Terms & Conditions

Seller 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 QUALIFIED SELLER UNDER THE ELITE EXCHANGE PROGRAM SERVICE 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 Seller, hereby agree as follows:

  1. Recitals. Cyclone operates and manages the Service (the Elite Exchange Program (hosted at www.cyclonesalespro.com). The Service is governed by the Elite Exchange Program Bylaws located at cyclonesalespro.com/pages/bylaws on the Website (the "Bylaws"). The Elite Exchange Program seeks to facilitate the purchase and sale of business leads ("Leads") by qualified buyers ("Buyers") and qualified sellers as more fully described in the Bylaws. Seller desires to participate in the Elite Exchange Program as a qualified seller pursuant to the terms of this Agreement and the Bylaws. Notwithstanding Seller registering as a Seller with the Service, Cyclone shall have the right to approve Seller's qualifications to participate in the Service as a qualified Seller prior to Seller's posting for sale any Leads with the Service. Seller agrees to provide Cyclone any information reasonably required by Cyclone to evaluate Seller's qualifications to participate in the Service as a qualified Seller.

  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. Seller 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, sell or otherwise distribute any Leads to a Cyclone Buyer directly or indirectly through any other broker, dealer or agent. As used herein, a "Cyclone Buyer" shall refer to a purchaser of Leads who is registered with the Service as a Buyer at any time while Seller is registered with the Service; provided, however, a Cyclone Buyer shall not include a purchaser of Leads with whom Seller can verify (by tangible evidence) that Seller had a business relationship purchasing and selling 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. Seller will at all times comply with all rules and restrictions set forth in the Bylaws. Seller acknowledges and agrees that Cyclone may amend the Bylaws from time to time in its discretion. Cyclone shall notify Seller of any amendments to the Bylaws and post any such amendments on the Website. Seller understands and agrees that Cyclone may require that Customer observe additional terms and conditions.

  6. Compliance with Applicable Law. Seller 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). Seller will not violate any State or Federal laws or regulations in connection with the generation and delivery of Leads, including but not limited to, State and Federal "Do-Not-Call" regulations. Seller is solely responsible for how it obtains and manages the Leads prior to delivering them to Cyclone.

  7. Lead Sales. Cyclone will purchase Leads from Seller through the purchase order process as described in the Bylaws and the user instructions and protocols on the Website. Seller shall comply with all Purchase Orders entered into by Seller, and deliver Leads purchased by Cyclone to Buyers, as described in the Bylaws. Seller acknowledges that Cyclone, through the Service, is acting solely as a dealer and that the terms and conditions of the purchase and sale of all Leads will be established by Seller and those buyers Seller chooses to sell Leads to, subject to the Bylaws and other terms and conditions of the Service. Seller agrees that Cyclone shall be entitled to a fee for facilitating the sale of Leads as set forth the in the Cyclone Fee Schedule (referred to in the Bylaws as a "Transaction Fee"), as amended from time to time, and located on the Website. Seller acknowledges that Cyclone may return Nonconforming Leads and Seller shall promptly replace Nonconforming Leads with conforming Leads as further described in the Bylaws. Cyclone may also terminate a Purchase Order for breach thereof and require Seller to refund of any fees paid in advance for undelivered Leads. Seller further acknowledges that notwithstanding the return of Nonconforming Leads, the refund of fees and/or termination of a Purchase Order, the Transactions Fees shall not be refundable.

  8. Disclaimers. 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 Website or the Service. Cyclone does not guarantee any minimum amount of purchases or orders or revenues. Any earnings projections or illustrations set forth on the Website or in any other promotional materials distributed to Seller by Cyclone are only projections and not guarantees of performance of success. Seller acknowledges that Seller 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. Seller 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 Seller's breach of this Agreement or the Bylaws or Seller'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 SELLER 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 SELLER 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. 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 Orders. Termination of this Agreement (i) shall not relieve the parties of any obligation accruing prior to such termination, including but not limited to, Seller's obligations to provide any Leads or refunds then due Cyclone, (ii) shall not entitle Seller to a refund of any fees paid to Cyclone under this Agreement, and (iii) shall immediately terminate Seller's participation in the Service (except as to the completion of any outstanding Purchase Orders). 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 and 13.

  12. 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.

  13. Assignment. Seller obligations hereunder are personal and Seller 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.

  14. 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.

  15. 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.

  16. Waiver. Cyclone's failure to enforce Seller'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.

  17. 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.

  18. 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.

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

  20. 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.