Rue La La is a platform that reaches over 14 million Members. We have a legacy of partnership with some of the most recognized and aspirational brands. Our engaging approach to retail manifests in a captivating e-commerce destination that strategically supports its brand partners and inspires our Members.

Each day, Rue La La Members discover curated Boutiques filled with coveted offerings at 30–70% off, from women’s and men’s clothing and accessories to clothes and toys for kids, home décor, and exclusive destinations and experiences.

Founded in 2008, Rue La La is a multi-device platform with over 850K unique visitors per week and 60% of sales completed on mobile devices. We are ranked #11 on Internet Retailer’s 2014 Mobile 500 List and were recognized as the 2012 Mobile Merchandiser of the Year by Mobile Commerce Daily. The company is headquartered in Boston, MA.

Our success doesn’t stop at strong relationships with brand partners and Members. The Rue La La Affiliate Program centers on a competitive commission structure that combines flat cost per lead and revenue share. We offer our Affiliate partners access to a robust portfolio of 120+ unique Boutiques each week in addition to exclusive Affiliate Boutiques.

Our company-wide emphasis on communication and personalization is critical to the Affiliate Program, optimizing mutual success, and inspiring a life of style

MASTER AGREEMENT

This Master Agreement (“Agreement”) is made between RueLaLa.com, a division of Retail Convergence.com, LP (“Merchant”) and You (also referred to as “Publisher”).

BACKGROUND

Publisher and Merchant are each enrolled in the Pepperjam Network.

Publisher and Merchant each desire to establish the general terms and conditions which shall govern advertising and payment arrangements between Publisher and Merchant which result from their participation in the Pepperjam Network. BY CLICKING ON THE “ACCEPT” BUTTON AND/OR PARTICIPATING IN THE RUE LA LA AFFILIATE PROGRAM (THE “AFFILIATE PROGRAM”) THROUGH the Pepperjam Network, YOU ACKNOWLEDGE THAT YOU HAVE READ THE TERMS OF THIS AGREEMENT AND AGREE TO BE BOUND BY THIS AGREEMENT. IF YOU DO NOT AGREE WITH ANY OF THE TERMS AND CONDITIONS SET FORTH HEREIN, DO NOT CLICK THE “ACCEPT” BUTTON OR PARTICIPATE IN THE AFFILIATE PROGRAM.

TERMS AND CONDITIONS

In consideration of the promises set forth below, we agree as follows:

1. Offers and Engagements.

1.1. From time to time, Merchant may post on Pepperjam offers to pay to other participants a specified payment in return for certain advertising services leading to a Qualifying Link (as defined in Section 3 below). If such offers receive an identification number from Pepperjam they shall be deemed to be an “Offer” for purposes of this Agreement.

1.2. If an Offer made by one party is accepted by the other party in accordance with the Offer’s terms via Pepperjam, an “Engagement” will have been formed. Each Engagement shall have the same identification number as the original Offer that led to the Engagement and shall be governed by the terms and conditions of this Agreement. However, in the event of any inconsistency between the terms of the specific Engagement and the terms of this Agreement, the terms of the Engagement shall govern.

1.3. At any time, Merchant may with or without notice (a) change, suspend or discontinue any aspect of an Offer or an Engagement or (b) remove, alter, or modify any graphic, button, text link, ad copy, creative or other content or banner ad submitted by Merchant or provided by Merchant directly to Publisher (the “Merchant Content”) for an Offer or an Engagement or otherwise. Publisher agrees to promptly implement any request from Merchant to remove, alter or modify any Merchant Content that is being used by Publisher as part of an Engagement.

1.4 To be eligible to be a Rue La La Affiliate, Publisher must operate a web site that has been approved by Merchant, and Publisher and Publisher’s web site must comply with the terms of this Agreement. Merchant reserves the right at any time to remove, suspend or terminate Publisher from the Rue La La Affiliate Program if it determines that Publisher’s web site is not approved by Merchant, as determined in Merchant’s sole discretion.

