Effective May 1, 2022
1. What do these Affiliate Program Terms cover?
1.1. These terms and the documents referred to in them (we refer to these as the Affiliate Program Terms) govern your application, selection and participation in the Whisk Affiliate Program. The Whisk Affiliate Program is open to applications from both individual and corporate creators by invitation only, and you and your shall, where used in these Affiliate Program Terms, be construed to cover both types of participants.
1.2. If you are selected by Whisk to take part in the Whisk Affiliate Program then you must also comply with the Whisk Standard Terms and the Whisk Policies, although in the event of any conflict between these Affiliate Program Terms and the Whisk Standard Terms or the Whisk Policies, then these Affiliate Program Terms will prevail to the extent related to your participation in the Affiliate Program.
1.3. The Whisk Affiliate Program 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. Whisk may invite you to participate in the Whisk Affiliate Program, if you are invited you will be required to complete and submit a form applying to be part of the Affiliate Program (the Application Form). The Application Form and process will also contain a link to or further information about the Whisk Affiliate Program financial proposition, including the sums which you may be able to earn once you have been accepted to participate in the Whisk Affiliate Program, and the basis upon which any such sums are calculated (we refer to this document as the Financial Proposal).
2.2. Please read these Affiliate Program Terms carefully before you apply to participate in the Whisk Affiliate Program. By applying to participate in the Whisk Affiliate Program, you confirm that you accept these Affiliate Program Terms and that you will comply with them. If you do not agree to these Affiliate Program Terms you are not entitled to participate in the Whisk Affiliate Program 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 Affiliate Program. Your acceptance as a participant in the Whisk Affiliate Program 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 Affiliate Program. 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 a country or jurisdiction that you have informed us of; and (ii) 18 years of age or older;
3.2.2. if you are a corporate entity, you are fully incorporated and have your registered office in a country or jurisdiction that you have informed us of;
3.2.3. you must have an active Whisk account and you must not, in our sole opinion, be in breach of the Whisk Standard Terms or the Whisk Policies;
3.2.4. you must own and operate a functioning cooking based website which makes available cooking recipes; and
3.2.5. at the date of your application you must have at least 1,000,000 monthly recipe views on a website.
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 Affiliate Program, you must use one or more of the Whisk approved widgets set out in the Financial Proposal on all of the recipes on the site owned and operated by you (Whisk Widgets).
4.2. Once your application is accepted by Whisk, you shall be entitled to participate in the Whisk Affiliate Program until your participation is terminated (either by us or by you) pursuant to section 6.1.
4.3. In participating in the Whisk Affiliate Program you represent, warrant and undertake that:
4.3.1. you shall comply at all times with: (i) these Affiliate Program 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 Affiliate Program, 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 you will display one or more Whisk Widgets on all the recipes on the site owned and operated by you;
4.3.3. you shall be responsible for ensuring that any Whisk Widget displayed on the site owned and operated by you functions correctly to allow users to direct to the Whisk platform;
4.3.4. you shall use all Whisk Widgets strictly in accordance with the license terms set out in the Whisk Affiliate Terms;
4.3.5. you shall act in good faith towards us in connection with your participation in the Whisk Affiliate Program;
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 Affiliate Program; 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.
4.4. Whisk shall provide you with a software development kit (the SDK) and other tools (collectively, the Solutions) to enable you to use functioning Whisk Widgets on your site.
4.5. Subject to compliance with the Whisk Affiliate Program Terms, Whisk grants to you a non-exclusive, non-transferable, non-sublicensable license to utilize the Solutions for the duration of these Whisk Affiliate Program Terms.
4.6. You shall not use the Solutions for any purposes beyond the scope of the license granted to you in these Whisk Affiliate Program Terms. Without limiting the foregoing and except as expressly set forth in the Whisk Affiliate Program Terms, you shall not at any time, and shall not permit others to:
4.6.1. copy, modify or create derivative works based on the Solutions
4.6.2. distribute, transfer, sublicense, lease, lend or rent the Solutions to any third party;
4.6.3. reverse engineer, decompile or disassemble the Solutions;
4.6.4. use the Solutions in any manner or for any purpose that infringes, misappropriates, or otherwise violates any intellectual property right or other right of any person, or that violates any applicable law;
4.6.5. combine or integrate the Solutions with any software, technology, services, or materials not authorized by Whisk;
4.6.6. attempt to cloak or conceal your identity or the identity of the applications when requesting authorization to use the Solutions; and
4.6.7. make the functionality of the Solutions available on multiple websites or other media channels which are not part of the Whisk Affiliate Program Terms.
