GolfVites Program and Linking Agreement

This is an Agreement between Orbit Enterprises, Inc, d/b/a The Cybergolf Networks, a Washington corporation, ("Cybergolf”, “we”, “us” or “our”), and "Linking Party".

Definitions
“Cybergolf Materials” means all intellectual property with respect to the link, link formats, technical specifications, guidelines, the GolfVites Site or with respect to Cybergolf’s domain name, trademarks, trade dress, logos, copyrights, design, look and feel, including without limitation any content, graphics and other materials of any type appearing on or in the GolfVites Site or provided to you as provided in this Agreement.
“Laws” means all applicable laws, ordinances, rules, regulations, orders, licenses, permits, judgments, decisions or other requirements of any governmental authority that has jurisdiction.
"Linking Party" and “you” means the responsible party of the website linking to Cybergolf at the GolfVites Site.
“GolfVites Site” means, the website with the home page identified by the Homepage URL in the Registration Page. 
“Program” means the GolfVites Program that provides, in part, for a link from your site to the GolfVites Site to allow qualified subscribers access to the GolfVites hosted golf social network application.
"Registration Page" means the webpage on which the Linking Party entered the identifiable information required by Cybergolf to complete this Linking Agreement.
“Subscriber(s)” means those qualified and accepted subscribers that have signed up with Cybergolf to participate in the GolfVites social networking program.
"Your site" means the site with the URL designated as the “Link page URL” in the Registration Information form above that you will link to the GolfVites Site.

Participation and the Program
To participate in the Program, you must first submit the completed Registration Page.  Participation in the Program is limited to parties that lawfully can enter into and form contracts under applicable law.  We will notify you by email or facsimile of your acceptance or rejection in the Program, which is within our sole discretion.  Subscribers may join the Program directly through the GolfVites Site, other websites or through the link from your site.  All Subscribers are considered Cybergolf customers and all information provided by the Subscribers to the Program will be the confidential and proprietary information of Cybergolf.  Cybergolf agrees that, subject to the provisions of this Agreement, for each Subscriber that registers your site as their primary golf course location, it will provide to you the following Subscriber information (“Subscriber Information”): (a) Email address, (b) first and last name, and (c) zip code.  You may only use the Subscriber Information for the limited purposes and subject to the requirements set forth in this Agreement.

Subscriber Information. 
Until such time that you are notified by us or by the Subscriber to terminate further email or other messaging, you may use the Subscriber Information for the sole purpose of communicating with the Subscriber about your services, products and promotional offers.  Notwithstanding any provision to the contrary in this Agreement, in no event may you sell or share Subscriber Information with any other party.  Your obligations with respect to the Subscriber under this Agreement are limited only to those Subscribers and the Subscriber Information that you receive from us pursuant to this Agreement .  This Agreement is not intended to apply to your collection of information from the Subscriber in a manner or through methods unrelated to and independent from this Agreement. 

Links on Your Site
Once you have been notified that your site has been accepted into the Program, we grant you a revocable, non-exclusive, non-transferable, royalty-free license for the duration of the term of this Agreement, solely for purposes of facilitating potential Subscriber referrals from your site to the GolfVites Site, to provide a general link to the Hompage URL on the homepage of your site. 

Cybergolf may provide you with guidelines, text and graphical artwork to use in linking to the Homepage URL and for identifying your site as a Program participant, all of which is Cybergolf Material.  We grant you a nonexclusive, non-transferable, revocable right to use such Cybergolf Materials solely for the purposes set forth above.  You may not use any Cybergolf Materials for any other purpose without our express written permission.  You may not modify the Cybergolf Materials in any way.  You agree to follow our guidelines that we provide to you for use of the Cybergolf Materials, as those guidelines may change from time to time. We may revoke your license at any time by giving you written notice.

You acknowledge that, by participating in the Program and placing a link within your site, we may receive information from or about visitors to your site or communications between your site and those visitors. Your participation in the Program constitutes your specific and unconditional consent to and authorization for our access to, receipt, storage, use, and disclosure of any and all such information, consistent with our the policies and procedures set forth on the GolfVites Site.  You also acknowledge that as a participant in the Program, we may from time to time send you email updates about the Program. By participating in the Program, you consent to our sending you these email updates.