2. Publisher’s Responsibilities.

2.1. Publisher will link its site to areas within Merchant’s site using special URLs specified in the Engagement, as such URLs may be updated from time to time (the “Required URLs”). Publisher may post as many links to the Required URLs as it likes on Publisher’s site. The position, prominence and nature of links on the Publisher’s site shall comply with any requirements specified in the Agreement or the Engagement, but otherwise will be in the discretion of Publisher. Publisher shall not bypass, modify, circumvent, impair, disable or otherwise interfere with the Qualifying Links. Publisher will be responsible for posting the most current Merchant Content and Required URLs as such materials are updated from time to time by Merchant. Publisher will not alter, modify or otherwise change any Merchant Content without the express prior written approval of Merchant, which consent shall be in Merchant’s sole and absolute discretion. Publisher will use the Merchant Content only as provided by Merchant and only in the manner consistent with this Agreement.

2.2. Publisher agrees not to make any representations, warranties or other statements concerning Merchant, Merchant’s site, any of Merchant’s products or services, Merchant’s Content, Merchant’s site policies or third party brands/brand names sold or presented on Merchant’s site either currently or in the past (each a “Brand”), except as expressly authorized in the Engagement or by Merchant in writing, as determined in Merchant’s sole discretion.

2.3. Publisher is responsible for the operation and maintenance of the Required URLs on its site and will notify Merchant and Pepperjam of any malfunctioning of the Required URLs or other problems with Publisher’s participation in the Engagement. Merchant will respond promptly to all concerns upon notification by Publisher.

2.4 Publisher will not utilize any promotion, promotion code, coupon or other promotional opportunity that is not specifically authorized for the Publisher’s use by Merchant. Without limiting the foregoing, Publisher shall not establish or cause to be established any promotion that provides any rewards, points or compensation for transactions, or that allows third parties (“Sub-Affiliates”) to place Required URLs on its web site or in its e-mails, unless Publisher receives Merchant’s express prior written approval. Publisher shall be responsible for ensuring that each Sub-Affiliate meets the Pepperjam Network eligibility requirements (as established from time to time), is bound by and complies with Publisher duties (and where stated Sub-Affiliate duties) as specified in this Agreement, and for payment of payouts due to Sub-Affiliate that shall accrue. Publisher shall indemnify Merchant for all acts of Publisher’s Sub-Affiliates without limitation.

2.5 Publisher shall not publish, distribute, post, broadcast, display or permit any written/printed material that makes reference to Merchant, Merchant Content or Brands without first submitting such material to Merchant for approval and receiving Merchant’s express prior written consent, which shall be in Merchant’s sole and absolute discretion. Submissions for such approval may be made via e-mail to: rllaffiliate@ruelala.com.

2.6 Publisher’s web site shall not, in any way, copy or resemble the look and feel of Merchant’s web site, nor shall Publisher create the impression that Publisher’s web site is the Merchant’s web site or a part of the Merchant’s web site. Publisher shall not frame or permit the framing of any page of the Merchant’s web site.

2.7 Publisher shall be solely responsible for the development, operation, and maintenance of Publisher’s web site and, for all content (including URLs) appearing on Publisher’s web site. Publisher assumes sole responsibility for the accuracy of the content of Publisher’s web site, including, without limitation, descriptive claims, warranties, guarantees, and ensuring that the content on Publisher’s web site (“Publisher Content”) and that the operation of Publisher’s web site does not infringe or violate any right of Merchant or any third party. Publisher shall not place or cause to be placed on Publisher’s web site (including an email link on Publisher’s web site) to anything that (i) is obscene, threatening, malicious, or which infringes on or violates any applicable law or regulation or any proprietary, contract, moral, privacy or other third party right, or that otherwise exposes Publisher and/or Merchant to civil or criminal liability; or (ii) promotes discrimination based upon race, sex, religion, nationality, disability, sexual orientation or age. Further, Publisher shall (i) not engage in any illegal activity of any type, including but not limited to displaying illegal content on Publisher’s web site or offering any illegal good or service through Publisher’s web site; and (ii) comply with all applicable laws, rules and regulations, including, without limitation, CAN-SPAM, and any Internet or advertising regulations or policies of the United States in connection with Publisher’s web site. Publisher shall immediately notify Merchant of any demand, claim, or action by a third party insofar as such demand, claim or action alleges that Publisher’s web site, its content or its operation does not meet the requirements of this Section.

