FRENCH WINK MEMBERSHIP
FRENCH WINK MEMBERSHIP
French Wink étant une corporation américaine, le droit américain prévaut.
This Membership Subscription Agreement (hereinafter “MSA” or the “Agreement”) is made as of DATE TO FILL IN THE FORM
BETWEEN THE UNDERSIGNED:
FRENCH WINK CORP., a Delaware Corporation with an address at 1013 Center Road, suite 403S in Wilmington DE 19805, duly represented by Claire Obry in her capacity as President , hereinafter referred to as “French Wink” “We” or “Us”;
ON THE FIRST PART
NAME TO FILL IN THE FORM
hereinafter referred to as the “Member”.
ON THE SECOND PART
Hereinafter collectively referred to as the “Parties”, or individually as a “Party”.
WHEREAS, French Wink is a multi-facets business platform dedicated to promote French creations. French Wink operates as an online marketplace for sellers and buyers of goods and/or services; French Wink leverages its network of strategic Partners to offer the Members a broad scope of business development and consulting services.
WHEREAS, the Member wishes to engage French Wink to provide certain services described in Exhibit A “Member Status and Specific Services Agreement” (hereinafter described as the “Services”), and French Wink agrees to provide such services in accordance with the terms and conditions contained in this Agreement.
WHEREAS, the purpose of this Agreement is to establish the general terms and conditions applicable to French Wink's provision of such Services to the Member and to define the commitments of the Member (as more fully described in Exhibit C).
NOW THEREFORE, in consideration of the foregoing, and for other good and valuable consideration, the receipt and sufficiency of which are hereby acknowledged, accepted and agreed to, the Member and French Wink, intending to be legally bound, agree to the terms set forth below.
1. Consulting Relationship.
During the Term of this Agreement, French Wink will provide the Services to the Member as described in Exhibit A hereto (the “Member status and Specific Services Agreement” or the “Services”), which may change or be amended from time to time by the Parties. French Wink represents that it has the qualifications, the experience and the ability to properly perform the Services.
2.1. As consideration for the Services to be provided by French Wink and other obligations, the Member shall pay to French Wink the amounts specified in Exhibit B hereto (the “Compensation” or “Entry Fee”) at the times specified therein, which may be updated or amended from time to time by the Parties in coherence with the corresponding Specific Services Agreement.
2.2. Payment shall be made online.
Unless provided or agreed otherwise, or expressly specified in this Agreement, French Wink shall not be authorized to incur on behalf of the Member any expenses and will be responsible for all expenses incurred while performing the Services.
4. Term and Termination.
4.1. This Agreement shall be effective as of the date hereof and shall continue as long as both party agree.
4.2. Notwithstanding the above, either Party may terminate this Agreement at any time upon thirty (30) days’ written notice sent by certified mail with return receipt requested. In the event of such termination, French Wink shall still be paid for the entire Term.
4.3. Should either Party default in the performance of this Agreement or materially breach any of its material contractual obligations under this Agreement, the non-breaching Party may terminate this Agreement immediately if the breaching Party fails to cure the breach within twenty (20) days after having received written notice, sent by certified mail with return receipt requested, by the non-breaching Party of the breach or default.
5. Independent Contractor and License
French Wink’s relationship with the Member will be that of an independent contractor and not that of an employee.
License: By entering into this Agreement and voluntarily listing a product or service as a Member of French Wink, you grant us a royalty-free, non-exclusive, worldwide, perpetual, irrevocable right and license to use, reproduce, perform, display, distribute, adapt, modify, re-format, create derivative works of, and otherwise commercially or non-commercially exploit in any manner, any and all of the content you submit to French Wink and its affiliates, and to sublicense the foregoing rights to our affiliates and operators of any website or other online point of presence; provided, however, that French Wink will not alter any of your trademarks (i.e., trademarks of yours that you provide to French Wink in non-text form for branding purposes that are separate from and not embedded or otherwise incorporated in any product specific information or materials) from the form provided by you (except to re-size trademarks to the extent necessary for presentation, so long as the relative proportions of such trademarks remain the same) and will comply with your removal requests as to specific uses of your trademarks (provided you are unable to do so using standard functionality made available to you via our website); provided further, however, that nothing in this Agreement will prevent or impair French Wink’s right to use without your consent the content and any other materials provided by you, to the extent that such use is allowable without a license from you or your affiliates under applicable law (e.g., fair use under copyright law, referential use under trademark law, or valid license from a third party). You represent and warrant that you own or otherwise control all of the rights to the content you submit to French Wink and its affiliates, and that the use of such materials by French Wink and its affiliates will not infringe upon or violate the rights of any third party.
