Terms of Use

Last Updated on
May 24, 2023

1.  Introduction

This Terms of Use Agreement (“TOU”) is a binding contract that governs all aspects of the relationship between us, including your use of HeadRace.com and all products and services, online or otherwise, that are provided to you through HeadRace.com (collectively the “HeadRace Platform”).   Other policies and supplemental terms of use may also apply to and govern your use of the HeadRace Platform and/or certain products or services that we or third parties working with us provide through the HeadRace Platform. Other HeadRace terms and policies include our Privacy Policy, our Payment Terms, our Fee Schedule and our Nondiscrimination Policy.  All of our polices and other terms are accessible by clicking here. These additional HeadRace terms and policies are incorporated into these Terms by this reference, and when we refer to “Terms,” we are including all of our supplemental terms and policies. By creating a HeadRace account, you agree to comply with these Terms.  More information about our services can be found on our FAQ page.  

When we refer to “We,” “Our” and “Us” herein, we are referring to HeadRace.  When we refer to “You” and “Your,” we are referring to you.

As explained in paragraph 14, below, we use Stripe to process payments made through the HeadRace Platform.  By accepting these terms and creating a HeadRace account, you agree to permit Stripe to access the information you provide to HeadRace for the purpose of processing payments.  Please note that Stripe has its own Privacy Policy that describes and governs Stripe’s maintenance and use of your information.  Please read it.

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2.  What We Do

The HeadRace Platform provides software.  Our software presents and operates the HeadRace Platform, which is an online network that brings independent employment recruiting professionals (“Recruiters” or “Recruiting Professionals”) and businesses with job openings (“Employers”) together for the purpose of facilitating employee placement. We charge fees for certain products and services that we provide to You through the HeadRace Platform. If You choose to use a paid service or product, then You agree to the pricing and terms set forth in paragraph 5, below, as supplemented by our Fee Schedule. If You intend to use a paid service or product, please read paragraph 5 and our Fee Schedule for more information about our fees.

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3.  What We Do Not Do

We are not a Recruiter, a Recruiting Professional or an employment agency nor are we an Employer.  Accordingly, we do not represent job candidates or employers looking to place candidates. Recruiting Professionals who use the HeadRace platform are independent contractors. Employers who use the HeadRace Platform are independent third parties.  HeadRace is not involved in the management, operation, or day-to-day control over the affairs of either Recruiting Professionals or Employers. HeadRace is not a party to any contract entered into between Recruiters and Employers through or facilitated by the HeadRace Platform.  For sake of clarity, any contract for the placement of a job candidate that is facilitated through the HeadRace Platform is a contract exclusively between the Recruiter and the Employer. Except for facilitating the transmission of funds, HeadRace does not act by or for either Recruiters or Employers and is not the agent of any Recruiter or Employer.  HeadRace may offer online tools that assist Recruiters and Employers in establishing contract terms, including suggested pricing, but HeadRace does not set any prices for placement or placement-related services provided by Recruiters to Employers, nor is HeadRace involved in establishing any other terms of any placement contract entered into between Recruiter and Employer.  Recruiters and Employers are solely responsible for all content they upload to the HeadRace Platform through Listings or otherwise. HeadRace is not the author of any content uploaded by Recruiters or Employers, does not guarantee the truthfulness or accuracy of such content and in no way warrants said content or the availability or suitability of any candidate or job opening.

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4. Using the HeadRace Platform

You must create a HeadRace account and assent to this TOU in order to access and use the HeadRace Platform.  You acknowledge and agree that you are responsible and fully liable for all conduct that occurs in or through your HeadRace account, including, but not limited to, any act or omission of any individual who uses your Headrace account, whether or not you authorized that individual to use your HeadRace account.   You alone are responsible for complying with any local, state or federal laws that apply to you.  You agree that you will not abuse or misuse the HeadRace Platform by doing any of the following:

  • breach or circumvent: (a) any laws, regulations, third-party rights; (b) our systems, services, and/or policies; or (c) our determinations of your account status;
  • use our services if you are not able to form legally binding contracts (for example, if you are under 18 years old), or are temporarily or indefinitely suspended from using the HeadRace Platform, or are a person with whom transactions are prohibited under economic or trade sanctions;
  • fail to pay agreed upon fees unless you have a valid reason as set out in a HeadRace policy;
  • interfere with any other user's Listings;
  • transfer your HeadRace account and/or user ID to any other party without our consent;
  • share your log in credentials with any third parties and/or unauthorized users;
  • provide, upload or post or upload inappropriate or illegal content;
  • provide, upload or post any false, inaccurate, misleading, deceptive, defamatory, or libelous content;
  • distribute or post spam, unsolicited or bulk electronic communications, chain letters, or pyramid schemes;
  • distribute viruses or any other technologies that may harm HeadRace and/or the HeadRace Platform or the interests or property of other users;
  • use any robot, spider, scraper, data mining tools, data gathering and extraction tools, or other automated means to access our Services for any purpose, except with our prior written permission;
  • circumvent any technical measures used to provide the HeadRace Platform;
  • interfere with the functioning of the HeadRace Platform, such as by imposing an unreasonable or disproportionately large load on our infrastructure;
  • infringe the copyright, trademark, patent, publicity, moral, database, and/or other intellectual property rights (collectively, "Intellectual Property Rights") that belong to or are licensed to HeadRace. Some, but not all, actions that may constitute infringement are reproducing, performing, displaying, distributing, copying, reverse engineering, decompiling, disassembling, or preparing derivative works from content that belongs to us or to someone else;
  • infringe any Intellectual Property Rights that belong to third parties affected by your use of the HeadRace Platform or post content that does not belong to you;
  • commercialize any HeadRace application or any information, data or software associated with such application, except with our express permission; or
  • harvest or otherwise collect or use information about users without their consent.