2.8 Publisher agrees that with respect to the Rue La La Affiliate Program, (i) it will not, without the express prior written consent of Merchant, participate in any other marketing channels other than text links and banners on Publisher’s web site; and (ii) without limiting the foregoing, that no emails or other form of electronic message or advertisement (collectively, an “Email”) will be sent by or on behalf of Publisher with respect to any Offer or Engagement unless Publisher obtains the express prior written consent of Merchant. Publisher agrees that Merchant may, upon reasonable written notice, audit (i) the lists and sources of the lists to which Publisher sends any Email relating to Merchant, Merchant Content or Brands (or otherwise identifying Merchant); and (ii) any Email relating to the Merchant, Merchant Content or Brands (or otherwise identifying Merchant).

2.9 Publisher agrees not to bid on any keyword in Pay per Click Search Engines (“PPCSEs”) that is a Merchant or Brand trademark or tradename (or a derivation or misspelling of a trademark, or any other word or term that is likely to cause confusion regarding its affiliation with Merchant or a Brand). Some examples of keywords with respect to Merchant include, but are not limited to: www.ruelala.com, rue la la.com, ruelala.com, wwwruelala.com, www.ruelala, ruelala, rue lala, rulala, etc. Merchant may, at its sole discretion, modify this list from time to time to include any other word or phrase.

2.10 Publishers agrees not to (i) use as display URLs any Merchant or Brand related trademarks or any variations thereof, including, but not limited to, the variations set forth in the list provided above; (ii) use the language “official site” or variations thereof in ad copy and from adding trademark symbols to ad copy; (iii) use promotional language such as references to specific coupons and/or free shipping offers in ad copy; (iv) use Brand names or other references thereto in any search engine; and (v) link directly to Merchant’s site from any search engine. Without limiting (i) above, all traffic must originate from Publisher’s web site, no usage of such display URLs is permitted.

2.11 Publisher agrees not to employ the use of any type of software download or technology which attempts to intercept or re-direct traffic or referral fees to or from, any other web site without the prior written consent of Merchant.

2.12 Publisher will not redirect traffic to Merchant’s site where its URL remains in the address when a customer attempts to bookmark, what appears to be, Merchant’s site, as determined by Merchant in its sole discretion.

2.13 Publisher must maintain a privacy policy which shall clearly and accurately describe the information collection and use practices of Publisher’s web site, including but not limited to, the type of information collected, how the information is collected and used, and with whom the information is shared. Publisher will also describe any information that is collected on its web site by any third party. Publisher’s web site must have a prominent link to Publisher’s privacy policy which Publisher hereby represents is, and shall remain for the term of this Agreement, consistent with best practices in the industry.

2.13 If Publisher is located in the State of California, Publisher agrees that: (i) it will not engage in any solicitation activities in California that refer potential customers to Merchant including, but not limited to, distributing flyers, coupons, newsletters and other printed promotional materials or electronic equivalents, verbal soliciting (e.g. in-person referrals), initiating telephone calls, and sending e-mails; (ii) no employee, owner, contractor or other representative of Publisher will solicit potential customers under the Agreement while such individual is physically present within the boundaries of California; and (iii) it will annually or upon request by Merchant, certify under penalty of perjury that Publisher has not engaged in any prohibited solicitations activities in California at any time during the previous year.

