Affiliate Terms

AFFILIATE PROGRAM TERMS & CONDITIONS

‍

Effective Date: March 7, 2024

‍

These Terms and Conditions govern your access to and use of Sherpa’s products for affiliates (the “Services”). By registering for or using the Services, you (on behalf of yourself or the business you represent) agree to be bound by these terms, including Service terms and applicable policies for each Service (together, “Service Terms”). These Service Terms are subject to change from time to time at the sole discretion of Sherpa.

If you are collaborating with Sherpa pursuant to a separate commercial arrangement not described in these Service Terms, the contractual terms that relate to such arrangement will be separately agreed between you and Sherpa, and those terms will prevail over any conflicting terms in these Service Terms. 

As used in these Service Terms, “Sherpa” means Visa Run Inc. (dba. Sherpa), with its principal place of business at 401-340 King Street E, Toronto, ON, M5A 1K8, Canada, and “you” or “Partner” means the person or business the person is employed by or represents as a user of the Services (with Sherpa, the “Parties”).

‍

The Parties agree as follows:

SECTION 1 - TERMS

1. SERVICE TERMS CONSTRUCTION

1.1. Definitions. Capitalized terms not expressly defined in these Service Terms have the meanings given to them in Schedule A.

1.2. Schedules. The following schedules are attached to and form part of this Agreement: 

Schedule A – Definitions

Schedule B – Commercial Terms

Schedule C – Acceptable Use Policy 

‍

2. TERM & LIMITATIONS

2.1. Term of Agreement. This Agreement will commence upon usage of the Services and continue for the duration of usage or until a separate commercial arrangement commences.

2.2 Limitation on distribution. Partner may not resell the Services to any third party without the prior consent of Sherpa. Violation of this term may result in the termination of this Agreement and the forfeiture of Partner’s share of Application Service Fees as defined in the Order Form.

3. TOOLS 

3.1. Tools. Subject to the terms and conditions of this Agreement, Sherpa will make available to Partner the Tools on a worldwide, non-exclusive, non-transferable, non-sublicenseable, revocable, basis, solely for the purposes of facilitating Participating Transactions. Sherpa will also provide to Partner its standard accompanying Documentation and Support.

4. CONFIDENTIALITY

4.1. Confidential Information. “Confidential Information” means all information disclosed by a Party (“Disclosing Party”) to the other Party (“Receiving Party”), whether orally or in writing, that is designated as confidential or that reasonably should be understood to be confidential given the nature of the information and the circumstances of disclosure between the Parties, Partner Confidential Information includes Partner Data, Cardholder Data and Output Data. Disclosing Party’s Confidential Information does not include information that is (a) already known to or independently developed by the Receiving Party without access to the Disclosing Party’s Confidential Information; (b) publicly available through no wrongful act of Receiving Party; or (c) received by Receiving Party from a third party who was free to disclose it without confidentiality obligations. 

4.2. Obligations. Receiving Party hereby agrees that during the Term and at all times thereafter it will not: (a) disclose Confidential Information of the Disclosing Party to any person, except to its own personnel and service providers having a “need to know” and that have entered into written agreements no less protective of such Confidential Information than this Agreement; (b) use Confidential Information of the Disclosing Party except to exercise its license rights or perform its obligations under this Agreement; or (c) alter or remove from any Confidential Information of the Disclosing Party any proprietary legend. Each Party will take reasonable precautions to safeguard the other Party’s Confidential Information. Those precautions will be at least as great as the precautions that the Receiving Party takes to protect its own Confidential Information of a similar type.

4.3. Exceptions. Notwithstanding Section 4.2, Receiving Party may disclose Disclosing Party’s Confidential Information: (a) to the extent that such disclosure is required by applicable law or by the order of a court or similar judicial or administrative body, provided that, except to the extent prohibited by law, the Receiving Party promptly notifies the Disclosing Party in writing of such required disclosure and cooperates with the Disclosing Party to seek an appropriate protective order; or (b) to its legal counsel and other professional advisors if and to the extent such persons need to know such Confidential Information in order to provide applicable professional advisory services in connection with the Party’s business.

4.4. Compelled Disclosure. If Confidential Information is required to be disclosed pursuant to a requirement of a governmental authority, such Confidential Information may be disclosed pursuant to such requirement so long as the Party required to disclose the Confidential Information, to the extent possible, provides the other Party with timely prior notice of such requirement and coordinates with the other Party in an effort to limit the nature and scope of such required disclosure.