If we believe you are abusing or misusing the HeadRace Platform in any way, we may, in our sole discretion and without limiting our other remedies, do any of the following: limit, suspend, or terminate your  account and your access to the HeadRace Platform; delay, hide or remove your content; remove any special status associated with your account(s); remove, not display, and/or demote your Listing; and take technical and/or legal steps to prevent you from using the HeadRace Platform.  In the event that HeadRace takes any action permitted by this paragraph, you agree that any financial obligations existing at the time that HeadRace takes such action will survive the termination, suspension or limitation of your account. HeadRace reserves the right, in its discretion, to permanently terminate a suspended or limited account once all existing financial obligations are satisfied.

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‍5. HeadRace Fees

There is no fee for creating a HeadRace online account. We do, however, charge fees for certain services that we provide through the HeadRace Platform and those fees are set forth on our Fee Schedule. The fees that you will pay will depend on the services you choose, and in some cases we will individually negotiate them with you.  When You and We negotiate fees, We will memorialize those fees in writing, that writing will be incorporated into these Terms and can be subsequently modified only in a writing signed by HeadRace.

We reserve the right to change our Fee Schedule from time to time and when We do, We will notify You of any change by posting an updated Fee Schedule on HeadRace.com fourteen (14) days before the fees become effective. You agree that it is Your sole responsibility to check the Fee Schedule periodically for updates, and that by accepting these Terms and creating a HeadRace online account, You agree to pay all fees currently in effect as reflected on the current  Fee Schedule.  If You do not agree to an increased fee, then Your recourse is to terminate Your HeadRace account and stop using the HeadRace Platform. Any account termination under such circumstances will be subject to paragraph 22, below, and will not extinguish any existing financial obligations.  You therefore expressly agree and acknowledge that in the event You decide to stop using the HeadRace Platform and terminate Your HeadRace account in response to a fee increase, You will remain liable for all financial obligations that exist as of the date of termination. 

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6. Online Listings

The HeadRace Platform permits Recruiters and Employers to create and post “Listings.”  Recruiter Listings contain information pertaining to the Recruiter’s services, its ability to fill specific job openings, and in some instances, may include information pertaining to specific candidates.  Employer Listings contain information about currently available job openings.  Regardless of whether You are a Recruiter or an Employer, when You post a Listing on the HeadRace Platform, You agree that:

You are solely responsible for the content of the Listing, including the accuracy of all content and representations made therein;

The content you provide complies with the Terms;

HeadRace, in it is sole discretion, can obfuscate or delete entire Listings or specific Listing content if: (a) a Listing or some or all of its content violates these Terms; or (b) it is necessary to protect the privacy or safety of its users and/or to maintain the integrity of the HeadRace Platform. HeadRace reserves the right to obfuscate identifying information such as a company name in its sole discretion as it deems reasonably appropriate;

You will not upload duplicative Listings, and HeadRace reserves the right to obfuscate or delete duplicate Listings in its sole discretion;

HeadRace may remove or alter metatags and URL links that are included in a Listing in its sole discretion.

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‍7. Terms Specific to Recruiters.  

If you are a Recruiter, then this paragraph applies to you and applies to all products and services that HeadRace offers though the HeadRace Platform. Please read it carefully.  As a Recruiter, you agree as follows:

  • You will evaluate candidates and will refer only qualified candidates to Employers;
  • You will only present candidates who generally match the qualification requirements of the position provided by the Employer;
  • You will prescreen candidates as necessary to ensure that the candidate reasonably matches the Employer’s job description;
  • You acknowledge and agree that no Employer has any obligation to interview or hire any candidate that you present; interviewing and hiring decisions are in the sole discretion of the Employer;
  • You and not HeadRace are responsible for determining the suitability of any candidate for any open position, including but not limited to employee skill and qualifications and/or the accuracy of representations made on employee resumes;
  • You will not circumvent the HeadRace Platform for the purpose of avoiding a payment to HeadRace avoiding a payment to any other HeadRace account holder, or for any other purpose. If You circumvent the HeadRace Platform, You will pay the placement fee set forth in paragraph 10, below.
  • You may subcontract some or all of your Recruiter obligations to another Recruiter with HeadRace’s express authorization.   Both Recruiters to a subcontract agreement must have a HeadRace account,  all payments will be facilitated through the HeadRace Platform and all subcontractor agreements must afford HeadRace the same rights, including payment rights, afforded to it by these Terms.  If you are interested in establishing a subcontractor relationship with another Recruiter, please contact Us by email at hire@headrace.com and we will set it up for you.      
  • You will provide HeadRace with a signed Form W9 in a timely manner as applicable.

