture.

   3. In the event the Client decides to personally test the products via a third-party testing company, the Client shall notify Ad Magic of this fact in writing. The Client shall be solely responsible for the additional costs incurred by this election, which require additional processing fees and result in potential additional transportation fees to a testing site. Ad Magic shall not be responsible for any delays caused by coordinating with Client’s third-party inspection company.

   4. In the event of a product recall, the Client shall be responsible for notifying their customers in accordance with the legal requirements of the regulatory body at issue.

10. INTELLECTUAL PROPERTY RIGHTS AND INDEMNIFICATION. Ad Magic acknowledges and agrees that Client (or its Licensors) shall retain all intellectual property rights used to create, embodied in, used in and otherwise relating to the products and any of the component parts. Client grants Ad Magic the limited right to the intellectual property for the sole purpose of manufacturing the products and for Ad Magic’s promotional and advertising purposes. Subject to terms and conditions set forth herein, the Client shall defend and hold Ad Magic harmless from and against all third-party claims against Ad Magic that allege any of the products infringe upon the intellectual property rights of the third party. If the products or any part of the products, becomes (or in Ad Magic's opinion, is likely to become), subject to a third-party claim that qualifies for intellectual property indemnification coverage under this section, Ad Magic shall have the right to cease production. The Client shall indemnify Ad Magic against any and all losses related to such claims, including Ad Magic’s attorney’s fees and costs to defend the claims.

11. INSURANCE. Ad Magic shall insure the replacement value of the products up to transfer of title as set forth above. Each party shall, at its own expense, be responsible for maintaining and carrying in full force and effect commercial general liability insurance (including product liability coverage) in a sum reasonably calculated to insure against loss and liability of the other party. Ad Magic reserves the discretionary right to require the Client to obtain additional insurance for a sum certain and naming Ad Magic as an additional insured, depending upon the nature of the product. Such request shall be made in writing. The Client shall provide Ad Magic with thirty (30) days’ advance written notice in the event of a cancellation or material change in such insurance policy.

12. SPECIFIC INDEMNITY AND LIABILITY. In addition to the indemnity and liability set forth in Section 12(e), the Client agrees to indemnify, defend, and hold Ad Magic harmless from and against claims related to the content of the products, including any content perceived as being offensive, as well as any claims related to the design or mechanics of the products that might cause injury or harm.

13. LIMITED PRODUCT WARRANTY. Subject to the provisions of this section, Ad Magic warrants to the Client that, upon shipment of the goods, each product shall materially conform to the specifications set forth in the Final Quotation and shall be free from significant defects in material and workmanship.

    1. The Client's Exclusive Remedy for Defective Products. The Client shall notify Ad Magic in writing of any alleged claim or defect within seven (7) business days from the date the Client discovers or, upon reasonable inspection, should have discovered such alleged claim or defect. The Client shall ship, at the Client’s expense and risk of loss, samples of such allegedly defective products to Ad Magic's facility located at 125 Main Street, Netcong, New Jersey 07857 for inspection and testing by Ad Magic. If Ad Magic's inspection and testing reveals to Ad Magic's reasonable satisfaction that such products are defective and any such defect has not been caused or contributed to by any act or inaction by the Client, Ad Magic shall in its sole discretion and at its expense, repair or replace such defective products. The Client has no right to return for repair, replacement, credit, or refund any product except as set forth in this section. In no event shall the Client reconstruct, repair, alter, or replace any products, in whole or in part, either itself or by or through any third Party.

    THIS SECTION SETS FORTH THE CLIENT'S SOLE REMEDY AND AD MAGIC'S ENTIRE LIABILITY FOR ANY BREACH OF THE LIMITED PRODUCT WARRANTY SET FORTH ABOVE.