3. Payments.

3.1. Provided Publisher is not in breach of this Agreement, Merchant agrees to pay Publisher (via Pepperjam) as follows:
(a) For each Engagement that is identified by Merchant as a “CPA Engagement”: a flat fee as specified in the Engagement (the “CPA Amount”) if a visitor (i) successfully submits a completed registration form to become a valid, new member of Merchant; (ii) is confirmed by Merchant as a valid new member, as determined by Merchant in its sole discretion (a “Member”); and (iii) the Member has accessed Merchant’s site and registered as a Member directly via a Qualifying Link. In the event that a visitor is subsequently determined not to be a valid, new Member (an “Invalid Member”), then any CPA Amount paid to Publisher for such Invalid Member shall be refunded to Merchant and Merchant may, at its option, set off such CPA Amount for Invalid Members against any future Commissions that may be owed to Publisher.

(b) For each Engagement that is identified by Merchant as a “Revenue Share Engagement”: a percentage of Net Revenue as specified in the Engagement (the “Revenue Share Amounts”; together with any CPC Amount and any CPA Amount, the “Commission”). For purposes of this Agreement, “Net Revenue” means all dollars actually received by Merchant from completed sales of products through the Merchant’s site (expressly excluding through any mobile applications) by any Member when such Member accesses Merchant’s site directly from a Qualifying Link, less returns, shipping and handling fees, credit card fees, applicable sales taxes and cancellations applicable to such sales. The following additional terms apply to Revenue Share Engagements:

a. A transaction may be deemed to be resulting directly from a Qualifying Link tracked by Pepperjam from Publisher’s site to Merchant’s site if:

i. such purchase is made during the time period set forth by Merchant through The Pepperjam Network after the Member has initially entered Merchant’s site through the Qualifying Link (the “Revenue Share Time”); and

ii. Publisher’s tracked Qualifying Link is the most recent referral to the Merchant site prior to such purchase among all marketing channels tracked by Merchant.

b. For the avoidance of doubt: (x) after the Revenue Share Time, Merchant will not pay Revenue Share on any products that are added to a Member’s shopping bag after the Member has re-entered Merchant’s site (other than through a Qualifying Link through Publisher’s site), even if Member previously followed a link from Publisher’s site to Merchant’s site; and (y) if Merchant is able to track a referral from another marketing channel (e.g., another affiliate, paid search, banner advertisement or any other trackable marketing channel) that is more recent than Publisher’s Qualifying Link, then the resulting purchase will be deemed to not be directly resulting from Publisher’s Qualifying Link

c. If a Revenue Share Amount is paid hereunder and relates to any product that is later returned, the applicable Revenue Share will be deducted from the next applicable Commission payment hereunder. Upon termination of this Agreement, the final Revenue Share Amount may be withheld for a reasonable period of time to ensure that the correct amount is to be paid after making any adjustments that may be required, including, but not limited to, adjustments for returns. If any portion of such Revenue Share Amount cannot be recovered through a deduction, Merchant will invoice Publisher for such amount and Publisher agrees to pay this amount within thirty (30) days after receipt of such invoice.

3.2. A “Qualifying Link” is a link from Publisher’s site to Merchant’s site using one of the Required URLs or any other URL provided by Merchant for use in The Pepperjam Network if it is the last, direct link to the Merchant’s site that the visitor uses to register as a Member on the Merchant’s site.

3.3. Merchant shall have the sole right and responsibility for processing all orders made by Members. Publisher acknowledges that all agreements relating to membership and sales to Members shall be between Merchant and the Member.

3.4. All determinations of Qualifying Links and whether any Commission is payable will be made by Merchant and will be final and binding on Publisher.