4.5. Effect of Expiration and Termination. Upon expiration or termination of this Agreement for any reason:

1. The Receiving Party shall (i) return to the Disclosing Party, or at Disclosing Party’s written request destroy, all documents and tangible materials containing, reflecting, incorporating, or that are based on, any Disclosing Party Confidential Information; (ii) permanently erase all Disclosing Party Confidential Information, as well as all electronic files containing, reflecting, incorporating, or that are based on Disclosing Party Confidential Information, from all of Receiving Party’s Systems and any other systems Receiving Party directly or indirectly controls; and (iii) certify to Disclosing Party in a signed written instrument that it has complied with the requirements of this Section 4.5(a). 
2. Notwithstanding anything to the contrary in this Agreement, with respect to information and materials then in its possession or control, Receiving Party may retain the Disclosing Party’s Confidential Information (i) in tangible form, in its then current state solely to the extent and for so long as required by applicable law, rule or regulation; and (ii) in electronic form, in its backups, archives and disaster recovery systems until such Disclosing Party Confidential Information is deleted in the ordinary course. All information and materials described in this Section 4.5(b) will remain subject to all confidentiality requirements of this Agreement

5. PRIVACY, DATA AND SECURITY

5.1. Monitoring. Sherpa may monitor and analyze the Tools and Support for purposes of security and with respect to Partner’s compliance with this Agreement

5.2. Privacy. Partner agrees (on Partner’s behalf and on behalf of each Authorized Developer and End Customer) to Sherpa’s access, use, collection, storage and disclosure of Partner’s and each Authorized Developer and End Customer’s Personal Information for the purposes authorized under this Agreement. Sherpa acknowledges that Partner Data may include Personal Information. Partner understands that Personal Information, including the Personal Information of Authorized Developers and End Customers, will be treated in accordance with Sherpa’s Privacy and Information Security Policy (link provided in full in Appendix A).

5.3. Data.

1. Sherpa will use commercially reasonable administrative, physical and technical safeguards designed for the protection, confidentiality and integrity of the Services, Partner Data and Output Data.
2. Sherpa may collect and analyze data and other information relating to the provision, use and performance of the Services (including, without limitation, information concerning Partner Data, Output Data and data derived therefrom), and during and after the Term of this Agreement, Sherpa may: (i) use such data and information to improve and enhance the Services and for other development, diagnostic and corrective purposes in connection with the Services and other Sherpa offerings; and (ii) disclose such data solely in aggregated or other de-identified form in connection with its business. 

6. INTELLECTUAL PROPERTY OWNERSHIP; LICENSE; BRANDING

6.1. Ownership of Services; Tools. As between the Parties, all right, title and interest in and to the Services, Sherpa Materials, Third Party Tools, and any Modifications to any of the foregoing, including all Intellectual Property Rights and other proprietary rights therein, are and will remain the sole and exclusive property of Sherpa and the respective third party rights holders. Except for any limited express licenses granted herein, this Agreement does not grant any Intellectual Property Right or license under any Intellectual Property Right in or to the Services, Sherpa Materials, or Third Party Tools. Partner shall comply with all reasonable requests made by Sherpa to protect the rights of Sherpa and such third party rights holders in and to the Services, Sherpa Materials and Third Party Tools.

6.2. Trademark License. During the term of this Agreement, each Party grants to the other Party a limited, non-exclusive, non-transferable, royalty-free license to use and display the name, logo, and/or taglines (“Marks”) as follows: each Party may, at such Party’s discretion: (i) identify the other as an “Partner” and describe the parties’ business relationship in general terms; (ii) advertise via a hyperlink from an appropriate area within its website to the other Party’s home page; and (iii) display the other Party’s Marks on and in its website, marketing materials, presentations and pitch decks (in accordance with such Party’s guidelines for the use of such), in each case solely in connection with its performance of this Agreement. Except as explicitly provided for hereunder, neither Party shall use the other Party’s Marks for any commercial purpose without the prior written consent of such Party. Partner shall ensure that all copies of Sherpa’ company names and logos are exact copies with respect to colour, style and all other details.

6.3. Ownership of Marks/Goodwill. Partner acknowledges and agrees that the Sherpa Marks are and will remain the sole and exclusive property of Sherpa. Neither Party will acquire any right, title, or interest in, to or associated with (including any goodwill in) the Marks of the Other Party other than the limited license to use those Marks pursuant to this Agreement. 

6.4. Trademark Restrictions. Neither Party shall use a Mark of the other Party with any disparaging, unlawful or derogatory materials nor use the other Party’s Marks in a manner that could diminish or otherwise damage the other Party’s goodwill in the Marks. Sherpa shall have the right to modify, delete or substitute alternative marks for the Sherpa Marks at any time in its sole discretion.