    DISCLAIMER OF OTHER REPRESENTATIONS AND WARRANTIES; NON-RELIANCE. EXCEPT FOR THE EXPRESS REPRESENTATIONS AND WARRANTIES SET FORTH ABOVE, NEITHER AD MAGIC NOR ANY PERSON ON AD MAGIC'S BEHALF HAS MADE OR MAKES ANY EXPRESS OR IMPLIED REPRESENTATION OR WARRANTY WHATSOEVER, EITHER ORAL OR WRITTEN, INCLUDING ANY WARRANTIES OF MERCHANTABILITY, FITNESS FOR A PARTICULAR PURPOSE, TITLE, NON-INFRINGEMENT OR PERFORMANCE OF PRODUCTS OR PRODUCTS TO STANDARDS SPECIFIC TO THE COUNTRY OF IMPORT, WHETHER ARISING BY LAW, COURSE OF DEALING, COURSE OF PERFORMANCE, USAGE OF TRADE OR OTHERWISE, ALL OF WHICH ARE EXPRESSLY DISCLAIMED. THE CLIENT ACKNOWLEDGES THAT IT HAS NOT RELIED UPON ANY REPRESENTATION OR WARRANTY MADE BY AD MAGIC, OR ANY OTHER PERSON ON AD MAGIC'S BEHALF, EXCEPT AS SPECIFICALLY PROVIDED HEREIN.

    LIMITATION OF LIABILITY. NO LIABILITY FOR CONSEQUENTIAL OR INDIRECT DAMAGES.

    IN NO EVENT SHALL AD MAGIC OR ITS REPRESENTATIVES BE LIABLE FOR CONSEQUENTIAL, INDIRECT, INCIDENTAL, SPECIAL, EXEMPLARY, PUNITIVE OR ENHANCED DAMAGES, LOST PROFITS OR REVENUES, OR DIMINUTION IN VALUE, ARISING OUT OF OR RELATING TO ANY BREACH HEREUNDER, REGARDLESS OF:

    1. (A) WHETHER SUCH DAMAGES WERE FORESEEABLE,

    2. (B) WHETHER OR NOT THE CLIENT/THE OTHER PARTY WAS ADVISED OF THE POSSIBILITY OF SUCH DAMAGES, AND

    3. (C) THE LEGAL OR EQUITABLE THEORY CONTRACT, TORT OR OTHERWISE UPON WHICH THE CLAIM IS BASED, AND NOTWITHSTANDING THE FAILURE OF ANY AGREED OR OTHER REMEDY OF ITS ESSENTIAL PURPOSE.

    MAXIMUM LIABILITY FOR DAMAGES. EXCEPT FOR OBLIGATIONS TO MAKE PAYMENT AS SET FORTH HEREIN, LIABILITY FOR INDEMNIFICATION, LIABILITY FOR BREACH OF CONFIDENTIALITY, IN NO EVENT SHALL AD MAGIC'S AGGREGATE LIABILITY ARISING OUT OF OR RELATED HEREUNDER, WHETHER ARISING OUT OF OR RELATED TO BREACH OF CONTRACT, TORT (INCLUDING NEGLIGENCE) OR OTHERWISE, EXCEED FIFTY (50) PERCENT OF THE TOTAL OF THE AMOUNTS PAID AND AMOUNTS ACCRUED BUT NOT YET PAID TO AD MAGIC PURSUANT TO THESE TERMS IN THE YEAR PRECEDING THE EVENT GIVING RISE TO THE CLAIM.

14. MISCELLANEOUS.

1. Force Majeure.

   Ad Magic shall not be liable or responsible to the Client nor be deemed to have defaulted under or breached these terms, for any failure or delay in fulfilling or performing any term hereunder, if such failure or delay is caused by or results from acts beyond Ad Magic's control, including:

   1. acts of nature: flood, fire, earthquake or explosion.

   2. war, invasion, hostilities (whether war is declared or not).

   3. terrorist threats or acts, riot or other civil unrest.

   4. requirements of law.

   5. actions, embargoes or blockades in effect on or after the date of these terms.

   6. action by any governmental authority (whether having the effect of law or not).

   7. national or regional emergency.

   8. strikes, labor stoppages or slowdowns or other industrial disturbances.

   9. shortages of or delays in receiving raw materials. shortage of adequate power or transportation facilities.

   (Each, a "Force Majeure Event")

2. Termination.

   1. Default. If there occurs a nonmonetary default by a Party under this Agreement that is not cured within the applicable time periods set forth under this Agreement, then the non-defaulting Party may terminate this Agreement upon not less than thirty (30) days prior written notice.

   2. Bankruptcy. Either Party may terminate this Agreement, effective immediately upon giving written notice if the other Party files a petition in bankruptcy; files for a reorganization; files for the appointment of a receiver or trustee of all, or substantially all, such Party’s property; or makes an assignment or petitions for or enters an arrangement for the benefit of creditors.

   3. Force Majeure. If following a Force Majeure, Ad Magic is unable to perform at the service levels for a period more than thirty (30) days, the Client shall have the right to terminate this Agreement.