Ownership, Identification & Use
All rights not expressly granted herein are reserved by Cybergolf.  Except for the licenses granted under Section 4 above, you do not obtain any rights under this Agreement in any Cybergolf intellectual property, including, without limitation, any Cybergolf Materials.  You agree that all use of the Cybergolf Materials will inure to the benefit of Cybergolf. You shall promptly notify Cybergolf of any suspected infringement of or challenge to the Cybergolf Materials.  Cybergolf shall have the sole right to, and in its sole discretion may commence, prosecute, or defend, and control any action concerning the Cybergolf Materials. As between Cybergolf and Linking Party, all right, title and interest in and to  the Cybergolf Materials are owned by Cybergolf.

Your Site
You will be solely responsible for the development, operation, and maintenance of your site and for all materials on your site.  You agree to (a) maintain the quality of your site such that its content and activities conducted on your site remain current, in good taste, and appropriate for users of the Cybergolf Site, (b) ensure that your site accurately and adequately discloses, either through a privacy policy or otherwise, how you collect, use, store, and disclose data collected from visitors, (c) not to use your site in any manner that (i) violates or infringes any right of any third party or contains libelous material, (ii) promotes violence, discrimination based on race, sex, religion, nationality, disability, sexual orientation, or age, or (iii) promotes sexually explicit material or illegal activities.  Cybergolf disclaims all liability for these matters. .
If Cybergolf (or one of its affiliates) has a separate agreement with you to host or maintain your site, you hereby grant Cybergolf (or its affiliate) the right, but not the obligation, to take any action on your behalf, including modifying your site, to ensure that your site is in compliance with the provisions of this Agreement.
Updates, Contact and Revenue
From time to time, Cybergolf may modify, update or otherwise change URL's and/or the content and the way it is displayed on its website without prior notice to you.  Cybergolf may contact you from time to time by email or other means for the purpose of providing relevant information about linking to the GolfVites Site or this Agreement.  You are not entitled to share in and have no claim to any subscription, advertising or other revenues Cybergolf may realize in connection with the GolfVites Site

Indemnification
You agree to indemnify, defend (at Cybergolf's option) and hold Cybergolf and its affiliates, and their respective officers, directors, agents and employees (“Cybergolf Parties”), harmless from and against any and all liability, damages, losses, expenses (including attorneys' fees and expenses and allocable costs of in-house counsel), claims, demands, suits, fines or judgments, and costs and expenses incidental thereto, which may be suffered by, accrued against, charged to or recoverable from any Cybergolf Parties, arising out of or resulting from: (i) a claim that your site, or any other materials (tangible or intangible) provided by you to Cybergolf hereunder or any portion or use thereof, infringes or misappropriates any patent, copyright, trade secret, trademark or other proprietary right; or (ii) claims regarding the development, operation, maintenance, content of your site, or any statement, misstatement, representation or misrepresentation made by you.

Limitation of Liability
We will not be liable for indirect, special, or consequential damages (or any loss of revenue, profits, or data) arising in connection with this Agreement or the Program, even if we have been advised of the possibility of such damages. Further, our aggregate liability arising with respect to this Agreement and the Program will not exceed US $1,000.
 
Disclaimer of Warranty
We make no express or implied warranties or representations with respect to the Program or Cybergolf Materials (including, without limitation, warranties of fitness, merchantability, noninfringement, or any implied warranties arising out of a course of performance, dealing, or trade usage). In addition, we make no representation that the operation of the GolfVites Site will be uninterrupted or error-free, and we will not be liable for the consequences of any interruptions or errors.

Term and Termination
The term of this Agreement will begin upon our acceptance of your Program application and will end when terminated by either party. Either party may terminate this Agreement at any time, with or without cause, by giving the other party written notice of termination. Upon the termination of this Agreement for any reason, you will immediately cease use of, and remove from your site, all links to the GolfVites Site, and all of our trademarks, trade dress, and logos, and all other materials provided by or on behalf of us to you pursuant hereto or in connection with the Program.