The violation of any of these specific terms will be deemed a material breach of these Terms.

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8. Terms Specific to Employers.  

If you are an Employer, then this paragraph applies to you.  Please read it carefully. When you use HeadRace’s Services to fill a position, you agree as follows:

  • You will notify HeadRace immediately when a position has been filled;
  • You will provide HeadRace immediately with the terms of the employment, including but not limited to the first year compensation;
  • You will respond timely to all requests by HeadRace or a Recruiter for information concerning a candidate or open position, including the current status of any offer of employment and the details of compensation accepted, and the nature, terms and amount of any equity offered as part of a compensation package in a timely manner;
  • If you hire a Recruiter that you met through the HeadRace Platform as a full time employee, then you agree that your hiring of that Recruiter will be a placement made through the HeadRace Platform and you agree that the compensation for that placement payable to HeadRace will be $100,000 as set forth on the Fee Schedule;
  • You will not circumvent the HeadRace Platform for the purpose of avoiding a payment to HeadRace, avoiding a payment to any other HeadRace account holder, or  for any other purpose.  Compensation due to HeadRace for circumventing the HeadRace Platform is set forth in paragraph 10, below.

The failure to perform any of these specific terms will be deemed a material breach of these Terms.

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9. Terms Specific to SCALE

SCALE is a platform that allows Employers to receive multiple candidates for a single job opening from multiple Recruiters at the same time.  When using SCALE, an Employer posts a Listing and sets the fee it is willing to pay.  Any Recruiter on the HeadRace platform who is willing to accept the offered fee can submit candidates qualified for the position.  The Recruiter who submits the candidate that the Employer ultimately chooses receives the fee. 

When you use SCALE, whether as a Recruiter or Employer, you agree as follows:

  • The fee is firm: An Employer commits to pay the fee it offers and the successful Recruiter agrees to accept it;
  • No spamming:  There is no limit on the number of qualified candidates a Recruiter may submit for a single job opening subject to the following:
  • The Recruiter represents and warrants that it is authorized by the candidate to submit for the position;
  • The Recruiter represents and warrants that it will submit only those candidates who are reasonably qualified for the job opening. 
  • HeadRace tracks Recruiter submissions. If HeadRace determines, in its sole discretion, that a Recruiter is repeatedly making unauthorized submissions and/or submitting unqualified candidates, then HeadRace may suspend or terminate your account pursuant to paragraph 23, below.  Repeated submissions of unqualified candidates may also affect your quality score.   All decisions made pursuant to this paragraph are final. 
  • Simultaneous Use of Multiple Products.  You may use SCALE and retain a single Recruiter for the same job opening.  If the candidate is ultimately placed through SCALE, then the provisions of this paragraph apply. If the candidate is placed through the HeadRace Platform but not through SCALE,  then the terms of Your Recruiter agreement will apply.  If the successful candidate is submitted through SCALE and separately by an independently retained HeadRace Recruiter, then You will pay the applicable SCALE or  non-SCALE fees for only the accepted submission (only one fee is paid for whichever submission is accepted first).  
  • Multiple Submissions of Same Candidate. It is possible for multiple Recruiters to submit the same candidate for a single job opening. If this occurs, then the Recruiter whose candidate submission is accepted first will be paid.  Submission and acceptance dates are tracked on the HeadRace Platform, and HeadRace retains the sole discretion to determine which acceptance was first in time.  HeadRace’s first in time determination is final. 
  • Additional Terms Applicable to SCALE. Other Terms applicable to the SCALE product, such as HeadRace’s fee and duration, are set forth in the product flow on the HeadRace Platform. You agree to these additional Terms when you click the “submit” button.
  • Anti-Circumvention.  If the candidate ultimately hired was, at any time, submitted  through SCALE on the HeadRace Platform, you are responsible for on time payment of all fees associated with the SCALE product per the invoices you receive. In short, you will not circumvent the HeadRace Platform by hiring or placing a submitted candidate outside the HeadRace Platform, and if you do, paragraph 10, below, will apply.  

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10.  Compensation In the Event You Circumvent the HeadRace Platform.

You and we agree that circumventing the HeadRace Platform in any way constitutes a material breach of this TOU and these Terms. If you are an Employer and you meet a Recruiter through the HeadRace Platform and thereafter fill an open position with a candidate introduced to you by that Recruiter outside the HeadRace Platform (for the purpose of avoiding payment of our fees), then you will pay HeadRace a placement fee of $100,000 as compensation for that placement. You and we agree and intend that this amount is compensation for the placement and not a penalty. You and we further agree and acknowledge that the actual amount of harm to HeadRace caused by circumventing the HeadRace Platform would be impossible or very difficult to accurately estimate at the time of contracting and that this amount represents a reasonable and good faith estimate of the anticipated or actual harm to HeadRace that might arise if you hire an employee introduced to you by a Recruiter in circumvention of the HeadRace Platform. Your payment of this amount is your sole liability and entire obligation for damages caused by circumventing the HeadRace Platform and is our exclusive remedy for this specific breach.