3. Representations and Warranties. Ad Magic and the Client each hereby individually represent and warrant the following:

   1. It has the full authority and legal right to carry out the terms of this Agreement.

   2. The terms of this Agreement shall not violate the terms of any Agreement, contract, or other instrument to which it is a Party and no consent or authorization of any other person, firm, or corporation is a condition precedent to this Agreement.

   3. It has taken all action necessary to authorize the execution and delivery of this Agreement.

   4. This Agreement is a legal, valid, and binding obligation and is enforceable in accordance with its terms, except as limited by bankruptcy and other laws of general application relating to or affecting the enforcement of creditors’ rights.

   5. The Client further warrants and represents that, to the best of its knowledge, Ad Magic has and shall continue to have for the Term of this Agreement, all necessary authority to use all trademarks, service marks, and other intellectual property of the products for the purposes of conducting the Client’s business. The Client’s business does not and shall not, to the best of the Client’s knowledge, cause the Client to infringe or violate any patents, trademarks, service marks, trade names, copyrights, licenses, trade secrets, or other intellectual property rights of any other person or entity.

   6. The Client represents and warrants that it is neither located in nor a national or resident of any country that is subject to U.S. trade sanctions administered by the U.S. Treasury Department’s Office of Foreign Assets Control (“OFAC”), which prohibits the export of U.S. services. The Client further represents and warrants that it is not a person or entity named on OFAC’s List of Specially Designated Nationals or acting on behalf of any person or entity on the List.

4. Grant of Lien. The Client hereby grants to Ad Magic a first-priority security interest in the products held by Ad Magic to secure the obligations of the Client hereunder; provided, however, that Ad Magic agrees to release such security interest upon the reasonable request of the Client in the event the Client provides Ad Magic collateral in substitution therefore, which is acceptable to Ad Magic in Ad Magic’s sole discretion. The Client shall execute all documents reasonably requested by Ad Magic’s legal counsel for the perfection of such security interest. The Client shall not grant any lien to any third party on any product inventory without the prior written consent of Ad Magic. Such consent which shall not be unreasonably withheld.

5. Indemnity and Liability. The Client agrees to indemnify and hold Ad Magic and its representatives/officers, directors, employees, agents, affiliates, successors and permitted assigns harmless against all claims (including claims by third Party providers engaged by the Client), losses, suits, actions, judgements, debts, damages, costs, charges, fines, penalties and expenses, including without limitation court costs and reasonable attorney’s fees, which Ad Magic may at any time incur by reason of:

   1. a breach or non-fulfillment of any representation, warranty or covenant set forth herein.

   2. any negligent or more culpable act or omission of indemnifying Party or its personnel (including any recklessness or willful misconduct) in connection with their performance hereunder; or any bodily injury, death of any person or damage to real or tangible personal property caused by the negligent acts or omissions of Indemnifying Party or its personnel.

   3. any failure by Indemnifying Party or its personnel to materially comply with any applicable laws.

   4. a material breach of this Agreement by the Client.

6. Compliance with Laws. The Client and Ad Magic shall comply with all laws, rules, and regulations, whether local, state, or federal, applicable to the sale of products and to the providing of services, but only to the extent such laws, rules, and regulations are applicable to it.

7. Confidentiality and Non-Compete. During the provision of services, it is anticipated that Ad Magic and the Client shall come into possession of certain proprietary information belonging to the other, including but not limited to information about its business affairs, products and services, forecasts, pricing, business relationships with third parties, including production plant information, location and contacts, information and materials comprising or relating to Intellectual property rights, trade secrets, marketing records, merchandising records, the Client records and mailing lists, and other sensitive or proprietary information.

   Ad Magic and the Client agree that each shall not, during the term hereof or thereafter, or through gross negligence divulge, furnish, disclose, or make accessible to any third party any of the other’s confidential information unless otherwise instructed by the proprietary party in writing; provided, however, that confidential information shall not include any information that:

   1. at the time of disclosure by the other Party or thereafter is generally available to and known by the public other than because of its disclosure by such Party.

   2. was available to the other Party on a nonconfidential basis from a source other than the proprietary Party, provided that such source is not bound by a confidentiality Agreement, or contractual or fiduciary obligation with the proprietary Party.

   3. has been independently acquired or developed by the other Party without violating any obligations under this Agreement, or of any other Agreement between the Client and Ad Magic or by which either Party is bound for the benefit of the other Party.