3.5 Members that register with Merchant on or through the Merchant’s web site shall be deemed to be customers of Merchant and Merchant’s rules, policies, and operating procedures concerning customer orders, customer service, and the sale of products and services on or though Merchant’s web site shall apply to those customers. Merchant shall determine, in its sole and absolute discretion, the products and services to be sold on or through the Merchant’s web site and the prices to be charged for such products and services. Publisher acknowledges and agrees that Merchant may accept or reject, in its sole and absolute discretion, all requests for membership placed on or through the Merchant’s web site. Publisher further acknowledges and agrees that (i) it does not have any authority to make or accept any offer or commitment on behalf of Merchant, (ii) Merchant cannot, and does not, guarantee the availability and accessibility of Merchant’s web site, and (iii) Merchant is solely responsible for all pricing, fulfillment, cancellation, refunds and all other aspects of the Merchant web site and its products and services. All personal information obtained from Members and customers on the Merchant’s web site shall be the exclusive property of Merchant.

3.6 Publisher shall be responsible for any income and other taxes required under applicable laws arising out of monies received by Publisher pursuant to this Agreement.

4. Ownership and Licenses.

4.1. Publisher acknowledges and agrees that Merchant owns and shall retain all right, title and interest in the Merchant Content and Merchant’s names, logos, trademarks, service marks, trade dress, domain names, copyrights and proprietary technology, including, without limitation, those names, logos, trademarks, service marks, trade dress, copyrights and proprietary technology currently used or which may be developed and/or used by it in the future. Publisher represents and warrants that it will not take any action or assist any third party to take action challenging, contesting or otherwise inconsistent with Merchant’s ownership of or the validity of the foregoing materials and any goodwill and benefits accruing from the use therefrom will automatically vest in Merchant.

4.2. During the term of this Agreement, Merchant grants Publisher a revocable, non-exclusive, non-assignable, limited, worldwide license to use, reproduce and transmit its name, logos, trademarks, service marks, trade dress and proprietary technology (collectively, “Merchant’s trademarks”), as designated in the Engagement on Publisher’s site solely for the purpose of driving the registration of Members via the Qualifying Links. Except as expressly set forth in this Agreement or permitted by applicable law, Publisher may not copy, distribute, modify, reverse engineer, or create derivative works from the same. The license granted herein is conditioned upon Merchant’s right to exercise quality control over Publisher’s activities as a Publisher, which shall include the continuing right of Merchant to inspect Publisher’s place of business and business records, which business records shall be maintained at Publisher’s place of business, to ensure that the services of Publisher, rendered in connection with Merchant’s trademarks, meet Merchant’s specifications and are otherwise in conformity with the terms of this Agreement. Upon Merchant’s request or the termination of this Agreement or applicable Engagement, Publisher shall immediately cease and desist from all use of Merchant’s trademarks and Merchant Content. Publisher will not (i) use the Merchant Content or Merchant trademarks for any purpose other than to drive membership registration to the Merchant’s site; (ii) tamper with any copyright or other proprietary notices in any copy of any of the Merchant Content; or (iii) except as expressly permitted under this Agreement, negligently or intentionally allow any third party to use the Merchant Content or Merchant trademarks. Publisher shall not make any use of Merchant trademarks or Merchant Content in any manner that may cause confusion or deception or that is disparaging or that otherwise portrays Merchant in a negative light, in each case as determined by Merchant. Publisher may not sublicense, sell, distribute, disclose, assign, transfer or otherwise grant any such licenses for the use of the same, and any attempt to do so is void.

4.3. Publisher grants Merchant a non-exclusive, worldwide, royalty-free license to use, reproduce and transmit any graphic or banner ad submitted by Publisher solely for co-branding purposes or as a return link from Merchant’s site to Publisher’s site, if Merchant in its sole discretion determines to use the same. Merchant will remove such graphic or banner ad in its discretion or upon Publisher’s request.

5. Term and Termination.

5.1 This Agreement shall begin on the Effective Date and shall terminate on the date Publisher is no longer an Affiliate of Merchant pursuant to the Affiliate Program.

5.2. Either party may terminate any Engagement at any time by revoking their acceptance of the Engagement through Pepperjam. Termination of an Engagement shall not terminate this Agreement or any other Engagement.