7. GENERAL REPRESENTATIONS AND WARRANTIES; DISCLAIMERS

7.1. General Representations and Warranties. Each Party represents and warrants to the other Party that: (a) it is duly organized, validly existing and in good standing as a corporation or other entity under the laws of the jurisdiction of its incorporation or other organization; (b) it has the full right, power and authority to enter into this Agreement; (c) the execution of this Agreement by its representative whose signature is set forth at the end of this Agreement has been duly authorized by all necessary corporate or organizational action of such party; and (d) when executed and delivered, this Agreement will constitute the legal, valid and binding obligation of such Party, enforceable against such Party in accordance with its terms.

7.2. DISCLAIMERS.

1. SHERPA DOES NOT ACT AS A REPRESENTATIVE OF OR IN ANY WAY AFFILIATED WITH ANY GOVERNMENT OR GOVERNMENTAL AUTHORITY. SHERPA OPERATES AS A THIRD PARTY OFFERING TOOLS TO FACILITATE EVISA AND ETA APPLICATIONS OF END CUSTOMERS. SHERPA DOES NOT WARRANT OR GUARANTEE PERFORMANCE ON BEHALF OF GOVERNMENT OR GOVERNMENTAL AUTHORITY.
2. EXCEPT AS EXPRESSLY SPECIFIED HEREIN, THE SERVICES, SHERPA MATERIALS, THIRD PARTY TOOLS, OUTPUT DATA, CLIENT-OWNED DELIVERABLES (AS DEFINED IN SCHEDULE D), AND ANY OTHER PRODUCTS AND SERVICES PROVIDED OR MADE AVAILABLE BY SHERPA TO PARTNER, ARE PROVIDED “AS IS” AND “AS AVAILABLE”. SHERPA DOES NOT WARRANT THAT THE SERVICES, SHERPA MATERIALS, THIRD PARTY TOOLS, OUTPUT DATA, CLIENT-OWNED DELIVERABLES, OR ANY OTHER PRODUCTS AND SERVICES PROVIDED OR MADE AVAILABLE BY SHERPA TO PARTNER, WILL BE UNINTERRUPTED, SECURE, FREE OF HARMFUL CODE, OR ERROR-FREE, OR THAT ALL ERRORS CAN OR WILL BE CORRECTED; NOR DOES SHERPA MAKE ANY WARRANTY AS TO THE RESULTS THAT MAY BE OBTAINED FROM USE OF THE SERVICES, SHERPA MATERIALS, THIRD PARTY TOOLS, OUTPUT DATA, CLIENT-OWNED DELIVERABLES, OR ANY OTHER PRODUCTS AND SERVICES PROVIDED OR MADE AVAILABLE BY SHERPA TO PARTNER. TO THE EXTENT PERMITTED BY APPLICABLE LAW, SHERPA HEREBY DISCLAIMS ALL EXPRESS, IMPLIED, COLLATERAL, COMMON LAW, OR STATUTORY WARRANTIES, REPRESENTATIONS AND CONDITIONS, WHETHER WRITTEN OR ORAL, INCLUDING ANY IMPLIED WARRANTIES OR CONDITIONS OF MERCHANTABILITY, MERCHANTABLE QUALITY, QUALITY, COMPATIBILITY, TITLE, NON-INFRINGEMENT, SECURITY, RELIABILITY, COMPLETENESS, QUIET ENJOYMENT, CURRENCY, ACCURACY, AVAILABILITY, ACCESSIBILITY, UNINTERRUPTED USE, INTEGRATION OR FITNESS FOR A PARTICULAR PURPOSE OR USE, OR ANY WARRANTIES OR CONDITIONS ARISING OUT OF COURSE OF DEALING OR USAGE OF TRADE. 
3. SHERPA SHALL MAKE ALL REASONABLE EFFORTS TO ENSURE THAT THE DATA OR INFORMATION PROVIDED TO PARTNER IS ACCURATE AND UP TO DATE. SUBJECT TO THE FOREGOING, SHERPA EXPRESSLY DISCLAIMS ANY REPRESENTATION, CONDITION OR WARRANTY THAT ANY DATA OR INFORMATION PROVIDED TO PARTNER IN CONNECTION WITH PARTNER’S USE OF THE SERVICES (OR ANY PART THEREOF) IS 100% ACCURATE.