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11. Use and Protection of Intellectual Property

11.1  When you upload Listings to our platform, you grant us a non-exclusive, worldwide, perpetual, irrevocable, royalty-free, sub-licensable (through multiple tiers) right to exercise any and all Intellectual Property Rights you have in that Listing content in connection with the HeadRace Platform, including but not limited to our provision, expansion, and promotion of the HeadRace Platform, in any media known now or developed in the future. To the fullest extent permitted under applicable law, you waive your right to enforce your Intellectual Property Rights contained in Listing content against HeadRace, our assignees, our sub-licensees, and their assignees in connection with our, those assignees', and those sub-licensees' use of that content in connection with our provision, expansion, and promotion of the HeadRace Platform.

11.2  You represent and warrant that you own or otherwise control all necessary rights to the Listing content that you upload to the HeadRace Platform. You represent and warrant that all Listing content you upload or otherwise provide on the HeadRace Platform is truthful and accurate. You represent and warrant that use of any such content (including derivative works) by us, our users, or others in contract with us, and in compliance with these Terms, does not and will not infringe any Intellectual Property Rights of any third party. HeadRace takes no responsibility and assumes no liability for any content provided by you or by any third party.

11.3  We may offer content, including images, descriptions and specifications, provided by third parties (“Third Party Content”). Third Party Content may include copyrighted, trademarked and/or other proprietary materials. You agree that you may use Third Party Content solely on the HeadRace Platform, and we may modify or revoke our permission for you to use this Third Party Content at any time in our sole discretion. You agree not to remove any copyrighted, proprietary, or identification markings in any Third Party Content that you use and that you will not create any derivative works based on Third Party Content (other than by including the data in your listings).

11.4  We do not warrant the content of any Listing or Third Party Content and make no representation or warranty as to its availability, accuracy, and completeness. You agree that HeadRace is not responsible for examining or warranting Listings or any Third Party Content made available through the HeadRace Platform and that you will not attempt to hold us liable for inaccuracies.

11.5  The name "HeadRace," “HeadRace.com” and other HeadRace marks, logos, designs, and phrases that we use in connection with the HeadRace Platform are trademarks, service marks, or trade dress of HeadRace in the U.S. and in other countries. We protect them as proprietary and therefore you may not use them without our express written consent.

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12. Notice for Claims of Intellectual Property Violations and Copyright Infringement Pursuant to Section 512(c) of Title 17 of the United States Code

We respond to notices of alleged copyright infringement under the United States Digital Millennium Copyright Act.  If you believe that your intellectual property rights have been infringed on the HeadRace Platform, please send an email notice with “DMCA Take Down” in the subject line to: legal@headrace.com. For additional information and instructions, click here.

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13. Authorization to Contact You; Recording Calls; Analyzing Message Content

13.1  Permitted uses of the data you provide to us are detailed in our Privacy Policy.  HeadRace may contact you using autodialed or prerecorded calls and text messages, at any telephone number that you have provided us, to: (i) provide information regarding your account; (ii) troubleshoot problems with your account; (iii) resolve a dispute; (iv) collect a debt; (v) poll your opinions through surveys or questionnaires; or (vi) as otherwise necessary to service your account or enforce these Terms, our other policies, applicable law, or any other agreement we may have with you. We may also contact you using autodialed or prerecorded calls and text messages for marketing purposes (e.g., offers and promotions), if you consent in writing to such communications. Our collection, use, disclosure, retention, and protection of your personal information is governed by our Privacy Policy. As described in our Privacy Policy, we may collect other telephone numbers from you and may place manual non-marketing calls to any of those numbers and autodialed non-marketing calls to any landline. Standard telephone minute and text charges may apply and may include overage fees if you have exceeded your plan limits. You may change your marketing communications preference for calls at any time, including through the Communication Preferences section of your account.   You may also opt-out of a specific text marketing campaign by replying "STOP" to such marketing text message.

13.2  HeadRace may share the contact information you provide to us, including your telephone number and email address with its authorized service providers as stated in our Privacy Policy. These service providers may contact you using autodialed or prerecorded calls and text messages when authorized to carry out the purposes identified above.  We may, without further notice or warning and in our discretion, monitor or record telephone conversations you or anyone acting on your behalf has with us or our agents for quality control and training purposes, or for its own protection.

13.3  Our automated systems scan and analyze the content of every message sent through our messages platform, including messages between users, to detect and prevent fraudulent activity, illegal activity or violations of these Terms. This may result in a manual review of messages sent through our messaging tools. This scanning and analysis may occur before, during, or after the message is sent, or while in storage, and may result in your message being delayed or withheld. HeadRace may temporarily store message content, including to conduct this scanning and analysis.

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14. Payment Processing  

Payments are processed by Stripe, a third party licensed payment processor (“Stripe”). To make or receive any payment through the HeadRace Platform, you must provide HeadRace and Stripe with financial information about your business, including the financial account you will use to make and receive payments. Stripe is not affiliated with HeadRace in any way except contractually for the limited purpose of providing HeadRace with third party payment processing services.  As a third party, you acknowledge that Stripe has its own Services Agreement and Privacy Policy to which you agree to be bound.