6. Method of Provision of Services.
6.1. The performance of the Business Services shall only be undertaken by French Wink or one of its Partners after (i) receipt of the formal written order sent by the Member and (ii) formal acceptance of such order by French Wink or the Partner, as the case may be.
6.2. The Member shall provide French Wink, with all necessary documents and information for the due performance of the Services.
6.3. French Wink may, at French Wink’s own expense, employ or engage the services of such employees, subcontractors, partners or agents, as French Wink deems necessary to perform the Services (collectively, the French Wink “Partners”). The Partners are not and shall not be employees of the Member, and French Wink shall be wholly responsible for the professional performance of the Services, unless stated otherwise in a contract between the Partner and the Member, by the Partners such that the results are reasonably satisfactory to the Member.
7. No Authority to Bind Member.
French Wink acknowledges and agrees that French Wink and its Partners have no authority to enter into contracts that bind the Member or create obligations on the part of the Member without the prior written authorization of the Member.
The Member shall indemnify and hold harmless French Wink from and against all liability, claims, actions and any other losses, incurred by French Wink, arising as a result of or in connection with this Agreement (including but not limited to, for example, alleged liability based on the relationship of the Parties, breach, misrepresentation, furnishing incorrect or incomplete information, undisclosed material facts affecting the business). This provision shall survive (remain independently binding and enforceable after) termination of this Agreement. In any event whatsoever, French Wink’s liability under this Agreement shall not exceed the amount of subscription fees actually paid the Member during a period of twelve consecutive months.
9. Force Majeure.
If either Party is unable to perform or is delayed in performing, wholly or in part, its obligations under this Agreement (including EXHIBIT C), other than the obligation to pay funds when due, as a result of an event of Force Majeure, that Party may seek to be excused from such performance by giving the other Party prompt written notice of the event of Force Majeure with reasonably full particulars and timing of such Force Majeure event. The obligations of the Party giving notice, so far as they are affected by the event of Force Majeure, will be suspended during, but not longer than, the continuance of the event of Force Majeure. The affected Party must act with commercially reasonable diligence to resume performance and notify the other Party that the event of Force Majeure no longer affects its ability to perform under the Agreement. If French Wink is excused from providing service pursuant to this Agreement due to an event of Force Majeure, the fees hereunder not already due and payable will be excused or proportionately reduced, as appropriate, for so long as French Wink’s performance is excused due to the event of Force Majeure. If either Party is rendered unable to perform by reason of an event of Force Majeure for a period in excess of sixty (60) consecutive calendar days, then the other Party may terminate this Agreement upon written notice to the Party claiming excuse due to the event of Force Majeure. Force Majeure could refer but not exclusively to strikes, package lost by a third party or cancelled flight.
10. Non Solicitation.
During the term of this Agreement the Member shall not, either directly or indirectly, solicit, induce, recruit, or cause any employee of French Wink to terminate his/her employment for the purpose of joining, associating or becoming employed with any business or activity which is in competition with any services sold, marketed, or provided by French Wink.
11. Confidential Information.
The Parties shall treat as confidential and not disclose or use any information received or obtained from the other Party and labeled as “Confidential”. The Parties agree to hold each other’s Proprietary or Confidential Information in strict confidentiality. “Proprietary or Confidential Information” shall include, but is not limited to, written or oral contracts, trade secrets, know-how, business methods, business policies, memoranda, reports, records, computer retained information, notes, or financial information and clients list. Proprietary or Confidential Information shall not include any information which: (i) is or becomes generally known to the public by any means other than a breach of the obligations of the receiving party; (ii) was previously known to the receiving party or rightly received by the receiving party from a third party; (iii) is independently developed by the receiving party; or (iv) is subject to disclosure under court order or other lawful process. The Parties agree not to make each other’s Proprietary or Confidential Information available in any form to any third party or to use each other’s Proprietary or Confidential Information, for any purpose other than as specified in this Agreement. Each Party’s Proprietary or Confidential Information shall remain the sole and exclusive property of that Party. Notwithstanding termination or expiration of this Agreement, both Parties acknowledge and agree that their obligations of confidentiality with respect to Proprietary or Confidential Information shall continue in effect for a total period of five (5) years from the termination of this Agreement.
