Terms & Conditions

Buyer Subscription Agreement

(Elite Exchange Program- V5 - Effective July 1, 2011)

PLEASE READ THIS AGREEMENT CAREFULLY BEFORE SELECTING THE "I AGREE" BUTTON ASSOCIATED WITH THIS AGREEMENT. BY CLICKING ON "I AGREE," YOU, ON BEHALF OF YOURSELF, AND IF YOU ARE AN AUTHORIZED SIGNATORY FOR AN ENTITY THAT WILL BE USING THE ELITE EXCHANGE PROGRAM ("SERVICE") HOSTED BY THIS WEBSITE (cyclonesalespro.com) ("WEBSITE"), ON BEHALF OF YOUR ENTITY, ACKNOWLEDGE AND AGREE THAT:

  1. YOU HAVE READ AND UNDERSTAND ALL OF THE TERMS AND CONDITIONS OF THIS AGREEMENT;

  2. YOU (AND YOUR ENTITY, IF APPLICABLE) AGREE TO BE BOUND BY ALL OF THE TERMS AND CONDITIONS OF THIS AGREEMENT;

  3. THIS AGREEMENT IS THE LEGAL EQUIVALENT OF A SIGNED, WRITTEN CONTRACT BETWEEN YOU (AND YOUR ENTITY, IF APPLICABLE) AND CYCLONE SALES,LLC ("CYCLONE");

  4. ALL INFORMATION PROVIDED BY YOU TO CYCLONE TO DETERMINE YOUR QUALIFICATIONS TO PARTICIPATE AS A BUYER UNDER THE CYCLONE EXCHANGE PROGRAM IS TRUE, COMPLETE AND CORRECT IN ALL MATERIAL RESPECTS;

  5. AS BETWEEN YOU AND CYCLONE, CYCLONE AT ALL TIMES BE AND REMAIN THE SOLE OWNER OF ALL INTELLECTUAL PROPERTY RIGHTS IN AND TO THE WEBSITE AND THE SERVICE, AND YOU UNDERSTAND THAT YOU SHALL ACQUIRE ABSOLUTELY NO RIGHTS OR LICENSES IN OR TO THE WEBSITE OR THE SERVICE OTHER THAN THE LIMITED RIGHT TO UTILIZE THE SERVICE IN ACCORDANCE WITH THIS AGREEMENT;

  6. YOU SHALL COOPERATE WITH CYCLONE TO CREATE A USER AUTHENTICATION PROCESS TO ENSURE COMPLIANCE WITH THE PROVISIONS OF THIS AGREEMENT; AND

  7. IF AN ENTITY WILL BE USING THE SERVICE, YOU HAVE FULL AUTHORITY TO BIND, AND BY CLICKING ON "I AGREE" YOU SHALL BIND, YOUR ENTITY TO ALL OF THE TERMS AND CONDITIONS OF THIS USER AGREEMENT (AND "YOU" AS USED HEREIN SHALL ALSO REFER TO YOUR ENTITY).

IF YOU ARE NOT WILLING TO BE OR CANNOT BE BOUND BY ALL OF THE TERMS AND CONDITIONS OF THIS AGREEMENT, INCLUDING WITHOUT LIMITATION THE PRECEDING AGREEMENT AND ACKNOWLEDGEMENT, THEN DO NOT SELECT THE "I AGREE" BUTTON ASSOCIATED WITH THIS AGREEMENT. CYCLONE DOES NOT AND WILL NOT GRANT YOU ANY RIGHT OR LICENSE TO USE THE ELITE EXCHANGE PROGRAM SERVICE WITHOUT YOUR WILLINGNESS AND ABILITY TO BE BOUND BY ALL OF THE TERMS AND CONDITIONS OF THIS AGREEMENT, INCLUDING WITHOUT LIMITATION THE PRECEDING AGREEMENT AND ACKNOWLEDGEMENT.

You, as Buyer, hereby agree as follows:

  1. Recitals. Cyclone operates and manages the Service (the Cyclone Exchange) hosted at http://www.cyclonesalespro.com/pages/bylaws (the "Bylaws"). The Elite Exchange Program seeks to facilitate the purchase and sale of business leads ("Leads") by qualified buyers and qualified sellers ("Sellers") as more fully described in the Bylaws. Notwithstanding Buyer registering as a Buyer with the Service, Cyclone shall have the right to approve Buyers qualifications to participate in the service prior to Buyer's placing orders from any Seller. Buyer agrees to provide Cyclone any information reasonable required by Cyclone to evaluate Buyer's qualifications to participate in the service as a qualified Buyer.