Notices
All notices in connection with this Agreement shall be addressed as stated below and shall be deemed given on the day they are: (i) deposited in the U.S.A. mails, postage prepaid, certified or registered, return receipt requested; or (ii) sent by air express courier, charges prepaid or (iii) via email.

Cybergolf email:    help@cybergolf.com
Cybergolf Address:      13024 Beverly Park Rd.
            Suite 102
            Mukilteo, WA 98275


Compliance with Laws
As a condition to your participation in the Program, you agree that you will comply with all Laws, whether those Laws, are now in effect or later come into effect during the time you are a Program participant. Without limiting the foregoing obligation, you agree that as a condition of your participation in the Program you will comply with all Laws that govern marketing email, including without limitation, the CAN-SPAM Act of 2003 and all other anti-spam Laws.

Agreement and Modification
This Agreement contains the entire agreement of the parties with respect to the subject matter hereof and, and shall supersede and merge all prior and contemporaneous communications.  We may modify any of the terms and conditions contained in this Agreement, at any time and in our sole discretion, by posting a change notice or a new agreement on the GolfVites Site. Modifications may include, for example, changes in the scope of available referral fees, referral fee schedules, payment procedures, and Program rules. IF ANY MODIFICATION IS UNACCEPTABLE TO YOU, YOUR ONLY RECOURSE IS TO TERMINATE THIS AGREEMENT. YOUR CONTINUED PARTICIPATION IN THE PROGRAM FOLLOWING OUR POSTING OF A CHANGE NOTICE OR NEW AGREEMENT ON THE GOLFVITES SITE WILL CONSTITUTE BINDING ACCEPTANCE OF THE CHANGE.

Relationship
You and we are independent contractors, and nothing in this Agreement will create any partnership, joint venture, agency, franchise, sales representative, or employment relationship between the parties. You will have no authority to make or accept any offers or representations on our behalf. You will not make any statement, whether on your site or otherwise, that reasonably would contradict anything in this Section.

 Arbitration
Any dispute relating in any way to this Agreement (including any actual or alleged breach hereof), any transactions or activities under this Agreement or your relationship with us or any of our affiliates shall be submitted to confidential arbitration in Seattle, Washington, except that, to the extent you have in any manner violated or threatened to violate our intellectual property rights, we may seek injunctive or other appropriate relief in any state or federal court in the state of Washington (and you consent to non-exclusive jurisdiction and venue in such courts) or any other court of competent jurisdiction. Arbitration under this agreement shall be conducted under the rules then prevailing of the American Arbitration Association. The arbitrator's award shall be binding and may be entered as a judgment in any court of competent jurisdiction. To the fullest extent permitted by applicable law, no arbitration under this Agreement shall be joined to an arbitration involving any other party subject to this Agreement, whether through class arbitration proceedings or otherwise.

Miscellaneous
This Agreement will be governed by the laws of the United States and the state of Washington, without reference to rules governing choice of laws. A breach of this Agreement by you may cause Cybergolf irreparable damage that cannot be remedied in monetary damages in an action of law.  In the event of any breach that could cause irreparable harm to Cybergolf, or cause some impairment or dilution of its reputation, Cybergolf shall be entitled to an immediate injunction, in addition to any other legal or equitable remedies.  No waiver of any breach of any provision of this Agreement shall constitute a waiver of any prior, concurrent or subsequent breach of the same or any other provision hereof, and no waiver shall be effective unless made in writing and signed by an authorized representative of the waiving party.  If any provision of this Agreement shall be held by a court of competent jurisdiction to be illegal, invalid or unenforceable, the remaining provisions shall remain in full force and effect.  If either party employs attorneys to enforce any rights arising out of or related to this Agreement, the prevailing party shall be entitled to recover its reasonable attorneys' fees, costs, and other expenses.  You may not assign this Agreement or any license granted hereunder, by operation of law or otherwise, without our prior written consent. Subject to that restriction, this Agreement will be binding on, inure to the benefit of, and be enforceable against the parties and their respective successors and assigns. Our failure to enforce your strict performance of any provision of this Agreement will not constitute a waiver of our right to subsequently enforce such provision or any other provision of this Agreement.