5.3. Either party may terminate this Agreement at any time, for any reason, upon written notice of such termination to the other party and Pepperjam (such notice may be given by email or other electronic communication). Termination of this Agreement shall also terminate any outstanding Engagements. Merchant may terminate this Agreement immediately, without notice, if Merchant determines, in its sole discretion, that Publisher has breached its obligations pursuant to Section 2.

5.4 Upon any expiration or termination of this Agreement, the following Sections shall survive: Sections 2.8, 2.9, 2.10, 2.14, 5.4, 6, 7, 8, and 9.

5.5 In the event of a breach by Publisher that is not cured within the applicable cure period, if any, provided by Merchant, Merchant may in its sole discretion, provide lower or no compensation to Publisher, suspend or terminate Publisher from the Engagement, or pursue such other remedies as Merchant deems appropriate.

6. Representations.

6.1. Publisher represents and warrants that (a) it has the authority to enter into this Agreement and sufficient rights to grant any licenses granted hereby; (b) any material or Publisher Content which is provided to Merchant or on Publisher’s site will not (i) infringe on any third party’s copyright, patent, trademark, trade secret or other proprietary rights or right of publicity or privacy; (ii) violate any applicable law, statute, ordinance or regulation; (iii) be defamatory or libelous; (iv) be lewd, pornographic or obscene; (v) violate any laws regarding unfair competition, antidiscrimination or false advertising; (vi) promote violence or contain hate speech; or (vii) contain viruses, trojan horses, worms, time bombs, cancelbots or other similar harmful or deleterious programming routines; (c) all information that it provided in connection with becoming an Affiliate of Merchant is true and complete.

6.2. EXCEPT FOR THE REPRESENTATIONS CONTAINED IN THIS AGREEMENT, NEITHER PARTY MAKES ANY REPRESENTATIONS OR WARRANTIES TO THE OTHER PARTY, INCLUDING, BUT NOT LIMITED TO, ANY IMPLIED WARRANTIES OF MERCHANTABILITY OR FITNESS FOR A PARTICULAR PURPOSE.

6.3 MERCHANT MAKES NO REPRESENTATIONS OR WARRANTIES: (i) THAT ITS WEB SITE OR LINKS THERETO MEETS PARTNER’S REQUIREMENTS, THAT ITS WEB SITE WILL ALWAYS BE AVAILABLE, OR THAT IT WILL BE UNINTERRUPTED, TIMELY, SECURE OR OPERATED WITHOUT ERROR; OR (ii) WITH RESPECT TO THE PRODUCTS AND SERVICES SOLD ON OR THROUGH MERCHANT’S WEB SITE.

7. Indemnification.

7.1. Publisher hereby agrees to indemnify, defend and hold harmless the Merchant and its affiliates, directors, officers, employees and agents, from and against any and all liability, claims, losses, damages, injuries or expenses (including reasonable attorneys’ fees) in connection with or arising out of (i) a breach, or alleged breach, of any of its representations, warranties or obligations herein; (ii) the Publisher’s web site; or (iii) the Publisher’s Content. Merchant has the right to participate in any defense and /or to select and control legal counsel for the defense of any such claim, demand or action and for any negotiations relating to any such claim, demand or action; however, Publisher must approve any settlement of any such claim, demand or action to the extent that such settlement imposes any restrictions on or requires Publisher to contribute financially to such settlement. Participation or control by Merchant does not impact Publisher’s indemnity obligations.

