Effective December 1, 2021
1. What do these Creator Fund Terms cover?
1.1. These terms and the documents referred to in them (we refer to these as the Creator Fund Terms) govern your application, selection and participation in the Whisk Creator Fund. The Whisk Creator Fund is open to applications from both individual and corporate creators, and you and your shall, where used in these Creator Fund Terms, be construed to cover both types of creator.
1.2. If you are selected by Whisk to take part in the Whisk Creator Fund then you must also comply with the Whisk Standard Terms and the Whisk Policies, although in the event of any conflict between these Creator Fund Terms and the Whisk Standard Terms or the Whisk Policies, then these Creator Fund Terms will prevail to the extent related to your participation in the Whisk Creator Fund.
1.3. The Whisk Creator Fund is operated by Foodient Limited, trading as “Whisk” (Whisk, we or us). We are a limited company registered in England and Wales with company number 8001091 and have our registered office at Whisk.com, 483 Green Lanes, London, N13 4BS, UK. Our VAT number is 140606741.
2. Application process
2.1. You may apply to participate in the Whisk Creator Fund by completing and submitting the form for applying to the Creator Fund (the Application Form). The Application Form and process will also contain a link to or further information about the Whisk Creator Fund financial proposition, including the sums which you may be able to earn once you have been accepted to participate in the Whisk Creator Fund, and the basis upon which any such sums are calculated (we refer to this document as the Financial Proposal).
2.2. Please read these Creator Fund Terms carefully before you apply to participate in the Whisk Creator Fund. By applying to participate in the Whisk Creator Fund, you confirm that you accept these Creator Fund Terms and that you will comply with them. If you do not agree to these Creator Fund Terms you are not entitled to participate in the Whisk Creator Fund and must refrain from applying or participating in it.
3.1. Upon receipt by us of your Application Form, we shall review your application and shall determine whether to accept you as a participant in the Whisk Creator Fund. Your acceptance as a participant in the Whisk Creator Fund is solely at our discretion and we are not obliged to give reasoning behind our decision to accept or reject your application.
3.2. We may choose a range of criteria from time to time in assessing who we accept to participate in the Whisk Creator Fund. In any event, you must meet at least the following criteria (and be able to demonstrate the same to us on request):
3.2.1. if you are an individual, you must be: (i) a legal resident of the United States or the United Kingdom; and (ii) 18 years of age or older;
3.2.2. if you are a corporate entity, you must be incorporated in and have your registered office in the United States or the United Kingdom;
3.2.3. your Whisk account must be active and you must not, in our sole opinion, be in breach of the Whisk Standard Terms or the Whisk Policies;
3.2.4. at the date of your application you must have at least 150,000 real and authentic followers across all social media channels and/or have at least 100,000 monthly recipe views on a website;
3.2.5 in the 30 days prior to the date of your application, you must have at least 250,000 real and authentic total video views across all social media channels; and
3.2.6 you have set up an account with a payment provider approved by Whisk as set forth in the Financial Proposal (the Payment Account), which (for both individuals and corporate entities) is registered in your own name.
3.3 Employees, officers and contractors (or similar) of Whisk or any of our group companies are not eligible to participate in the Whisk Creator Fund.
4. Participation and your commitment to us
4.1. Upon selection to participate in the Whisk Creator Fund, you shall be entitled to create content and post it on the Whisk platform using the content posting process designated by us from time to time.
4.2. Once your application is accepted by Whisk, you shall be entitled to participate in the Whisk Creator Fund until your participation is terminated (either by us or by you) pursuant to section 6.1.
4.3. In participating in the Whisk Creator Fund you represent, warrant and undertake that:
4.3.1. you shall comply at all times with: (i) these Creator Fund Terms, the Whisk Standard Terms and the Whisk Policies; and (ii) all applicable laws, regulations and codes of practice relating to your participation in the Whisk Creator Fund, and in each case shall notify us as soon as you become aware of any fact or circumstance which does or may cause you to be in breach of the same;
4.3.2. all content created and posted by you will comply with the Whisk Standard Terms and the Whisk Policies at all times. In particular (but without limit) we would remind you of sections 5, 6 and 7 of the Whisk Standard Terms, which apply to the content you post as part of your participation in the Whisk Creator Fund as well as any other content you post on the Whisk platform;
4.3.3. you shall be responsible for paying any and all sums due to any third parties with respect to the content you post on the Whisk platform, including any applicable licence fees;
4.3.4. you shall ensure that all content meets our community standards found at https://support.whisk.com/hc/en-us/articles/360048342572-The-Recipe-Creator-s-Guide-to-Whisk#h_01FB85HBFWBMT1376WRGBV33QZ and that all content created and posted is of a high quality and represents the type of content with which we would reasonably be expected to want to associate;
4.3.5. you shall act in good faith towards us in connection with your participation in the Whisk Creator Fund;
4.3.6. you shall obtain, maintain and comply with, at your own cost, all necessary licences, permits and consents required for you to participate in the Whisk Creator Fund and to create and post content on the Whisk platform; and
4.3.7. you shall maintain your Payment Account and shall ensure that you comply with all terms and conditions applicable to your Payment Account.
