This Independent Contractor Agreement (hereinafter referred to as the “Agreement”) is entered into between you (“Contractor”) as an independent contractor, and Elevated FX, LLC. and/or any of its subsidiaries and/or affiliates (collectively, “Elevated FX” or the “Company”).

PLEASE READ THESE TERMS CAREFULLY, AS THEY CONSTITUTE A LEGAL AGREEMENT BETWEEN YOU AND Elevated FX.

This Agreement is supplemental to the Elevated FX Terms of Use and is not intended to revoke or supersede such Terms of Use except where specifically stated herein. All terms and definitions of the Terms of Use are hereby incorporated into this Agreement unless specifically stated herein.

IMPORTANT: PLEASE REVIEW THE ARBITRATION AGREEMENT SET OUT IN SECTION 6 CAREFULLY, AS IT WILL REQUIRE YOU TO RESOLVE DISPUTES WITH Elevated FX ON AN INDIVIDUAL BASIS THROUGH FINAL AND BINDING ARBITRATION. BY ENTERING THIS AGREEMENT, YOU EXPRESSLY ACKNOWLEDGE THAT YOU HAVE READ AND UNDERSTAND ALL OF THE TERMS OF THIS AGREEMENT AND HAVE TAKEN TIME TO CONSIDER THE CONSEQUENCES OF THIS IMPORTANT DECISION.

In consideration of the promises, rights, obligations and other valuable consideration, the receipt and sufficiency of which is hereby acknowledged, the parties agree as follows:

Elevated FX’ collection and use of personal information in connection with the Services is described in Elevated FX’ Privacy Statements located at http://members.elevatedfx.com/privacy-policy/ PAYMENT FOR SERVICES. 

  1. The Company agrees to pay to Contractor a portion of the Charges for Services you have directly referred using the link provided in your profile (“payments”). All payments are subject to a Elevated FX Commission and Fees, discussed and defined below. Elevated FX will process all payments due to Contractor through its third-party payments processor. Contractor agrees that payments do not include interest accrued, if any, and will be net of any Commission, Fees or amounts that the Company is required to withhold by law.

Independent Contractor

Intellectual Property: Inventions and Original Works Assigned to Company (“Work For Hire” or “Work Made For Hire”).

DISCLAIMER.

YOU ACKNOWLEDGE AND AGREE THAT Elevated FX IN NO WAY GUARANTEES THE QUALITY, SUITABILITY, SAFETY OR ABILITY OF SERVICES. AT NO TIME DOES Elevated FX AGREE TO PROVIDE NOR IS ANY THIRD PARTY PROVIDER OF SERVICES PERMITTED TO PROVIDE YOU WITH A GUARANTEE OF SERVICES.

THE SERVICES ARE PROVIDED “AS IS” AND “AS AVAILABLE.” Elevated FX DISCLAIMS ALL REPRESENTATIONS AND WARRANTIES, EXPRESS, IMPLIED, OR STATUTORY, NOT EXPRESSLY SET OUT IN THESE TERMS, INCLUDING THE IMPLIED WARRANTIES OF MERCHANTABILITY, FITNESS FOR A PARTICULAR PURPOSE AND NON-INFRINGEMENT. IN ADDITION, Elevated FX MAKES NO REPRESENTATION, WARRANTY, OR GUARANTEE REGARDING THE RELIABILITY, TIMELINESS, QUALITY, SUITABILITY, OR AVAILABILITY OF THE SERVICES OR ANY SERVICES OR GOODS REQUESTED THROUGH THE USE OF THE SERVICES, OR THAT THE SERVICES WILL BE UNINTERRUPTED OR ERROR-FREE. Elevated FX DOES NOT GUARANTEE THE QUALITY, SUITABILITY, SAFETY OR ABILITY OF THIRD PARTY PROVIDERS. YOU AGREE THAT THE ENTIRE RISK ARISING OUT OF YOUR USE OF THE SERVICES, AND ANY SERVICE OR GOOD REQUESTED IN CONNECTION THEREWITH, REMAINS SOLELY WITH YOU, TO THE MAXIMUM EXTENT PERMITTED UNDER APPLICABLE LAW.