‍

8. LIABILITY 

8.1. LIMITATION. IN NO EVENT WILL THE TOTAL AGGREGATE LIABILITY OF SHERPA IN CONNECTION WITH OR UNDER THIS AGREEMENT EXCEED SHERPA’S SHARE OF APPLICATION FEES (AS DEFINED IN ORDER FORM 1) DURING THE 12-MONTH PERIOD IMMEDIATELY PRECEDING THE EVENT GIVING RISE TO THE CLAIM. FOR GREATER CERTAINTY, THE EXISTENCE OF ONE OR MORE CLAIMS UNDER THIS AGREEMENT WILL NOT INCREASE THIS MAXIMUM LIABILITY AMOUNT. IN NO EVENT WILL SHERPA’S THIRD PARTY SUPPLIERS, LICENSORS OR PROVIDERS HAVE ANY LIABILITY ARISING OUT OF OR IN ANY WAY CONNECTED TO THIS AGREEMENT.

8.2. EXCLUSIONS. IN NO EVENT WILL EITHER PARTY BE LIABLE TO THE OTHER PARTY FOR ANY OF THE FOLLOWING IN CONNECTION WITH OR UNDER THIS AGREEMENT (A) INDIRECT, INCIDENTAL, SPECIAL, CONSEQUENTIAL, AGGRAVATED, EXEMPLARY OR PUNITIVE DAMAGES; (B) LOST SAVINGS, PROFIT, BUSINESS, DATA, USE, OR GOODWILL; (C) BUSINESS INTERRUPTION; (D) COSTS FOR THE PROCUREMENT OF SUBSTITUTE PRODUCTS OR SERVICES; (E) PERSONAL INJURY OR DEATH; OR (F) PERSONAL OR PROPERTY DAMAGE. NOTWITHSTANDING ANYTHING TO THE CONTRARY HEREIN, SHERPA SHALL NOT BE LIABLE FOR ANY LOSSES OR DAMAGES WHATSOEVER RESULTING FROM: (I) ANY ACTS, OMISSIONS OR FAILURES OF PARTNER, PARTNER SYSTEMS OR DISTRIBUTORS, INCLUDING ANY FAILURE TO SECURE AND SAFEGUARD PARTNER’S SYSTEMS OR ACCESS CREDENTIALS; (II) PROVISION OF THE SERVICES WHICH OCCURS OUTSIDE OF THE BOUNDARY OF SHERPA’S OWNED AND DIRECTLY OPERATED SYSTEMS (MEANING: THE POINT AT WHICH SHERPA’S OWNED AND DIRECTLY OPERATED INFRASTRUCTURE MEETS EITHER THE PUBLIC INTERNET OR THE ENDPOINT); OR (III) ANY MALFEASANT OR WILFUL ACT OR OMISSION BY PARTNER OR OF ANY THIRD PARTY.

8.3. CARVE-OUTS. THE LIMITATIONS ON AND EXCLUSIONS FROM LIABILITY IN THIS SECTION 11 DO NOT APPLY TO LIABILITY ARISING FROM A PARTNER’S BREACH OF SECTION(S) 4, 5, OR 6.

8.4. APPLICATION. THE LIMITATIONS AND EXCLUSIONS OF LIABILITY IN THIS SECTION 8 APPLY TO ALL CAUSES OF ACTION, WHETHER BASED IN CONTRACT, TORT OR OTHERWISE (INCLUDING FOR FUNDAMENTAL BREACH AND NEGLIGENCE), REGARDLESS OF CAUSE OF ACTION OR THEORY OF LIABILITY, EVEN IF ANY EXCLUSIVE REMEDY PROVIDED FOR HEREIN FAILS ITS ESSENTIAL PURPOSE, AND EVEN IF A PARTY IS ADVISED IN ADVANCE OF THE DAMAGES IN QUESTION OR EVEN IF SUCH DAMAGES WERE FORESEEABLE.

8.5. ACKNOWLEDGEMENT. THE PARTIES HAVE FREELY AND OPENLY NEGOTIATED THIS AGREEMENT, INCLUDING PRICING, IN THE KNOWLEDGE THAT THE LIABILITY OF THE PARTIES IS TO BE LIMITED IN ACCORDANCE WITH THE PROVISIONS OF THIS AGREEMENT.

9. INDEMNIFICATION; INFRINGEMENT

9.1. By Partner. Partner shall, at its expense, defend and hold harmless Sherpa and the Sherpa Associates from and against any and all claims, demands, suits, actions or proceedings by a third party (“Claims”), and indemnify Sherpa and the Sherpa Associates from and against any liabilities, losses, damages, costs, penalties and expenses (including reasonable lawyers’ fees) (“Losses”) suffered or incurred by Sherpa or any Sherpa Associate in relation to (a) Partner Data or Partner Marks; (b) Partner’s breach of Section 4 or Section 6; (c) any Partner Service; (d) Partner’s fraud or willful misconduct; or (e) any personal injury or damage to property. “Sherpa Associates” are Sherpa’s officers, directors, shareholders, agents, successors, and assigns. 