5. Reporting and financials
5.1. In consideration of you creating and posting content on the Whisk platform, we shall pay to you such sums as you may earn in a calendar month calculated in accordance with the Financial Proposal (such sums, if any, the Monthly Payment).
5.2. The Financial Proposal sets out the basis on which you are able to earn monetary payment from the Whisk Creator Fund, and save as may be set out in the Financial Proposal (including as to minimum monthly earnings commitments) nothing in these Creator Fund Terms guarantees you any particular level of Monthly Payment.
5.3. The Financial Proposal may also set out a maximum monthly limit on the Monthly Payment that you are entitled to receive as a result of your participation in the Whisk Creator Fund. Any such limit shall apply regardless of your earnings in a calendar month. No earnings in a calendar month that are in excess of the maximum monthly limit may be carried over into subsequent months.
5.4. We shall be entitled to change the Financial Proposal from time to time and shall notify you of any such changes and the date from which the changes will take effect. After such date any sums earned by you from the creation and posting of content on the Whisk platform will be earned and paid in accordance with the revised Financial Proposal. If you do not agree to the revised Financial Proposal then you may terminate your participation in the Whisk Creator Fund pursuant to section 6.1.
5.5. We will provide you with a report (the Monthly Report) on or after the end of each calendar month. The Monthly Report will include such details as we shall reasonably consider useful to demonstrate your activity on the Whisk Platform over the previous calendar month, the number of real and authentic views of your posted content and any Monthly Payment sums earned by you pursuant to the then in force Financial Proposal.
5.6. Following your receipt of the Monthly Report and in any event within 30 days of the end of the relevant month, you shall submit an invoice to us for any Monthly Payment sums shown on the Monthly Report and we shall pay the same within 30 days of the date on which we receive your valid invoice. For your invoice to be ‘valid’ it shall include details of your Payment Account and such other details as we may require and which will be notified to you at the time of your acceptance as a participant in the Whisk Creator Fund. If you do not submit a valid invoice within 30 days of the end of the relevant month we reserve the right not to pay you any Monthly Payment sums otherwise due.
5.7. All payments made by us pursuant to these Creator Fund Terms shall be less any third party transaction fees, which we shall be entitled to deduct from any Monthly Payment.
5.8. You shall be responsible for all taxes, contributions, commissions or other sums arising out of the payment or receipt of the Monthly Payment. If we are required to withhold any taxes from any Monthly Payment, then we shall make payment to you less a deduction for the taxes required to be withheld and such payment will constitute full settlement of the Monthly Payment sums owing to you.
5.9. You acknowledge that it is your responsibility to ensure that your Payment Account is set up to receive payment from us. Accordingly:
5.9.1. we assume no responsibility for any delay, failure or inability to transfer any Monthly Payment to your Payment Account for reasons that are outside of our control, including (without limit) your failure to comply with these Creator Fund Terms, the Whisk Standard Terms, the Whisk Policies or the terms and conditions associated with any Payment Account;
5.9.2. you shall pay all fees or charges relating to the use or operation of the Payment Account;
5.9.3. we shall not be obliged to notify you if we are unable successfully to remit payment to your Payment Account; and
5.9.4. you agree to accept any funds remitted to your Payment Account by us within 30 days of the date of any such remittance, and any failure to do so may lead to your forfeiting such funds and/or such funds being unavailable for withdrawal.
5.10. The Whisk Creator Fund is designed to drive real and authentic engagement with quality, legitimate content. In the event that we determine, in our sole discretion, that any content posted by you or the methods used by you to earn financial benefit from the Whisk Creator Fund are:
5.10.1 manipulated or artificially enhanced;
5.10.2. involve your own, fake, automated, paid or incentivised views, likes or similar; or
5.10.3. otherwise involve you breaching these Creator Fund Terms, the Whisk Standard Terms or the Whisk Policies,
5.10.4. then at our election you may forfeit your right to receive any Monthly Payment or we may otherwise change (in part or in full) any relevant Monthly Payment as we shall see fit or set-off any such adjustment against any future sums due to you. If there are no future sums due to you (e.g. because your participation in the Whisk Creator Fund has ceased) then we shall submit an invoice to you for any such relevant adjustment sums and you shall pay such invoice within 30 days of the date of the invoice.
6.1 Either you or we may terminate your participation in the Whisk Creator Fund at any time on giving notice to the other.