LIMITATION OF LIABILITY.

Elevated FX SHALL NOT BE LIABLE FOR INDIRECT, INCIDENTAL, SPECIAL, EXEMPLARY, PUNITIVE, OR CONSEQUENTIAL DAMAGES, INCLUDING LOST PROFITS, LOST DATA, IN CONNECTION WITH, OR OTHERWISE RESULTING FROM ANY USE OF THE SERVICES, REGARDLESS OF THE NEGLIGENCE (EITHER ACTIVE, AFFIRMATIVE, SOLE, OR CONCURRENT) OF Elevated FX, EVEN IF Elevated FX HAS BEEN ADVISED OF THE POSSIBILITY OF SUCH DAMAGES.

FURTHER, Elevated FX SHALL NOT BE LIABLE FOR ANY DAMAGES, LIABILITY OR LOSSES ARISING OUT OF: (i) YOUR USE OF OR RELIANCE ON THE SERVICES OR YOUR INABILITY TO ACCESS OR USE THE SERVICES; (ii) ANY TRANSACTION OR RELATIONSHIP BETWEEN YOU AND ANY THIRD PARTY PROVIDER; OR (iii) ANY NON-PERFORMANCE OF SERVICES OR PARTS OF THESE SERVICES, WHETHER IMPOSED BY THIS AGREEMENT OR NOT, EVEN IF Elevated FX HAS BEEN ADVISED OF THE POSSIBILITY OF SUCH DAMAGES. Elevated FX SHALL NOT BE LIABLE FOR DELAY OR FAILURE IN PERFORMANCE RESULTING FROM CAUSES BEYOND Elevated FX’S REASONABLE CONTROL.

YOU AGREE THAT Elevated FX HAS NO RESPONSIBILITY OR LIABILITY TO YOU RELATED TO ANY SERVICES PROVIDED TO YOU BY THIRD PARTY PROVIDERS OTHER THAN AS EXPRESSLY SET FORTH IN THESE TERMS.

THE LIMITATIONS AND DISCLAIMER IN THIS SECTION DO NOT PURPORT TO LIMIT LIABILITY OR ALTER YOUR RIGHTS AS A CONSUMER THAT CANNOT BE EXCLUDED UNDER APPLICABLE LAW. BECAUSE SOME STATES OR JURISDICTIONS DO NOT ALLOW THE EXCLUSION OF OR THE LIMITATION OF LIABILITY FOR CONSEQUENTIAL OR INCIDENTAL DAMAGES, IN SUCH STATES OR JURISDICTIONS, Elevated FX LIABILITY SHALL BE LIMITED TO THE EXTENT PERMITTED BY LAW. THIS PROVISION SHALL HAVE NO EFFECT ON Elevated FX’ CHOICE OF LAW PROVISION SET FORTH BELOW.

Indemnity.

You agree to indemnify, defend and hold Elevated FX and its affiliates and their officers, directors, employees, and agents harmless from any and all claims, demands, losses, liabilities, and expenses (including attorneys’ fees), arising out of or in connection with: (i) your use of the Services or services or goods obtained through your use of the Services; (ii) your breach or violation of any of these Terms; (iii) Elevated FX’s use of your User Content; or (iv) your violation of the rights of any third party, including Third Party Providers.

 

Additional Agreements

Arbitration Agreement

By agreeing to the Terms, you agree that you are required to resolve any claim that you may have against Elevated FX on an individual basis in arbitration, as set forth in this Arbitration Agreement. This will preclude you from bringing any class, collective, or representative action against Elevated FX, and also preclude you from participating in or recovering relief under any current or future class, collective, consolidated, or representative action brought against Elevated FX by someone else.

Agreement to Binding Arbitration Between You and Elevated FX.

You and Elevated FX agree that any dispute, claim or controversy arising out of or relating to (a) these Terms or the existence, breach, termination, enforcement, interpretation or validity thereof, or (b) your access to or use of the Services at any time, whether before or after the date you agreed to the Terms, will be settled by binding arbitration between you and Elevated FX, and not in a court of law.