9.2. Limitations. Notwithstanding Section 8, Sherpa has no obligation hereunder and will be indemnified by Partner to the extent any Infringement Claim arises as a result of: (a) use of any of the Services, Sherpa Materials or Third Party Tools by Partner in violation of this Agreement; (b) any modification to any of the Services, Sherpa Materials, Third Party Tools or Partner-Owned Deliverables by a party other than Sherpa or its authorized agents, unless such modification is contemplated by any Order Form; (c) any combination by Partner of any of the Services, Sherpa Materials, Third Party Tools or Partner-Owned Deliverables with any computer program, software, hardware or equipment not provided by Sherpa; or (d) use of any of the Services, Sherpa Materials, Third Party Tools or Partner-Owned Deliverables after Sherpa reasonably notifies Partner to discontinue such use in connection with an actual or potential Infringement Claim or after the Services have been terminated.

10. SUSPENSION

10.1. Suspension. Sherpa may immediately suspend or disable Partner’s (and its Authorized Developers’) use and/or receipt of any Services, Sherpa Materials, and/or Third Party Tools for any reason at any time.

11. MISCELLANEOUS PROVISIONS

11.1. Insurance. Sherpa, at its own expense, shall maintain sufficient insurance coverage to enable it to meet its obligations created by this Agreement and by law. Sherpa agrees to keep in full force and effect and maintain these policies at its sole cost and expense during the Term of this Agreement. Upon Partner's request, Sherpa shall provide Partner with certificates of insurance evidencing all of the above coverage, and shall provide Partner with certificates of insurance evidencing renewal or substitution of such insurance thirty (30) days prior to the effective date of such renewal or substitution.

11.2. Feedback. Partner may from time to time provide suggestions, comments or other feedback ("Feedback") to Sherpa with respect to the Services, Sherpa Materials, Third Party Tools or Output Data. All Feedback is and shall be given entirely voluntarily. Feedback, even if designated as confidential, shall not, absent a separate written agreement, create any confidentiality obligation for Sherpa. Sherpa is and shall be free to use, disclose, reproduce, license or otherwise distribute, and exploit the Feedback provided to it as it sees fit, entirely without obligation or restriction of any kind on account of intellectual property rights or otherwise.

11.3. Non-Exclusive Agreement. This Agreement shall not prevent Sherpa from entering into similar agreements with third parties, or from providing Services to third parties. 

11.4. Independent Contractors. The Parties acknowledge and agree that they are independent contractors and will have no power, nor will either Party represent that it is has any power, to bind the other Party or to assume or to create any obligation or responsibility, express or implied, on behalf of the other Party or in the other Party's name. This Agreement will not be construed as constituting the Parties as partners, joint venturers or agents or to create any other form of legal association that would impose liability upon one Party for the act or failure to act of the other Party.

11.5. No Third Party Beneficiaries. Nothing in this Agreement is intended to confer on any Party other than Sherpa, Partner and their permitted assigns any benefits, rights or remedies.

11.6. Force Majeure. Sherpa will not be liable for any delay in performance or failure to perform due to any Force Majeure Event. 

11.7. Export. Partner will comply with all export laws and regulations that may apply to its access to or use of the Tools.

11.8. Rights and Remedies. Except as expressly specified in this Agreement, in the event of any breach of this Agreement, the rights and remedies of the Parties provided for in this Agreement shall not be exclusive or exhaustive and are in addition to any other rights and remedies available at law or in equity. The Parties agree that in the event of any breach or threatened breach of Sections 4, 5, or 6, money damages would be an inadequate remedy and the affected Party shall be entitled to seek injunctive relief, without the need to post a bond or other security.

11.9. Governing Law; Venue. This Agreement shall be governed by and construed in accordance with the laws of the Province of Ontario, Canada without reference to the conflicts of law principles. This Agreement shall not be governed by the United Nations Convention of Contracts for the International Sale of Goods or the International Sale of Goods Act (Ontario), as amended, replaced or re-enacted from time to time, the application of which is hereby expressly excluded. The exclusive venue for all claims arising out of or in connection with this Agreement shall be in Toronto, Ontario, Canada but the parties agree that Sherpa may seek equitable relief in any venue it so chooses.