6.2. Termination of your participation in the Whisk Creator Fund shall not affect:
6.2.1 any rights or liabilities which have accrued prior to the date on which your participation terminates; or
6.2.2. the continuance in force of any provision of these Creator Fund Terms, the Whisk Standard Terms or the Whisk Policies which expressly or by implication is intended to come into or continue in force after the date on which your participation terminates.
6.3. In the event that your participation in the Whisk Creator Fund is terminated and you are not in Default (as defined below) at or in the 30 days prior to the date termination, we shall issue you with a final report showing any outstanding sums due to you up to the date on which your participation in the Whisk Creator Fund terminates. We shall pay any such sums within a reasonable period of time following the date of the final report. Following any such payment we shall have no further liability to you for any further payments in connection with your participation in the Whisk Creator Fund, even if content posted by you continues to receive views or likes beyond such payment date.
6.4. In the event that you are in Default at or in the 30 days prior to the date on which your participation in the Whisk Creator Fund terminates, we shall not be obliged to pay any further sums to you on or after the date on which your participation in the Whisk Creator Fund is terminated or notice is given to such effect, and you shall forfeit any such sums which would otherwise be owed to you.
6.5. For the purposes of these Creator Fund Terms, Default means any of the following:
6.5.1. if you are in breach of these Creator Fund Terms, the Whisk Standard Terms or the Whisk Policies;
6.5.2. if you operate, or in our reasonable opinion, are likely to operate, whether by act or omission in a manner that is to the detriment of our reputation or interests or that of any of our group companies from time to time, the Whisk platform or another user of the Whisk Platform; or
6.5.3 if you suffer any corporate action, application, order, proceeding or appointment or other step is taken or made by or in respect of you for any composition, compromise or arrangement with any of your creditors, any restructuring plan, any moratorium, your winding-up (other than for the purpose of a bona fide scheme of solvent reconstruction or amalgamation), dissolution, administration, receivership (administrative or otherwise) or bankruptcy, or if you are unable to pay your debts as they fall due, or if you cease to trade or if a distress, execution or other legal process is levied against any of your assets which is not discharged or paid out in full within three days or if any event analogous to any of the foregoing shall occur in any jurisdiction in which you are incorporated, resident or carry on business.
6.6. If you are not in Default at or in the 30 days prior to the termination of your participation in the Whisk Creator Fund, you shall be entitled to reapply to participate in the Whisk Creator Fund at a future date. Any such reapplication should be made using the Application Form and following the associated online process.
7. Our liability to you with respect to the Whisk Creator Fund
7.1. Subject to clauses 7.2 and 7.3, our total liability to you in respect of all claims (and series of related claims) arising in each calendar year in which you participate in the Whisk Creator Fund, is limited to a sum equal to the total Monthly Payments paid to you in such calendar year.
7.2. We will not be liable for any loss or damage you suffer that is not a foreseeable result of our breach of these Terms or our negligence. Loss or damage is foreseeable if they were an obvious consequence of our breach or negligence.
7.3. Our liability shall not be limited or excluded by any provision of these Creator Fund Terms to the extent prohibited or limited by law and in particular nothing in these Creator Fund Terms shall exclude or limit liability:
7.3.1. for death or personal injury caused by negligence to the extent prohibited by law;
7.3.2. for fraudulent misrepresentation or other fraud.
7.4. Except as expressly set out in these Creator Fund Terms all warranties, conditions, terms and liabilities express or implied, statutory or otherwise, on our part, in respect of compliance with descriptions, quality or fitness for purpose are excluded except to the extent such exclusion is prohibited or limited by law.
8. Other important terms
8.1. If any of the Creator Fund Terms is or becomes invalid or contravenes any law then the remaining provisions shall not be affected.
8.2. Nothing in these Creator Fund Terms shall be:
8.2.1. deemed to constitute a partnership, joint venture, representative or agency relationship between you and us; or
8.2.2. construed or have effect as constituting any relationship of employer and employee between you and us.
8.3. No provision of these Creator Fund Terms shall be enforceable pursuant to the Contracts (Rights of Third Parties) Act 1999 by any person other than you or us.
8.4. These Creator Fund Terms are governed by English law. You and we both agree to submit to the non-exclusive jurisdiction of the English courts.
8.5. No waiver shall constitute a waiver of any other terms. No failure by us to exercise a remedy shall constitute a waiver to subsequently exercise any remedy.
8.6. “Whisk” is a registered trade mark in the UK and the European Union of Foodient Limited.
8.7. We may revise these Creator Fund Terms at any time. You are expected to check these Creator Fund Terms from time to time to take notice of any changes we make, as they are binding on you. Some of the provisions contained in these Creator Fund Terms may also be superseded by provisions or notices published elsewhere on the Whisk platform. If you do not agree to any changes made to these Creator Fund Terms then you may terminate your participation in the Whisk Creator Fund pursuant to Section 6.1.