8. Limitation of Liability.

8.1. EXCEPT FOR THE INDEMNITY OBLIGATIONS, IN NO EVENT SHALL EITHER PARTY BE LIABLE TO THE OTHER PARTY FOR ANY DIRECT, INDIRECT, SPECIAL, EXEMPLARY, CONSEQUENTIAL OR INCIDENTAL DAMAGES, EVEN IF INFORMED OF THE POSSIBILITY OF SUCH DAMAGES. NOTWITHSTANDING THE FOREGOING, PUBLISHER SHALL BE LIABLE TO MERCHANT FOR ANY AND ALL DAMAGES, LOSSES OR EXPENSES (INCLUDING ATTORNEYS’ FEES AND OTHER COSTS OF DEFENSE) INCURRED IN CONNECTION WITH ALL (INCLUDING THIRD PARTY) SUITS, CLAIMS, DEMANDS, OR LIABILITIES WHATSOEVER, IN LAW AND EQUITY, ARISING OUT OF OR RESULTING IN ANY WAY FROM ANY ACTUAL OR ALLEGED VIOLATION BY PUBLISHER OF SECTIONS 2, 4.2, 6.1, OR 9.1 OF THIS AGREEMENT. IN ANY EVENT, THE LIABILITY OF MERCHANT FOR ANY LOSS OR DAMAGES SUFFERED BY PUBLISHER IN CONNECTION WITH THIS AGREEMENT OR THE MERCHANT WEB SITE OR ANY FAILURE, ACT, OMISSION OR BREACH OF THIS AGREEMENT BY MERCHANT SHALL NOT EXCEED THE TOTAL AMOUNT OF COMMISSIONS PAID OR PAYABLE BY MERCHANT TO PUBLISHER UNDER THE RUE LA LA AFFILIATE PROGRAM DURING THE IMMEDIATELY PRECEDING SIX (6) MONTH PERIOD PRIOR TO THE DATE SUCH LIABILITY AROSE.

9. General.

9.1 Confidentiality. Each party agrees that during the course of this Agreement, information that is confidential or proprietary may be disclosed to the other party. Such information may include, but is not limited to, software, customer and user information, technical processes and formulas, source codes, product designs, sales, cost and other unpublished financial information, product and business plans, advertising revenues, usage rates, advertising relationships, projections, and marketing data (“Confidential Information”). Confidential Information shall not include information that the receiving party can demonstrate: (a) is, as of the time of its disclosure, or thereafter becomes part of the public domain through no wrongful act of the receiving party; (b) was known to the receiving party as of the time of its disclosure and is evidenced by receiving party’s written records; (c) is independently developed by the receiving party without use or access to the Confidential Information; or (d) is subsequently learned from a third party not under a confidentiality obligation to the providing party. The receiving party may disclose the disclosing party’s Confidential Information responsive to a request by a government agency in connection with an investigation, in response to a litigation discovery request, and in response to a subpoena, subject to prompt written notice to the disclosing party and reasonable efforts and cooperation in making such disclosure subject to a protective order or on a confidential basis. All Confidential Information shall remain the property of the disclosing party. The parties shall take reasonable steps to protect the other’s Confidential Information. The parties agree not to, except as required by the normal and proper course of performing under this Agreement, (a) use, (b) disclose, (c) copy, or (d) allow access to, the other’s Confidential Information without the express prior written consent of the disclosing party. These restrictions shall continue to apply as long as the confidential nature of the information is maintained and shall survive the expiration or termination of this Agreement. The Receiving Party shall advise in writing each of its employees and/or contractors of their obligations with respect to the Confidential Information and obtain the agreement (which may but need not be in writing) of said parties to abide by all of the provisions of this Agreement.

9.2. Independent Contractors. Each party is an independent contractor and shall have no authority to obligate or bind the other in any respect. Nothing in this Agreement or the Affiliate Program is intended to or will create any form of partnership, joint venture, agency, franchise, sales representative, or employment relationship.

9.3. Governing Law. This Agreement shall be governed by and interpreted in accordance with the laws of The Commonwealth of Massachusetts, United States of America without regard for its conflict of laws provisions. The parties consent to the federal and state courts located in the city of Boston in The Commonwealth of Massachusetts having jurisdiction over them and waive any objection to venue laid therein.

9.4 No Joint and Several Liability. Publisher acknowledges and agrees that neither Merchant, its subsidiaries, parents, other affiliates, directors, officers, employees, agents, successors or assigns (collectively, the “Merchant Parties”), shall be liable to any party, inc