11.10. Actions. Except to the extent precluded by applicable law, any parties to an action brought hereunder shall be individually named, and Partner hereby waives any right it may have to litigate any such matter on a class or consolidated basis, or on bases involving disputes brought on a purported representative capacity.

11.11. Entire Agreement; Amendment. This Agreement constitutes the entire agreement between the Parties and supersedes all previous agreements, promises, and representations, whether written or oral, between the Parties with respect to the subject matter hereof. This Agreement may not be modified except in a written document signed by the Parties.

11.12. Waiver; Severability. No waiver of any provision of this Agreement is binding unless it is in writing and signed by all Parties to this Agreement entitled to grant the waiver. If any provision of this Agreement is deemed contrary to applicable law or unenforceable by a court of competent jurisdiction, the remaining terms and conditions of this Agreement shall be unimpaired and the Parties shall substitute a valid, legal and enforceable provision as close in legal and economic consequence as possible to the provision being struck or considered unenforceable. If the limitation of liability set forth in this Agreement is limited by law, then Sherpa’s liability will be limited to the greatest extent permitted by law

11.13. Headings; Interpretation; Language. The section and subsection headings used in this Agreement are for reference and convenience only, and shall not affect in any way the meaning or interpretation of the Agreement. Where the word “including” or “includes” is used herein, it means “including without limitation” or “includes without limitation”, respectively. The Parties acknowledge that they have expressly required that this Agreement and all related documents be drafted in the English language. Les parties reconnaissent avoir expressément exigé que le présent convention et tous les documents connexes soient rédigés en langue anglaise.

11.14. Notices. Any and all notices required to be delivered hereunder shall be sent by email to the e-mail address set out in the recitals to this Agreement, with a copy to any individuals with whom the Parties typically communicate (“Email Notification”), or by registered or certified mail, postage prepaid, return receipt requested or by nationally-recognized overnight courier service to the address set out in the recitals to this Agreement, with a copy to any individuals with whom the Parties typically communicate (“Mail Notification”). Any such notification shall be deemed effective: (i) upon transmission when delivered by Email Notification; or (ii) when delivered by Mail Notification. Notices to Sherpa shall be addressed to “notices@joinsherpa.com”. Notices to Partner shall be addressed to the provided email address collected during sign up. Either Party may change its address for notice by giving notice of such address change in the manner provided herein.

11.15. Survival. Notwithstanding the termination or expiry of this Agreement, all obligations which either expressly or by their nature are to continue after the termination or expiry of this Agreement shall survive and remain in effect, including Sections 4, 5, 6, 7, 8, and 9.

SECTION 2 - DEFINITIONS

In the Agreement, the following capitalized terms have the meanings set out below:

1. “Affiliate” means any entity that directly or indirectly controls, is controlled by, or is under common control with the subject entity. "Control", for purposes of this definition, means direct or indirect ownership or control of more than 50% of the voting interests of the subject entity;
2. “Applications” means the Sherpa software application(s), and all Modifications of the foregoing, that Sherpa uses to facilitate eVisas and eTAs;
3. “Application Fees” means the fees payable by End Customers to Sherpa for use of the Applications;
4. “Authorized Developers” means those employees, agents, and independent contractors of Partner that are authorized by Partner to access the Tools;
5.  “Partner Data” means information, data and other content, in any form or medium, which is transmitted directly or indirectly by Partner, an Authorized Developer, or an End Customer to Sherpa by or through the Services; 
6. “Partner Systems” means Partner’s and any Authorized Developer’s information technology infrastructure, including computers, software, hardware, databases, electronic systems), networks, telephones, telecommunications connections, whether operated directly by Partner or any Authorized Developer or any third party providers or Distributors;
7. “Sherpa Disabling Device” means any software, hardware or other technology, device or means (including any back door, time bomb, time out, drop dead device, software routine or other disabling device) used by Sherpa or its designee to disable Partner’s or any Authorized Developer’s or End Customer’s use of the Services automatically with the passage of time or under the positive control of Sherpa or its designee;
8. “Sherpa Materials” means the Applications, Tools, Documentation, and Sherpa Systems and any and all other information, data, documents, materials, works and other content, devices, methods, processes, hardware, software and other technologies and inventions, including any Work Product, technical or functional descriptions, requirements, plans or reports, that are provided or used by Sherpa or any subcontractor or other third party provider of Sherpa in connection with the Services or otherwise comprise or relate to the Services or Sherpa Systems. For the avoidance of doubt, Sherpa Materials include any information, data or other content derived from Sherpa’s monitoring of Partner’s use of the Services;
9. “Sherpa Systems” means the information technology infrastructure used by Sherpa in performing the Services, including all computers, software, hardware, databases, electronic systems;
10. “Documentation” means any written specifications, manuals or instructions for the Services that Sherpa specifically provides or makes available for Partner, as well as the then-current general minimum Partner System requirements as published by Sherpa (as may be updated from time-to-time);
11. “Distributor” means a third party distributor or vendor over whose network or through whose services Partner uses the Services;
12. “Endpoint” means the outermost point of Sherpa’s APIs;
13. “Feedback” means suggestions, comments, or other feedback provided by Partner to Sherpa with respect to the Services;
14. “Fees” means the Tools Fees and Integration Services Fees payable by Partner, in each case as specified herein, and does not include Application Fees;
15. “Force Majeure” means any occurrence beyond the reasonable control of Sherpa or its subcontractors, sources or third party providers, including, acts of God, disasters, fires, floods, earthquakes, explosions, riots, war, terrorism, sabotage, nuclear incidents, act of government, Internet or telecommunication service provider failures or delays, communication line or power failures, or failure, denial of service attack, cloud service failure or downtime, inoperability or destruction of any computer equipment or software;
16. “Harmful Code” means any software, hardware or other technology, device or means, including any virus, worm, malware or other malicious computer code, the purpose or effect of which is to permit unauthorized access to, or to destroy, disrupt, disable, distort, or otherwise harm or impede in any manner any (i) computer, software, firmware, hardware, system or network or (ii) any application or function of any of the foregoing or the security, integrity, confidentiality or use of any data processed thereby. Harmful Code does not include any Sherpa Disabling Device;
17. “Intellectual Property Rights” means all intellectual property and other proprietary rights, including all rights provided under trade secret law, patent law, copyright law, trademark or service mark law, design patent or industrial design law, semiconductor chip or mask work law, and any other statutory provision or common law principle which may provide a right in either ideas, formulae, algorithms, concepts, inventions or know-how, whether registered or not and including all applications therefor;
18. “Modifications” means any enhancements, changes, corrections, improvements, translations, adaptations, revisions, developments, new versions, upgrades or updates; and “Modify” shall mean the creation of any of the foregoing;
19. “Order Form” means the form set out in Schedule B, or any additional order form that references this Agreement once executed by both parties. 
20. “Output Data” means the eVisas and eTAs, and related reference numbers, directly output by the Tools; 
21. “Participating Transaction” means a response from a governmental authority regarding an eTA or eVisa to an End Customer, the application for which, for the transaction in question, was initiated via a Tool accessed by the End Customer via the Partner Services.
22. “Personal Information” means information that (i) is disclosed or transferred by Partner, Authorized Developers or End Customers to Sherpa pursuant to this Agreement or is otherwise obtained, used, stored, generated, or produced as a result of the use of the Tools; and (ii) identifies an individual, such as an individual's social security number, social insurance number, passport number, or other government issued number, date of birth, home address, telephone number, email address, credit card information, or a person's name in combination with any other of the elements listed herein;
23. “Integration Services” means customization, integration, training, consulting, development and other Integration Services identified from time to time in writing on a relevant Order Form, and any Modifications to such services, but does not include Tools or Support;
24. “Integration Timeline” means the time between the Effective Date and a day where End Customers are able to use Sherpa’s Applications, or their effects, via Partner’s products;
25. “Integration Services Fees” means the fees payable by Partner to Sherpa for the Integration Services, as specified herein;
26. “Services” means the Tools, Support, and Integration Services, and does not include Applications;
27. “Service Fees” means the fees payable by Partner to Sherpa for the Services, as specified in an Order Form;;
28. “Tools Fees” means the fees payable by Partner to Sherpa for use of the Tools, as specified in an Order Form;
29. “Support” means, with respect to the Tools, the support services set out in the Service Level Agreement (link provided in full in Appendix A), and any Modifications thereto. For clarity, Support does not include Integration Services, hardware and related supplies and support thereof, and any onsite (e.g. onsite at a Partner location) support;
30. “Third Party Tools” means the third party tools, software applications, services, content, materials, information, documents, data, specifications, products, infrastructure, equipment or components of or relating to the Services that are procured by Sherpa and with which any or all of the Services interoperate or are part of or otherwise used in connection with the Services; 
31. “Work Product” has the meaning given to it in Schedule D.