With respect to payment processing, you acknowledge and agree as follows:

Service and Placement Fees that are payable to HeadRace after placement will be transmitted to HeadRace using the payment methods associated with your HeadRace account.

Payments between Recruiter and Employer that are processed by Stripe through the HeadRace Platform will use the payment methods and deposit instructions in your account.  We will manage settlement of the payment to Recruiters through Stripe. When you hire a candidate that you obtained through the HeadRace Platform, you authorize Stripe, through us, to collect the payment amounts from you and transmit payments to the Recruiter using the payment method designated in your account. Once we receive a payment from your payment method, your obligation to pay the Recruiter is satisfied.

We do not store the payment information that you provide to us.  Such payment information may be stored by Stripe and will be used as your default payment and settlement methods for transactions on the HeadRace Platform.  Stripe has its own Privacy Policy that explains how it stores, maintains and uses the payment and other information you provide when creating your HeadRace account.  By creating a HeadRace account and using the HeadRace Platform, you are agreeing that Stripe may use your information to process payments consistent with the terms of Stripe’s Privacy Policy .  Please read it.  

You can update your payment and settlement information at any time through your HeadRace account.  Note, however, that if you delete all payment and settlement information and leave your account with no designated payment or settlement method, your ability to use the HeadRace Platform will be limited. You are responsible for maintaining the accuracy of the payment and settlement information associated with your HeadRace account, and you will only provide payment or settlement methods that you are authorized to use.

You agree to comply with, and not cause any third party to violate, all applicable laws, regulations, rules and terms and conditions in connection with the use of the payment services provided by us or by Stripe.  You understand that some third parties, such as financial institutions, credit and debit card issuers, credit and debit card networks and payments services providers, may have their own terms and conditions for the payment or settlement methods you choose to use in connection with managed payments transactions. Failure to abide by third party terms and conditions may result in fees assessed to you (for example, currency conversion fees from your credit card issuer if the transaction currency is different from your credit card currency) or other actions taken by such third parties, and you agree that we have no control over, or responsibility or liability for, such fees or actions.

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15. Dispute Resolution and Mandatory Arbitration

15.1 Mandatory Pre-Arbitration Dispute Resolution. HeadRace is committed to attempting informal resolution of disputes before turning to arbitration. To that end, this Section 15 provides for a two-part dispute resolution process.  Before filing a Demand for Arbitration pursuant to the paragraphs below, you and we will first notify the other party of the nature of the dispute and then we will engage in good faith negotiations in an attempt to resolve the dispute for thirty (30) days. You must send your notice of dispute by email to: legal@headrace.com.. If we have the dispute, then we will send our notice of dispute to you at the email and/or mailing address associated with your HeadRace account.  A notice of dispute must state “notice of dispute” or words to that effect in the subject line of your email and must include your name and preferred contact information, a brief description of the dispute and the relief sought.  If, at the end of the 30-day period, we have been unable to resolve the dispute, either you or we can file a demand for arbitration before the American Arbitration Association (“AAA”) and proceed to arbitration pursuant to paragraphs 15.2-15.13, below.  Either party may file a claim in a small claims court of competent jurisdiction in lieu of filing a demand for arbitration if the dispute falls within the jurisdiction of the small claims court.

The Demand for arbitration form is available at www.adr.org, as are the applicable AAA Commercial Rules.

15.2 Agreement to Arbitrate. If we are unable to resolve any dispute arising between us pursuant to the informal negotiation set forth in paragraph 15.1, above, you and we agree that any dispute, claim or controversy arising out of or relating to these Terms or any incorporated policy, including the applicability, breach, termination, validity, enforcement or interpretation thereof, or any use of the HeadRace Platform and the services provided through or in connection with the HeadRace Platform, (“disputes”) will be settled by binding individual arbitration administered by the AAA.  You and we agree to delegate to the arbitrator all threshold issues of arbitrability, including the enforceability, validity and/or scope of this mandatory arbitration provision.  You and we further agree that all disputes between us, regardless of when they accrued, are subject to the provisions of this arbitration agreement, even claims that accrued before you accepted these Terms.

15.3  Right to Opt-Out of Arbitration.  You have the right to opt out binding arbitration pursuant this Section 15 within 30 days of the date upon which you create your HeadRace account unless a longer period is required by applicable law.  You must notify us in writing of your intent to opt-out by e-mailing a written notification with “arbitration opt-out” in the subject line to:  legal@headrace.com.  To be effective, your email must include: (1) your business name and an individual contact name, (2) your address, and (3) a clear statement that you do not wish to resolve disputes with through arbitration.

15.4  Exceptions to Mandatory Arbitration. The only disputes that are not subject to mandatory arbitration are (i) any claim or cause of action alleging actual or threatened infringement, misappropriation or violation of either party’s copyrights, trademarks, trade secrets, patents, or other intellectual property rights; (ii) any claim or cause of action seeking emergency injunctive relief based on exigent circumstances (e.g., imminent danger or commission of a crime, hacking, cyber-attack); or (iii) any individual claim of sexual assault or sexual harassment arising from your use of the HeadRace Platform.  