  2. Subscription for Service. Customer hereby subscribes for the Service pursuant to the terms of this Agreement. In accordance with this subscription, Cyclone grants to Customer, and Customer accepts from Cyclone, for the term of this Agreement, a nonexclusive and nontransferable license to access the Service and use and display the contents of the Service consistent with this Agreement.

  3. Non Circumvention. Buyer hereby agrees not to circumvent Cyclone or this Agreement, whether during or for at least 1 year after the termination of this Agreement, by soliciting or attempting to market, buy or otherwise purchase any Leads from a Cyclone Seller directly or indirectly through any other broker, dealer or agent. As used herein, a "Cyclone Seller" shall refer to a provider of Leads who is registered with the Service as a Seller at any time while Buyer is registered with the Service; provided, however, a Cyclone Seller shall not include a provider of Leads with whom Buyer can verify (by tangible evidence) that Buyer had a business relationship purchasing and providing Leads prior to registration of Seller with the Service.

  4. Maintenance and Support. Cyclone shall provide maintenance and support for the Website and the Service as provided in Exhibit A, attached hereto.

  5. Compliance with Bylaws/Amendments. Buyer will at all times comply with all rules and restrictions set forth in the Bylaws. Buyer acknowledges and agrees that Cyclone may amend the Bylaws from time to time in its discretion. Cyclone shall notify Buyer of any amendments to the Bylaws and post any such amendments on the Website. Buyer understands and agrees that Cyclone may require that Customer observe additional terms and conditions.

  6. Compliance with Applicable Law. Cyclone does not guarantee that any Lead involving consumers are not registered on any Do-Not call List. Buyer is solely responsible for ascertaining the legal restrictions applying to any Leads purchased through the Elite Exchange Program and how it handles the Leads once they are delivered to Buyer. BUYER ASSUMES ALL RISK of liability under State or Federal "Do-Not-Call" regulations. Buyer will not use or disclose any consumer information in violation of any applicable State, Federal or local law, rule or regulation (including, without limitation, any applicable privacy laws and the Fair Credit Reporting Act).

  7. Purchase of Leads. Buyer may purchase Leads in the Elite Exchange Program through the purchase order process as described in the Bylaws and the user instructions and protocols on the Website. Buyer shall comply with all Purchase Orders entered into by Buyer in accordance with the Bylaws. At Cyclone's Discretion, the Buyer may be required to pay a transaction fee to Cyclone with respect to the purchase of Leads as described in the Bylaws and set forth in the Purchase Order ("Transaction Fee"). Buyer acknowledges that all Leads purchased by Buyer through Purchase Orders are sourced from Sellers in the Elite Exchange Program and that Cyclone will use Buyer's funds to purchase the requested Leads from these Sellers. All Nonconforming Leads (as defined in the Bylaws) may be returned and replaced as set forth in the Bylaws. Buyer understands that Buyer's remedies for nonconformance with a Purchase Order are limited as set forth in the Bylaws.

  8. Disclaimers. The Leads are provided "AS IS" and Cyclone makes no express or implied warranties or representations including, but not limited to, the implied warranties of merchantability and fitness for a particular purpose, with respect to the Service or to the Leads delivered through the Elite Exchange Program including, without limitation, warranties as to the quality of the Leads or the results that may be obtained from Buyer's use of the Leads. The Elite Exchange Program funnels Leads directly from Sellers to Buyer via the Website and Cyclone does not review or verify the Leads or in any way guarantee the accuracy, reliability or content of any information delivered by Sellers. Further, any earnings projections or illustrations set forth on the Website or in any other promotional materials distributed to Buyer by Cyclone are only projections and not guarantees of performance of success. Buyer acknowledges that Buyer has independently evaluated the desirability of participating in the Service and is not relying on any representation, guarantee, or statement other than as set forth in this Agreement, a Purchase Order and the Bylaws. Cyclone does not warrant that the Service is compatible with Customer's equipment or that the Website or the Service will be free of errors, viruses or any other harmful, invasive, or corrupted files, and is not liable for any damage Customer may suffer as a result of such destructive features or from interrupted service. Notwithstanding the foregoing disclaimer, Cyclone shall perform all commercially reasonable steps to protect the Service from viruses or any other harmful, invasive, or corrupted files. THE SERVICE, INCLUDING ALL CONTENT, SOFTWARE, FUNCTIONS, MATERIALS AND INFORMATION MADE AVAILABLE ON OR ACCESSED THROUGH THE SERVICE, IS PROVIDED "AS IS" AND "AS AVAILABLE" WITHOUT REPRESENTATIONS OR WARRANTIES OF ANY KIND WHATSOEVER EXPRESS OR IMPLIED, INCLUDING WITHOUT LIMITATION, NON-INFRINGEMENT, MERCHANTABILITY OR FITNESS FOR A PARTICULAR PURPOSE.  NEITHER CYCLONE NOR ITS CONTENT PROVIDERS WARRANT THAT THE FUNCTIONS, FEATURES OR CONTENT CONTAINED IN THE SERVICE WILL BE UNINTERRUPTED OR ERROR FREE, THAT DEFECTS WILL BE CORRECTED, OR THAT THE SERVICE IS FREE OF VIRUSES OR OTHER HARMFUL COMPONENTS; NOR DO THEY MAKE ANY WARRANTY OR REPRESENTATION AS TO THE ACCURACY OR RELIABILITY OF THE SERVICE, THE CONTENT THEREOF, THE MATERIALS, INFORMATION AND FUNCTIONS MADE ACCESSIBLE BY THE SERVICE, ANY PRODUCTS OR SERVICES OR HYPERTEXT LINKS TO THIRD PARTIES OR FOR ANY BREACH OF SECURITY ASSOCIATED WITH THE TRANSMISSION OF SENSITIVE INFORMATION THROUGH THE SERVICE OR ANY LINKED SITE.