SECTION 3 - COMMERCIAL TERMS

‍

1. Sherpa Product: Access to one (1) WebApp.
2. Fees: No monthly fee will apply to the use of Sherpa’s products.
3. Onboarding Services: Self-serve, with access to Sherpa knowledge base.
4. Technical Support: Without charge and within reason.
5. Languages: All languages supported by Sherpa.
6. Application Fee Split: Sherpa will retain 80% of the revenue on the Application Fees, with the other 20% going to Partner, as laid out in the Application Fee Example Table below. The Parties can agree to change the fees without the need for a new order, maintaining the Parties’ relative shares. Payment processing fees are not included, and will add only to the Total Fee column of the table.some text
   1. Application Fee Example Table:

7. Merchant of Record: Sherpa will collect payment in accordance with their Terms and Conditions, subject to change from time to time.
8. Distribution Schedule: Sherpa will only send Partner their period share by wire transfer on an annual basis once the Partner’s share is greater than or equal to $5,000.00 USD.
9. Partner Wire Information: Please send to accounts@joinsherpa.com.
10. Partner Wire Confirmation Email: Please send to accounts@joinsherpa.com.

SECTION 4 - ACCEPTABLE USE POLICY

1. General Restrictions re: Integration Services and Tools. Partner shall not do or attempt to do, and shall not permit any of its Authorized Developers or any third party to do, any of the following with respect to any or all of the Services, Sherpa Materials or Third Party Tools: (a) use them to provide services for or on behalf of any third party, or commercially exploit them in any way, including by operating as a service bureau, by time-sharing, or other multiple Authorized Developer basis, or by framing or mirroring any part of them; (b) sell, resell, license, sublicense, rent, lease, lend, copy, reproduce, distribute, redistribute, assign, transfer, publish, or make available any of them or any Intellectual Property Rights therein; (c) use them in any manner that competes with Sherpa, such as to build a competitive product or service or otherwise modify them or create derivative works or make derivative works based on them, including to build a product or service using any similar ideas, features, functions or graphics of them or to copy or modify any or all of them; (d) use any security testing tools in order to probe, scan or attempt to penetrate or ascertain their security, or to otherwise engage in denial of service attacks; (e) damage, destroy, disrupt, disable, impair, interfere with or otherwise impede or harm them, in any manner, or Sherpa’s provision of services to any third party, in whole or in part, including to use any API in a manner that exceeds reasonable request volume, constitutes excessive or abusive usage; (f) use them for purposes of monitoring their availability, performance or functionality, or for any other benchmarking, comparison or competitive purpose; (h) disclose or publish any result of their performance; (i) modify, reverse engineer, adapt, translate, decompile or otherwise derive their source code; (j) use any software in connection with them that may require any or all of them, or other intellectual property of Sherpa or its suppliers or licensors, to be disclosed or distributed in source code form, made available free of charge to recipients, or modifiable without restriction by recipients; (k) remove, modify or obscure any proprietary notices, labels or marks in or on any or all of them; or (l) use them in a manner inconsistent with this Agreement, or in a manner that is contrary to applicable law, rule or regulation or Intellectual Property Rights, including privacy and export laws.
2. Unauthorized Access or Use. Partner shall not gain, or attempt to gain, or permit any third party to gain, unauthorized access to the Tools, including through automated means not provided by Sherpa or through means other than access credentials. Without limiting the foregoing, Partner will not attempt to exceed or circumvent limitations on access, calls and use of any API. An Authorized Developer’s Access Method may not be shared with, or Authorized Developer identification reassigned to (unless reassigned as part of a concurrent Authorized Developer access right to a new individual replacing one who no longer requires ongoing use of the Services), any other Authorized Developer.
3. Partner Systems. Partner shall ensure that all Partner Systems (a) have antivirus protection with the most current patches and updates, and have been hardened for security by removing all unsecure and unnecessary services that may have the capability to extract, store or manipulate Sherpa’s Confidential Information or otherwise circumvent the security of the Services; (b) are configured in accordance with the “principle of least privilege”; and (c) will comply with any reasonable legal, technical and organizational security measures as may be specified by Sherpa from time-to-time.
4. Partner Data. Partner will not or attempt to, nor will it permit its Authorized Developer or any third party to, upload, input, transmit, activate, provide or make available via the Services to Sherpa or any Sherpa provider any Partner Data that (a) contains any Harmful Code; (b) is discriminatory, hateful, threatening, abusive, harassing, defamatory, libelous, obscene, deceptive, or fraudulent; (c) constitutes unsolicited commercial electronic messages, bulk e-mail, junk mail, or spam; (d) contains any personal or protected health information; (e) otherwise violates the Agreement; or (f) infringes misappropriates or otherwise violates any Intellectual Property Rights, right of confidentiality, right of privacy, right of publicity or other rights of any third party, or violates any applicable law, rule or regulation.

‍