15.5 Arbitration Rules and Governing Law. These Terms and this Section 14 evidence a transaction involving commerce and the Federal Arbitration Act therefore governs all substantive and procedural interpretation and enforcement of this provision. To the extent that the Federal Arbitration Act directs the application of state law to any issue, the law of the state of Texas shall apply without regard to or application of a conflicts of law analysis.  The arbitration will be administered by AAA in accordance with its Commercial Arbitration Rules and/or other AAA arbitration rules determined to be applicable by the AAA (the “AAA Rules“), except as modified in this Section 14.  The AAA Rules are available at www.adr.org. In order to initiate arbitration, a completed written demand must be filed with the AAA and served on the other party, as specified in the AAA rules.  The AAA’s Demand for Arbitration form is also available at www.adr.org.

15.6 Modification to AAA Rules - Arbitration Hearing/Location. You and we agree that any arbitration pursuant to this section 14 will be held: (a) in Travis County, Texas; or (b) via phone or video conference; or (c) if all parties agree and the AAA Rules permit, by the submission of documents only to the arbitrator.

15.7 Modification of AAA Rules - Attorney’s Fees and Costs. The AAA assesses arbitration fees and arbitrator compensation pursuant to its fee schedule, available at www.adr.org.  You and we agree that the AAA Commercial Arbitration Fee Schedule shall apply, each party share bear its own arbitration fees as set forth in the AAA Commercial Arbitration Fee Schedule. If the AAA Commercial Arbitration Fee Schedule does not address an assessed fee, we agree to split the payment of that fee.  Each party shall bear its own attorneys’ fees and costs. Either party may request an award of fees if the arbitrator finds that the other party brought a frivolous dispute or the dispute was brought in bad faith.  In the event that either party makes a request for fees and costs based on a frivolous or bad faith filing, the legal standards applicable to a request for attorneys’ fees under Federal Rule of Civil Procedure 11 shall apply.

15.8 Arbitrator’s Award. The arbitrator will issue a reasoned award that includes the essential findings and conclusions of fact and law upon which the award is based.  The Award will be final and binding except to the extent a party moves to vacate it pursuant to section 10 of the FAA.  Either party may move to confirm, vacate or modify the award pursuant to sections 9, 10 and 11 of the FAA and may make such motion in any court of competent with proper jurisdiction. The arbitrator may award any relief allowed by law or the AAA Rules, but declaratory or injunctive relief may be awarded only on an individual basis and only to the extent necessary to provide relief warranted by the claimant’s individual claim.

15.9 No Class Actions, Consolidated or Representative Proceedings. You and we acknowledge and agree that, to the fullest extent permitted by law, we are each waiving the right to participate as a plaintiff or class member in any purported class action lawsuit, class-wide arbitration, private attorney general action, or any other representative or consolidated proceeding. Unless you and we agree in writing, the arbitrator may not consolidate more than one party’s claims and may not otherwise preside over any form of any class or representative proceeding. If there is a final judicial determination that applicable law precludes enforcement of the waiver contained in this paragraph as to any claim, cause of action or requested remedy, then that claim, cause of action or requested remedy, and only that claim, cause of action or requested remedy, will be severed from this Paragraph 15 and will be brought in a court of competent jurisdiction as set forth in this TOU. In the event that a claim, cause of action or requested remedy is severed pursuant to this paragraph, then you and we agree that the claims, causes of action or requested remedies that are not subject to arbitration will be stayed until all arbitrable claims, causes of action and requested remedies are resolved by the arbitrator.

15.10 Severability. With the exception of the class action waiver in paragraph 15.10, above, in the event that any portion of this Arbitration Agreement is deemed illegal or unenforceable, such provision will be severed and the remainder of the Arbitration Agreement will be given full force and effect.

15.12 Changes to Agreement to Arbitrate. HeadRace will notify you of any material changes to this Section 15 by sending a notice to you at the email address associated with your HeadRace account. If HeadRace changes this Paragraph 15 after the date you last accepted these Terms (or accepted any subsequent changes to these Terms), you may reject that change by sending us written notice (including by email) within 30 days of the date the change is effective. Rejecting a new change, however, does not revoke or alter your prior consent to any earlier agreements to arbitrate any dispute between you and HeadRace (or your prior consent to any subsequent changes thereto), which will remain in effect and enforceable as to any dispute between you and HeadRace.

15.13 Survival. This Section 15 will survive any termination of these Terms and will continue to apply even if you stop using the HeadRace Platform or terminate your HeadRace account.

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16. Time Limits for Bringing Disputes.

Any dispute, whether brought in arbitration or in court (when the provisions of paragraph 14, above, do not apply), must be initiated within two years and one day of the date the dispute accrues. If a dispute is not initiated within two years and one day of the date the dispute accrues, you and we waive all such disputes and claims arising out of or related to any such dispute against each other.

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17. Jury Trial Waiver.  

We acknowledge and agree we are each waiving the right to a jury trial for any dispute that is outside the scope of this arbitration provision and is therefore brought in a court of competent jurisdiction.  