You acknowledge and agree that you and Elevated FX are each waiving the right to a trial by jury or to participate as a plaintiff or class member in any purported class action or representative proceeding. Unless both you and Elevated FX otherwise agree in writing, any arbitration will be conducted only on an individual basis and not in a class, collective, consolidated, or representative proceeding. However, you and Elevated FX each retain the right to bring an individual action in small claims court and the right to seek injunctive or other equitable relief in a court of competent jurisdiction to prevent the actual or threatened infringement, misappropriation or violation of a party’s copyrights, trademarks, trade secrets, patents or other intellectual property rights.

Rules and Governing Law.

The arbitration will be administered by the American Arbitration Association (“AAA”) in accordance with the AAA’s Consumer Arbitration Rules and the Supplementary Procedures for Consumer Related Disputes (the “AAA Rules”) then in effect, except as modified by this Arbitration Agreement. The AAA Rules are available at www.adr.org/arb_med or by calling the AAA at 1-800-778-7879.

T

he parties agree that the arbitrator (“Arbitrator”), and not any federal, state, or local court or agency, shall have exclusive authority to resolve any disputes relating to the interpretation, applicability, enforceability or formation of this Arbitration Agreement, including any claim that all or any part of this Arbitration Agreement is void or voidable. The Arbitrator shall also be responsible for determining all threshold arbitrability issues, including issues relating to whether the Terms are unconscionable or illusory and any defense to arbitration, including waiver, delay, laches, or estoppel.

Notwithstanding any choice of law or other provision in the Terms, the parties agree and acknowledge that this Arbitration Agreement evidences a transaction involving interstate commerce and that the Federal Arbitration Act, 9 U.S.C. § 1 et seq. (“FAA”), will govern its interpretation and enforcement and proceedings pursuant thereto. It is the intent of the parties that the FAA and AAA Rules shall preempt all state laws to the fullest extent permitted by law. If the FAA and AAA Rules are found to not apply to any issue that arises under this Arbitration Agreement or the enforcement thereof, then that issue shall be resolved under the laws of the state of Florida.

Process.

A party who desires to initiate arbitration must provide the other party with a written Demand for Arbitration as specified in the AAA Rules. (The AAA provides a form Demand for Arbitration – Consumer Arbitration Rules at www.adr.org or by calling the AAA at 1-800-778-7879). The Arbitrator will be either (1) a retired judge or (2) an attorney specifically licensed to practice law in the state of Wyoming and will be selected by the parties from the AAA’s roster of consumer dispute arbitrators. If the parties are unable to agree upon an Arbitrator within seven (7) days of delivery of the Demand for Arbitration, then the AAA will appoint the Arbitrator in accordance with the AAA Rules.

Location and Procedure.

Unless you and Elevated FX otherwise agree, the arbitration will be conducted in the City of Sheridan, Wyoming. If your claim does not exceed $10,000, then the arbitration will be conducted solely on the basis of documents you and Elevated FX submit to the Arbitrator, unless you request a hearing or the Arbitrator determines that a hearing is necessary. If your claim exceeds $10,000, your right to a hearing will be determined by the AAA Rules. Subject to the AAA Rules, the Arbitrator will have the discretion to direct a reasonable exchange of information by the parties, consistent with the expedited nature of the arbitration.

Arbitrator’s Decision.

The Arbitrator will render an award within the time frame specified in the AAA Rules. Judgment on the arbitration award may be entered in any court having competent jurisdiction to do so. The Arbitrator may award declaratory or injunctive relief only in favor of the claimant and only to the extent necessary to provide relief warranted by the claimant’s individual claim. An Arbitrator’s decision shall be final and binding on all parties. An Arbitrator’s decision and judgment thereon shall have no precedential or collateral estoppel effect.

Fees.

Your responsibility to pay any AAA filing, administrative and arbitrator fees will be solely as set forth in the AAA Rules. However, if your claim for damages does not exceed $75,000, Elevated FX will pay all such fees, unless the Arbitrator finds that either the substance of your claim or the relief sought in your Demand for Arbitration was frivolous or was brought for an improper purpose (as measured by the standards set forth in Federal Rule of Civil Procedure 11(b)).