   The Receiving Party shall, for five (5) years from receipt or disclosure of such Confidential Information:

   1. protect and safeguard the confidentiality of the Disclosing Party's Confidential Information with at least the same degree of care as the Receiving Party would protect its own confidential Information, but in no event with less than a commercially reasonable degree of care.

   2. not use the disclosing Party's confidential Information, or permit it to be accessed or used, for any purpose other than to exercise its rights or perform its obligations hereunder.

   3. not disclose any such confidential Information to any person, except to the receiving Party's representatives who need to know the confidential information to assist the receiving Party, or act on its behalf, to exercise its rights or perform its obligations herein.

   The receiving Party shall be responsible for any breach of this section caused by any of its representatives or affiliates. At any time during or after the term, at the disclosing Party's written request, the receiving Party and its representatives shall, promptly return all confidential information and copies thereof that it has received.

8. Non-Compete. The receiving Party agrees that it shall not knowingly enter into any business relationship with the other Parties’ third-party vendors without the written consent of the other Party for a period of no less than five (5) years following the date of this Agreement.

9. Assignment. This Agreement shall inure to the benefit of and be binding upon the Parties and their successors and permitted assigns. This Agreement may not be assigned by either Party without the prior written consent of the other Party.

10. Amendments. This Agreement shall not be modified or amended except by a written Agreement signed by authorized representatives of Ad Magic and the Client.

11. Governing Law and Choice of Forum. This Agreement has been entered into and shall be governed, construed, and interpreted in accordance with the laws of the State of New Jersey, United States of America, without reference to any conflicts of law principles. The Parties agree to submit to the jurisdiction of the federal and state courts situated in the County of Morris, State of New Jersey, regarding any proceeding related to this Agreement. The Parties agree that the United Nations Convention on Contracts for the International Sale of Products does not apply. Each Party irrevocably and unconditionally agrees that it shall not commence any action, litigation or proceeding of any kind whatsoever against the other Party in any way arising from or relating to these terms, including all exhibits, schedules, attachments and appendices attached hereto and thereto, and all contemplated transactions, including contract, equity, tort, fraud and statutory claims, in any forum other than the State or District Courts sitting in the jurisdiction of Morris County New Jersey. Each Party agrees that a final judgment in any such action, litigation or proceeding is conclusive and may be enforced in other jurisdictions by suit on the judgment or in any other manner provided by Law.

12. Relationship. Nothing contained in this Agreement shall be construed to imply a joint venture, partnership, or principal/agent relationship between the Parties.

13. Headings. The headings and section numbers appearing in this Agreement are inserted only as a matter of convenience and in no way define, limit, construe, or otherwise describe the scope or intent of the sections of this Agreement.

14. Severability. If any one or more provisions of this Agreement shall be invalid, illegal, or unenforceable in any respect, the validity, legality, and enforceability of the remaining provisions contained herein shall not in any way be affected or impaired.

15. No Waiver. No failure or delay on the part of any Party in the exercise of any right hereunder shall operate as a waiver thereof, nor shall any single or partial exercise of any such right preclude any other or further exercise thereof or of any other right. All rights and remedies under this Agreement are cumulative to, and not exclusive of, any rights or remedies otherwise available.

16. Full Agreement. This Agreement, and any appendices and addenda attached hereto, contain and embody the entire Agreement of the Parties hereto, and no representations, inducements, or Agreements, oral or otherwise, made at any time between the Parties or with any third Party relating to the subject matter hereof which are not contained in this Agreement or in the appendices or addenda, if any, shall be of any force or effect.

17. Notices. All notices and communications provided for in this Agreement shall be given in writing. Such notices and other communications shall be deemed given when received and acknowledged by the receiver, when delivered by hand, or when deposited in the United States Mail, Registered or Certified, and addressed to the Client to the Address provided in the Quotation and, as to us:

    Ad Magic Inc., 125 Main Street, Netcong NJ 07857

    Attn: Virginia D. Liotta, Esq. Email: virginia.d.liotta@admagic.com

18. Cumulative Remedies. All rights and remedies provided under these terms are cumulative and not exclusive, and the exercise by either Party of any right or remedy does not preclude the exercise of any other rights or remedies that may now or subsequently be available at law, in equity, by statute, in any other Agreement between the Parties or otherwise.

Ad Magic, Inc. Terms and Conditions. 9-12-2024