  9. Indemnity. Buyer hereby agrees to defend, indemnify, save and hold Cyclone harmless from any and all demands, liabilities, losses, costs and claims, including reasonable attorneys' fees, asserted against Cyclone, that may arise or result from Buyer's breach of this Agreement or the Bylaws or Buyer's negligence or willful misconduct.

  10. Limitation of Liability. UNDER NO CIRCUMSTANCES, INCLUDING BUT NOT LIMITED TO NEGLIGENCE, SHALL CYCLONE OR ITS AGENTS AND REPRESENTATIVES BE LIABLE TO BUYER OR ANYONE ELSE FOR INDIRECT, INCIDENTAL, CONSEQUENTIAL, SPECIAL, PUNITIVE OR EXEMPLARY DAMAGES (SUCH AS, BUT NOT LIMITED TO, LOSS OF REVENUE OR ANTICIPATED PROFITS OR LOST BUSINESS) EVEN THOUGH CYCLONE HAS BEEN ADVISED SPECIFICALLY OF THE POSSIBILITY OF SUCH DAMAGES, ARISING FROM THE LEADS, THE SERVICE OR THE BREACH OF ANY PROVISION OF THIS AGREEMENT OR THE BYLAWS. IF APPLICABLE LAW DOES NOT ALLOW THE LIMITATION OR EXCLUSION OF LIABILITY OR INCIDENTAL OR CONSEQUENTIAL DAMAGES, THEN IN ANY EVENT, THE TOTAL LIABILITY OF CYCLONE TO BUYER FOR ALL DAMAGES, LOSSES AND CAUSES OF ACTION (WHETHER IN CONTRACT OR TORT, INCLUDING BUT NOT LIMITED TO, NEGLIGENCE) SHALL IN NO EVENT EXCEED THE GREATER OF (i) $10,000 OR (ii) TRANSACTION FEES PAID OR PAYABLE TO CYCLONE WITHIN SIX MONTHS OF THE TIME THE LIABILITY AROSE.

  11. Termination.

    1. Either party may terminate this Agreement for any or no reason in such party's sole discretion upon written notice to the other party; provided the parties will complete the terms of any outstanding, unfulfilled Purchase Order.

    2. Termination of this Agreement (i) shall not relieve the parties of any obligation accruing prior to such termination, including but not limited to, Buyer's obligations to pay any amounts then due Cyclone, (ii) shall not entitle Buyer to a refund of any amounts paid under this Agreement, and (iii) shall immediately terminate Buyer's participation in the Service (except as to the completion of any outstanding Purchase Order). Obligations which can reasonably be interpreted to survive the termination of this Agreement shall survive the termination of this Agreement, including, without limitation, Sections 8, 9, 10, 14, 15 and 18.

  1. Entire Agreement. This Agreement constitutes the entire agreement between the parties pertaining to the subject matter hereof, and supersedes any verbal conversations, other communications, and previous agreements, if any.

  2. Assignment. Buyer's obligations hereunder are personal and Buyer may not assign this Agreement, by operation of law or otherwise, to any other person or entity, without Cyclone's prior written consent. Any such attempted assignment or transfer shall be void and without effect.

  3. Governing Law and Venue. This Agreement shall be deemed to have been made in, and shall be construed pursuant to the laws of the State of California and the United States without regard to conflicts of laws or provisions thereof. Subject to the arbitration of disputes as provided in this Agreement, the parties hereby submit to the jurisdiction of, and waive any venue objection to, the United States District Court for the Central District of California and the Superior and Municipal Courts located in San Diego County, California, in any litigation arising out of this Agreement.