12. Conflicts with this Agreement.
French Wink represents and warrants that neither French Wink nor any of the Partners is under any pre-existing obligation in conflict or in any way inconsistent with the provisions of this Agreement. French Wink represents and warrants that French Wink’s performance of all the terms of this Agreement will not breach any agreement to keep in confidence proprietary information acquired by French Wink in confidence or in trust prior to commencement of this Agreement. French Wink warrants that French Wink has the right to disclose and/or or use all ideas, processes, techniques and other information, if any, which French Wink has gained from third Parties, and which French Wink discloses to the Member or uses in the course of performance of this Agreement, without liability to such third Parties. French Wink represents and warrants that French Wink has not granted and will not grant any rights or licenses to any intellectual property or technology that would conflict with French Wink’s obligations under this Agreement. French Wink will not knowingly infringe upon any copyright, patent, trade secret or other property right of any former client, employer or third Party in the performance of the Services.
(a) Governing Law and Jurisdiction. This Agreement shall be exclusively governed by and interpreted under New York Law. Any dispute arising out of or in connection with this Agreement shall be brought before the courts of the State of New York, County of New York.
(b) Entire Agreement. This Agreement sets forth the entire agreement and understanding of the Parties relating to the subject matter herein and supersedes all prior or contemporaneous discussions, understandings and agreements, whether oral or written, between them relating to the subject matter hereof.
(c) Amendments and Waivers. No modification of or amendment to this Agreement, nor any waiver of any rights under this Agreement, shall be effective unless in writing signed by the Parties to this Agreement. No delay or failure to require performance of any provision of this Agreement shall constitute a waiver of that provision as to that or any other instance.
(d) Successors and Assigns. Except as otherwise provided in this Agreement, this Agreement, and the rights and obligations of the Parties hereunder, will be binding upon and inure to the benefit of their respective successors, assigns, heirs, executors, administrators and legal representatives. French Wink may assign any of its rights and obligations under this Agreement.
(e) Notices. Any notice, demand or request required or permitted to be given under this Agreement shall be in writing and shall be deemed sufficient when delivered personally or by overnight courier or sent by email, or 48 hours after being deposited in the mail with postage prepaid, addressed to the Party to be notified at such Party’s address as set forth on the signature page, as subsequently modified by written notice.
(f) Severability. If one or more provisions of this Agreement are held to be unenforceable under applicable French law, the Parties agree to renegotiate such provision in good faith. In the event that the Parties cannot reach a mutually agreeable and enforceable replacement for such provision, then (i) such provision shall be excluded from this Agreement, (ii) the balance of the Agreement shall be interpreted as if such provision were so excluded and (iii) the balance of the Agreement shall be enforceable in accordance with its terms.
(g) Construction. This Agreement shall be deemed to be the product of all of the Parties hereto, and no ambiguity shall be construed in favor of or against any one of the Parties hereto.
(h) Counterparts. This Agreement may be executed in any number of counterparts, each of which when so executed and delivered shall be deemed an original, and all of which together shall constitute one and the same agreement.
The Parties have executed this Agreement as of the date first written above.
COMPANY NAME, CONTACT NAME, ADRESS, AND TITLE FILLED IN THE FORM
Name: Claire Obry
Address: 62 WILLIAM STREET, FL8
NEW YORK, NY 10005
By checking the following form at check out, you approve these terms and conditions and become member of the French Wink brands community.
Member Status / SERVICES
Once you proceed to the payment French Wink will:
Create you dedicated page with an e-commerce module.
Add your products to our e-shop catalogue. They will then be ready to be ordered and shipped.
Write an article dedicated to your brand
Publish and Instagram post adapted to your brand and customers
For the based in France brand, give you an access to our storage.
Include you to the French Wink’s members private group.
Personally guide you to adapt your prices, products and brand to the US market.
We will soon send you an excel file to fill out with all the information we need to settle your products/ service on our website.
The French Wink adventure starts. We are in contact to offer you events, promotions and selling opportunities. We will report your sales on a regularly basis (at the end of the following month).
The entry fee is a one-time fee of $600 - 500euros for the French-based company.
A $500 fee for the US-based company.
The French Wink commission is 30% on the eShop sales.
Commission may vary during pop-up stores. Members will be notified of this commissions in the amendment ad-hoc they will sign for each participation.
Retrocession will be paid the following month.
- The Member must provide at least 1 sample per product sold on the French Wink eShop. This will help us to promote your products.
- For brands based in France, the Member must provide a limited stock to our NY warehouse to ensure sell flow and be visible for any promotional event.(our storage is in optimal conditions for products conservation)
- Product Return to France: at the termination of this agreement, any product return costs shall be supported by the Member;
- The Member shall be responsible for all transportation, insurances and all applicable custom costs and fees.