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18. Disclaimer of All Warranties

The HeadRace Platform and all related services is provided to you on an “as is” and “as available” basis. You agree that you are using the HeadRace Platform solely at your own risk and without any warranties of any kind.  Accordingly, to the extent permitted by law, HeadRace disclaims all warranties, express or implied, including, but not limited to, implied warranties of merchantability, fitness for a particular purpose, and non-infringement.  HeadRace does not endorse or warrant the existence, conduct, performance, safety, quality, legality or suitability of any Recruiter, candidate or Employer or the truthfulness or accuracy of any Listing uploaded to the HeadRace Platform. HeadRace does not warrant the performance or non-interruption of the HeadRace Platform and reserves the right to discontinue providing the HeadRace Platform, in whole or in part, and all related services, in whole or in part, at any time, under any circumstance and with or without notice to you. Some jurisdictions do not permit the waiver of warranties so the disclaimers set forth in this paragraph may not apply, in whole or in part, to you.

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19. Limitations on Liability.

To the fullest extent permitted by law, neither HeadRace (including all HeadRace parents, subsidiaries, affiliates, officers, agents, partners, suppliers, licensors and all and all personnel) nor any other party involved in creating, producing, or delivering the HeadRace Platform will be liable for any special, incidental, indirect  or  consequential damages or losses (including, but not limited to, loss of money, goodwill or reputation, profits, other intangible losses, punitive damages, damages resulting from business interruption, service interruption, computer damage or system failure, or the cost of substitute products or services), or for any damages for personal or bodily injury or emotional distress arising out of or in connection with any of the following:

  • these Terms or your need to modify practices, content, or behavior, or your loss of or inability to do business, as a result of changes HeadRace makes to these Terms and/or any of our incorporated additional terms or Policies;
  • the use of, or inability to use, the HeadRace Platform;
  • any communications, interactions or meetings you may have with someone you interact with or meet with through, or as a result of, your use of the HeadRace Platform;
  • the Listing or other content you provide (directly or indirectly) to Recruiters, Employers, HeadRace or third parties through or using the HeadRace Platform;
  • delays, disruptions or the discontinuation of the HeadRace Platform;
  • viruses or other malicious software obtained by accessing or linking the HeadRace Platform;
  • glitches, bugs, errors, or inaccuracies of any kind in the HeadRace Platform;
  • damage to your hardware device arising from or related to the use of the HeadRace Platform;
  • the content, actions, or inactions of any third parties;
  • the suspension or other action taken with respect to your account;
  • the duration or manner in which your Listings appear in search results.

These limitations apply regardless of whether any claim, dispute or controversy is based on warranty, contract, tort (including negligence), product liability or any other legal theory, and regardless of whether HeadRace has knowledge of the possibility of such damage, even if a limited remedy set out in these Terms is found to have failed of its essential purpose.

EXCEPT FOR OUR OBLIGATION TO TRANSMIT PAYMENTS PURSUANT TO THE PAYMENT TERMS, IN NO EVENT SHALL ANY AWARD RELATED TO ANY DISPUTE  BETWEEN YOU AND US EXCEED THE TOTAL AMOUNTS YOU HAVE PAID TO US OVER THE  TWELVE (12) MONTHS IMMEDIATELY PRECEDING THE ACT, OMISSION OR OCCURRENCE GIVING RISE TO SUCH LIABILITY. YOU AND WE EXPRESSLY AGREE TO WAIVE THE REMEDY OF RESCISSION WITH RESPECT TO ANY DISPUTE.

Some jurisdictions do not allow the limitations on damages, so the limitations set forth in this paragraph may not apply to you in whole or in part.

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20. Indemnification.

To the maximum extent permitted by applicable law, you agree to release, defend (at HeadRace’s option), indemnify, and hold HeadRace (including all HeadRace parents, subsidiaries, affiliates, officers, agents, partners, suppliers, licensors and all and personnel) harmless from and against any claims, liabilities, damages, losses, and expenses, including, without limitation, reasonable legal fees, that arise out of or relate in any way to your use of HeadRace Platform and/or any content or data that you upload to the HeadRace Platform or otherwise provide to HeadRace in connection with your use of the HeadRace Platform and any service provided by HeadRace. If HeadRace opts to assume the defense and control of any matter subject to indemnification pursuant to this paragraph, then you agree to cooperate fully with HeadRace in asserting available defenses and in providing information as requested.  This obligation to indemnify and hold harmless extends to conduct engaged in by any and all persons who use your account, whether authorized by you or not.

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21. Release

If you have a dispute with one or more users or third parties arising out of or relating to the HeadRace Platform, including the provision or receipt of any service provided through or arising out of, related to or in connection with, the HeadRace Platform, you release us (and our affiliates and subsidiaries, and our and their respective officers, directors, employees and agents) from claims, demands and damages (actual and consequential) of every kind and nature, known and unknown, arising out of or in any way connected with such disputes. In entering into this release, you expressly waive any protections (whether statutory or otherwise) that would otherwise limit the coverage of this release to include only those claims which you may know or suspect to exist in your favor at the time of agreeing to this release.