  4. Attorneys' Fees and Costs. The prevailing party to this Agreement shall be entitled to recover from the unsuccessful party all costs, expenses and actual attorneys' fees relating to the enforcement or interpretation of, or any litigation, arbitration or mediation relating to, this Agreement.

  5. Waiver. Cyclone's failure to enforce Buyer's strict performance of any provision of this Agreement will not constitute a waiver of Cyclone's right to subsequently enforce such a provision or any other provision of this Agreement.

  6. Force Majeure. Cyclone shall not be liable for any failure or delay in the performance of any obligation under this Agreement due in whole or in part to Force Majeure. For purposes of this Agreement, "Force Majeure" means circumstances beyond Cyclone's reasonable control, including, without limitation, acts of God, acts of government, flood, fire, earthquakes, civil unrest, acts of terror, strikes or other labor problems not involving Cyclone's employees, computer or telecommunications failures or delays arising from hardware or software not within Cyclone's possession or reasonable control.

  7. Confidential Information. The Leads are provided to Buyer in confidence and for Buyer's individual business use only. BUYER MUST KEEP ALL LEAD DATA CONFIDENTIAL. Buyer may use the Lead data provided only for the business purpose contemplated under this Agreement. Buyer may not forward, copy, or otherwise distribute in any form or media, any Lead to third parties. UNDER NO CIRCUMSTANCES IS BUYER AUTHORIZED TO RESELL OR OTHERWISE DISTRIBUTE, WHETHER BUYER IS COMPENSATED OR NOT, ANY LEADS SUPPLIED TO BUYER BY CYCLONE TO ANY OTHER THIRD PARTY.

  8. Independent Contractors. Each party hereby acknowledges that the parties shall be independent contractors and that the relationship between the parties shall not constitute a partnership, joint venture or agency. Neither party shall have the authority to make any statements, representations or commitments of any kind, or to take any action, which shall be binding on the other party, without the prior consent of the other party to do so.

  9. Notices. Any consent, notice or report required or permitted to be given or made under this Agreement to Buyer by email or other notice procedure provided by the Service addressed to Buyer using the information provided by Buyer when registering for the Service.

  10. Arbitration. By using the Service, you agree to submit any disputes arising from the use of the Service or this Agreement to final and binding arbitration administered by the American Arbitration Association under its Commercial Arbitration Rules ("Rules"), by one arbitrator appointed in accordance with the said Rules. Notwithstanding the Rules, however, such proceeding shall be located in the County of San Diego, State of California and governed by the laws of the State of California as set forth in this Agreement. Any award in an arbitration initiated under this clause shall be limited to monetary damages and shall include no injunction or direction to any party other than the direction to pay a monetary amount. Further, the arbitrator shall have no authority to award punitive, consequential or other damages not measured by the prevailing party's actual damages in any arbitration initiated under this section, except as may be required by statute.

Reminder: Cyclone may revise this Agreement or the Bylaws or other terms and conditions of the Service at any time by updating this posting. You should visit this page from time to time to review the then-current terms and conditions relating to your use of the Service as a Seller after such posting because they will be binding on you.


Exhibit A

Maintenance and Support Provisions

    1. Cyclone shall provide technical and related support by email and telephone between 9:00 a.m. to 4:00 p.m. Pacific Time, Monday to Friday, excluding Cyclone-designated company holidays ("Regular Business Hours") to allow registered users of the Service to seek assistance with use of the Service and to report any service failures.

    2. Cyclone will use commercially reasonable efforts to maintain Service availability 24/7 subject to routine maintenance and events outside the reasonable control of Cyclone. If a service failure is identified by Cyclone, Cyclone shall diligently commence to diagnose and correct the service failure and continue such effort until the service failure is remedied. If a service failure is reported outside of Regular Business Hours, Cyclone will address the failure as provided herein once Regular Business Hours resume.

    3. Routine maintenance will be performed during the hours of 12:00 a.m. PST to 4:00 a.m. PST. Cyclone may adjust the hours of its routine maintenance from time to time by providing at least 24 hours advance notice to registered users, provided, however, Cyclone shall use every reasonable effort to keep Routine Maintenance to 4 hours or less in any single day and to avoid having any Routine Maintenance performed during Regular Business Hours..

    4. Cyclone reserves the right, in its sole discretion, and from time to time in accordance with its normal procedures, to make changes to the Service, including changes in the delivery, format, content, medium and means of access, as long as such changes are not inconsistent with the terms and provisions of this Agreement.