4.7. Whisk may provide you with necessary documentation and other assistance for the implementation of Solutions for the purpose of displaying a functioning Whisk Widget(s) on the site owned and operated by you.
5. Reporting and financials
5.1. In consideration of you displaying one or more of the Whisk Widgets on all of the recipes on the site owned and operated by you, 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 Affiliate Program, and save as may be set out in the Financial Proposal (including as to minimum monthly earnings commitments) nothing in these Affiliate Program 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 Affiliate Program. 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 displaying one or more of the Whisk Widgets 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 Affiliate Program 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 per new user sign ups from clicking the Whisk Widget displayed on a recipe on the site owned and operated by you over the previous calendar month, 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 bank account details or Payment Account (as applicable) 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 Affiliate Program. 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 Affiliate Program 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 (irrespective of the country or jurisdiction in or relating to which the same arise). 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. We shall, in our sole discretion, pay the Monthly Payment to you:
5.9.1. in full and cleared funds to a bank account nominated in writing by you; or
5.9.2. to the relevant third party network representing you as set forth in the Financial Proposal (Third Party Network); or
5.9.3. to 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.
5.10. If payment is made via a Third Party Network you acknowledge that the Third Party Network will act on your behalf at your request and arrange our contract with you (governed by these Whisk Affiliate Program Terms as described above). In such instances, whilst our contract will be with you, the relevant network will be responsible for administering (e.g. receiving our Monthly Report and submitting invoices to us for sums due to you) and receiving on your behalf all payments we make pursuant to these Whisk Affiliate Program Terms. This clause 5 shall continue to apply to you in these situations, however the following shall apply from a practical perspective:
5.10.1 any reference to our paying sums to you in these Whisk Affiliate Program Terms shall be deemed to be a reference to our paying sums to the Third Party Network on your behalf and we will not be obliged to pay any sums directly to you whatsoever; and
5.10.2 the Third Party Network will be responsible for receiving our Monthly Report (clause 5.5) and for submitting all connected invoices to us (clause 5.6).
5.11. Your contract with the Third Party Network ought to set out how you will be paid by the Third Party Network and we would recommend you are aware of the terms of that arrangement.
5.12. If payment is made via your Payment Account you acknowledge that it is your responsibility to ensure that your Payment Account is set up to receive payment from us. Accordingly:
5.12.1. 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 country or jurisdiction of location, or your failure to comply with these Affiliate Program Terms, the Whisk Standard Terms, the Whisk Policies or the terms and conditions associated with any Payment Account;
5.12.2. you shall pay all fees or charges relating to the use or operation of the Payment Account;
5.12.3. we shall not be obliged to notify you if we are unable successfully to remit payment to your Payment Account; and
5.12.4. 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.
5.13. The Whisk Affiliate Program is designed to drive real and authentic engagement with new users. In the event that we determine, in our sole discretion, that any methods used by you to earn financial benefit from the Whisk Affiliate Program are:
5.13.1 manipulated or artificially enhanced new users (including but not limited to creating multiple fake users); or
5.13.2. otherwise involve you breaching these Affiliate Program Terms, the Whisk Standard Terms or the Whisk Policies,
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 Affiliate Program 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 Affiliate Program at any time on giving notice to the other.
6.2. Termination of your participation in the Whisk Affiliate Program 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 Affiliate Program 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 Affiliate Program 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 Affiliate Program 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 Affiliate Program, 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 Affiliate Program 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 Affiliate Program 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 Affiliate Program Terms, Default means any of the following:
6.5.1. if you are in breach of these Affiliate Program 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 Affiliate Program, you shall be entitled to reapply to participate in the Whisk Affiliate Program at a future date by invitation only. 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 Affiliate Program
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 Affiliate Program, 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 Affiliate Program Terms to the extent prohibited or limited by law and in particular nothing in these Affiliate Program 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 Affiliate Program 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 Affiliate Program Terms is or becomes invalid or contravenes any law then the remaining provisions shall not be affected.
8.2. Nothing in these Affiliate Program 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 Affiliate Program Terms shall be enforceable by any person other than you or us.
8.4. The Whisk Affiliate Program is a global initiative, however Whisk is an English limited company and these Affiliate Program Terms are governed by English law as a result. You and we both agree to submit to the non-exclusive jurisdiction of the English courts, although you may be able to choose to take action against us in your local courts if mandatory local laws allow.
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 Affiliate Program Terms at any time. You are expected to check these Affiliate Program 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 Affiliate Program 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 Affiliate Program Terms then you may terminate your participation in the Whisk Creator Fund pursuant to Section 6.1.