Apex Golf Enterprises Publication Agreement

Apex Golf Enterprises, a division of Apex Mountain Holding Corporation (“Apex Golf”) Publishes a book containing golf course reviews based on its proprietary rating system and process (“BOOK”). “YOU” OR “YOUR” REFERS TO THE PERSON REVIEWING A GOLF COURSE FOR APEX GOLF’S BOOK ON GOLF COURSES. BY CLICKING THE “AGREE/ACCEPT" BUTTON, YOU ARE AGREEING TO BE BOUND BY THE TERMS OF THIS PUBLICATION AGREEMENT (“AGREEMENT”). IF YOU DO NOT AGREE TO THE TERMS OF THIS AGREEMENT, CLICK "DISAGREE/DECLINE.” APEX GOLF AND YOU OR YOUR ARE COLLECTIVELY REFERRED TO AS THE “PARTIES” AND INDIVIDUALLY AS A “PARTY.”

1. Publication. You agree to prepare a written review of a golf course for Apex Golf’s Book that is appropriate in length and character for the Book and meet Apex Golf’s editorial standards (“Review”). You further agree to deliver the Review to Apex Golf within seven business days after golfing the golf course. Apex Golf, in its own best judgment, will determine the suitability of the Review for the Book. Execution of this Agreement does not obligate Apex Golf to publish the Your Review.

2. Grant of Rights. In consideration of publication and for monetary or non-monetary compensation equaling the price of up to four rounds of golf at the golf course that is the subject of the Review, the Review shall be considered a “work made for hire,” as that term is defined in the Copyright Act of 1976, as amended. If for any reason the Review is not deemed a “work made for hire,” You hereby grant and assign to Apex Golf any and all rights in and to Your Review, now existing or hereafter developed. Apex Golf has the right to edit the Review and You hereby assign to Apex Golf the nonexclusive, worldwide right to use the Your name and likeness to promote and publicize Apex Golf or its publications.

3. Representations. You represent that the Review will be original and that You are the sole creator of the Review, that the Review is not subject to any existing copyright, and You have the authority to grant the rights in this Agreement; that publication of Your Review will not libel anyone or infringe upon or invade the rights of others; that Your have the full power to make this Agreement; and that the Review has not been published elsewhere in whole or in part. Should the Review contain copyrighted material of others, You undertake to obtain written permission from the copyright owner consistent with this Agreement and include the permission grant with Your review when submitted to Apex Golf for publication consideration.

4. Indemnification. You shall indemnify, defend, and hold Apex Golf, its shareholders, officers, directors, representatives, agents, employees, independent contractors, and any one acting on its behalf harmless from and against any and all claims, liabilities, demands, causes of action, damages, losses and expenses, including, without limitation, reasonable attorneys’ fees and costs, arising out of or in connection with any breach or alleged breach of the Your representations in Paragraph 3 and any cause of action brought against Apex Golf arising out of or relating to Your golfing at the golf course that is the subject of Your Review.

5. Equitable Remedies and Enforcement. The Parties acknowledge and agree that breach of any of the obligations set forth in Paragraph 3 of this Agreement shall cause irreparable injury and shall entitle Apex Golf to equitable relief or remedy. The pursuit or securing of any such equitable relief shall not prohibit or limit Apex Golf from seeking or obtaining any other remedy provided under this Agreement or by law. If any or all of the above covenants or agreements are held to be unenforceable because of the scope or duration of such covenant or agreement or the area covered thereby, the Parties agree that the court making such determination shall have the power to reduce the scope, duration and area of such covenant or agreement to the extent that allows the maximum scope, duration and area permitted by applicable law. The covenants, agreements and remedies provided herein are in addition to, and are not to be construed as a replacement for or limited by, the rights and remedies otherwise available to Apex Golf. You agree to pay Apex Golf for all costs, including, but not limited to, attorneys’ fees, incurred to enforce the terms of this Agreement.

6. Limitation of Liability. TO THE MAXIMUM EXTENT PERMITTED BY APPLICABLE LAW AND REGARDLESS OF WHETHER ANY REMEDY FAILS OF ITS ESSENTIAL PURPOSE, IN NO EVENT SHALL APEX GOLF OR ITS AGENTS, OFFICERS, DIRECTORS, EMPLOYEES, SUCCESSORS, ASSIGNS, OR AFFILIATES BE LIABLE FOR PERSONAL INJURY, OR ANY INCIDENTAL, SPECIAL, INDIRECT, CONSEQUENTIAL, OR PUNITIVE DAMAGES, WHATSOEVER, INCLUDING, WITHOUT LIMITATION, DAMAGES FOR LOSS OF PROFITS, LOST TIME, LOST SAVINGS, FOR BUSINESS INTERRUPTION, OR ANY OTHER COMMERCIAL DAMAGES OR LOSSES ARISING OUT OF OR RELATED TO YOUR GOLFING THE GOLF COURSE THAT IS THE SUBJECT OF YOUR REVIEW HOWEVER CAUSED, REGARDLESS OF THE THEORY OF LIABILITY (TORT, CONTRACT OR OTHERWISE) AND EVEN IF APEX GOLF HAS BEEN ADVISED OF THE POSSIBILITY OF SUCH DAMAGES. SOME JURISDICTIONS DO NOT ALLOW THE LIMITATION OF LIABILITY FOR PERSONAL INJURY, OR OF INCIDENTAL OR CONSEQUENTIAL DAMAGES, SO THIS LIMITATION MAY NOT APPLY TO YOU. IN NO EVENT, SHALL APEX GOLF’S TOTAL LIABILITY TO YOU FOR ALL DAMAGES (OTHER THAN AS MAY BE REQUIRED BY APPLICABLE LAW IN CASES INVOLVING PERSONAL INJURY) EXCEED THE AMOUNT OF MONIES YOU HAVE PAID TO GOLF THE GOLF COURSE THAT IS THE SUBJECT OF YOUR REVIEW. THE FOREGOING LIMITATIONS WILL APPLY EVEN IF THE ABOVE STATED REMEDY FAILS OF ITS ESSENTIAL PURPOSE.

7. Miscellaneous. This Agreement constitutes the entire Agreement between the Parties and supersedes any and all prior and contemporaneous oral or written understandings between the Parties relating to the Agreement’s subject matter. No modification of any provision in this Agreement will be valid unless in writing and signed by the Parties. This Agreement will be binding on, and will inure to the benefit of, the Parties, their successors, and permitted assigns of the Parties. You may not assign this Agreement without Apex Golf’s written consent. Apex Golf may assign this Agreement without Your permission. In the event that any provision of this Agreement is held to be unenforceable under applicable law, this Agreement will continue in full force and effect without such provision and will be enforceable in accordance with its terms. Any term of this Agreement may be waived by the Party entitled to the benefits thereof, provided that any such waiver must be in writing and signed by the Party against whom the enforcement of the waiver is sought. No waiver of any condition, or of the breach of any provision of this Agreement, in any one or more instances, shall be deemed to be a further or continuing waiver of such condition or breach. Delay or failure to exercise any right or remedy shall not be deemed the waiver of that right or remedy. This Agreement will be governed by and construed in accordance with the internal laws of the State of Minnesota, without giving effect to applicable principles of conflicts of law to the extent that the application of the laws of another jurisdiction would be required. With respect to any dispute, controversy, or claim arising out of or relating to this Agreement or the relationship between the Parties, the Parties agree and consent to jurisdiction of and exclusive venue in the United States District Court, District of Minnesota or Minnesota State Courts, Hennepin County, Fourth Judicial District.