Changes.

Notwithstanding the provisions in this Section 6 above, regarding consent to be bound by amendments to these Terms, if Elevated FX changes this Arbitration Agreement after the date you first agreed to the Terms (or to any subsequent changes to the Terms), you may reject any such change by providing Elevated FX written notice of such rejection within 30 days of the date such change became effective, as indicated in the “Effective” date above. This written notice must be provided either (a) by mail to our registered agent for service of process, Katz & Phillips, P.A., or (b) by email from the email address associated with your Account to: [email protected] In order to be effective, the notice must include your full name and clearly indicate your intent to reject changes to this Arbitration Agreement. By rejecting changes, you are agreeing that you will arbitrate any dispute between you and Elevated FX in accordance with the provisions of this Arbitration Agreement as of the date you first agreed to the Terms (or to any subsequent changes to the Terms).

Severability and Survival.

If any portion of this Arbitration Agreement is found to be unenforceable or unlawful for any reason, (1) the unenforceable or unlawful provision shall be severed from these Terms; (2) severance of the unenforceable or unlawful provision shall have no impact whatsoever on the remainder of the Arbitration Agreement or the parties’ ability to compel arbitration of any remaining claims on an individual basis pursuant to the Arbitration Agreement; and (3) to the extent that any claims must therefore proceed on a class, collective, consolidated, or representative basis, such claims must be litigated in a civil court of competent jurisdiction and not in arbitration, and the parties agree that litigation of those claims shall be stayed pending the outcome of any individual claims in arbitration.

Other Provisions

Choice of Law.

T

hese Terms are governed by and construed in accordance with the laws of the State of Wyoming, U.S.A., without giving effect to any conflict of law principles, except as may be otherwise provided in the Arbitration Agreement above or in supplemental terms applicable to your region. However, the choice of law provision regarding the interpretation of these Terms is not intended to create any other substantive right to non-Wyomingns to assert claims under Wyoming law whether that be by statute, common law, or otherwise. These provisions, and except as otherwise provided in Section 6 of these Terms, are only intended to specify the use of Wyoming law to interpret these Terms and the forum for disputes asserting a breach of these Terms, and these provisions shall not be interpreted as generally extending Wyoming law to you if you do not otherwise reside in Wyoming. The foregoing choice of law and forum selection provisions do not apply to the arbitration clause in Section 6 or to any arbitrable disputes as defined therein. Instead, as described in Section 6, the American Arbitration Association shall apply to any such disputes.

Notice.

Elevated FX may give notice by means of a general notice on the Services, electronic mail to your email address in your Account, telephone or text message to any phone number provided in connection with your account, or by written communication sent by first class mail or pre-paid post to any address connected with your Account. Such notice shall be deemed to have been given upon the expiration of 48 hours after mailing or posting (if sent by first class mail or pre-paid post) or 12 hours after sending (if sent by email or telephone). You may give notice to Elevated FX, with such notice deemed given when received by Elevated FX, at any time by first class mail or pre-paid post to our registered agent for service of process, Elevated FX, LLC.

General.

You may not assign these Terms without Elevated FX’s prior written approval. Elevated FX may assign these Terms without your consent to: (i) a subsidiary or affiliate; (ii) an acquirer of Elevated FX’s equity, business or assets; or (iii) a successor by merger. Any purported assignment in violation of this section shall be void. No joint venture, partnership, employment, or agency relationship exists between you, Elevated FX or any Third Party Provider as a result of this Agreement or use of the Services. If any provision of these Terms is held to be invalid or unenforceable, such provision shall be struck and the remaining provisions shall be enforced to the fullest extent under law. Elevated FX’s failure to enforce any right or provision in these Terms shall not constitute a waiver of such right or provision unless acknowledged and agreed to by Elevated FX in writing. This provision shall not affect the Severability and Survivability section of the Arbitration Agreement of these Terms.