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22.  Term, Suspension and Termination

22.1 Term. These Terms become effective when you create a HeadRace account. They will remain in effect until either you or we end our relationship pursuant to the terms set forth in these Terms and specifically in this paragraph 20.

22.2. Account Termination With Notice. You may terminate these Terms at any time by providing us with 30 days -notice of your intent to delete your account. HeadRace may terminate these Terms and your account upon 30 days-notice. All notices required by this section will be addressed as set forth in paragraph 22.9, below.

22.3.  Account Termination Without Notice.  HeadRace may terminate these Terms immediately and without notice to you if: (i) you breach the TOU and/or these Terms; (ii) you violate applicable law, or (iii)  we reasonably believe that termination of these Terms and your account is necessary to protect the HeadRace Platform, other users, or third parties. If your account has been inactive for more than two years, we may terminate your account without prior notice.

22.4  Account Suspension. HeadRace may suspend your account, with or without notice, in its sole discretion, if: (i) you breach the TOU and/or these Terms; (ii) you violate applicable laws, regulations, or third-party rights, or (iii) HeadRace believes it is reasonably necessary to protect itself, other users or third parties. If your account is suspended, we will contact you with instructions for reinstatement of your account as appropriate.

22.5 Effect of Termination, Limitation or Suspension. When you delete your account and/or discontinue use of the HeadRace Platform for any reason, or when we terminate your account for any reason, you will not be entitled to recover any of the content you have uploaded, nor will you be entitled to restoration of your account. If we have suspended or limited your use of the HeadRace Platform, you may not circumvent that suspension or limitation by creating a new account or accessing the HeadRace Platform through someone else’s account. In the event that your account is limited, suspended or terminated for any reason, any existing financial obligation that you owe to us will survive the limitation, suspension or termination. For avoidance of doubt, the limitation, suspension or termination of your account, regardless of the reason therefor or the party who initiated the limitation, suspension or termination, does not extinguish, excuse or relieve any existing financial obligations.  To the extent existing financial obligation exist at the time of account limitation, suspension or termination, we will contact you to make alternative payment arrangements.  

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23.  GENERAL

23.1 Choice of Law and Forum Selection for Disputes Exempt from Arbitration

The law of the state of Texas will apply to all claims or disputes that are not subject to arbitration as set forth in paragraph 14, without regard to choice of law principles.  Said claims or disputes will be resolved exclusively by a state or federal court located in Travis County, Texas, and you and HeadRace agree to submit to the personal jurisdiction of the courts located within Travis County, Texas for the purpose of litigating all such claims, disputes, or matters.

23.2  Severability.  Except as otherwise provided in paragraph 14 of these Terms, if any provision of these Terms is held to be invalid, void, or for any reason unenforceable, such provision shall be struck out and shall not affect the validity and enforceability of the remaining provisions. HeadRace may assign these Terms in its sole discretion and in such event, we will post notice on www. Headrace.com.

23.3  Headings.  The headings used in these Terms are for reference purposes only and do not limit the scope or extent of any paragraph or section.

23.4  No Waiver.  Our failure to act with respect to a breach by you or others does not waive our right to act with respect to subsequent or similar breaches. We do not guarantee we will take action against all breaches of these Terms.

23.5  Amendment of Terms.  We reserve the right to update these Terms, including incorporated terms and policies, at any time.  We will post amended terms on www.headrace.com and they will become effective 30 days after posting. You agree that your continued use of the HeadRace Platform after modified Terms become effective will constitute your objective manifestation of assent to, and acceptance, of the revised terms.  If HeadRace makes a material revision to these terms then we will notify you of those revisions by sending an email to you at the email address associated with your HeadRace account that summarizes the revisions and modification.  HeadRace has sole discretion to determine whether a modification is material such that notice is required.  You acknowledge and agree that it is your responsibility to check headrace.com periodically for updates.

23.6  Authority to Act.  If you create or use an account on behalf of a business entity, you represent that you are authorized to act on behalf of such business and bind the business to these Terms. An account that is created in the name of a business is owned and controlled by the business entity. No agency, partnership, joint venture, employee-employer or franchiser-franchisee relationship is intended or created by these Terms or your use of the HeadRace Platform.

23.7.  Entire Agreement.  These Terms and the incorporated terms and policies set forth the entire understanding and agreement between you and HeadRace and supersede all prior understandings and agreements of the parties.   These Terms may be supplemented only upon the express written consent of HeadRace and in a writing signed by HeadRace. Amendments to this TOU and these Terms are made pursuant to paragraph 22.5.

23.8  Survival.  The following Sections survive any termination of this User Agreement: Dispute Resolution and Mandatory Arbitration, Disclaimer of Warranties; Limitation of Liability; Release, Indemnity, and General.

23.9  Notices.  Notices required pursuant to these Terms will be delivered as follows:

If to HeadRace:  

Headrace Technologies, Inc.

901 S MoPac Expy

Building 4, Suite 343

Austin, TX 78746

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Or:

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legal@headrace.com

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If to Employer or Recruiter:  Notice will be provided to the email and/or mailing address associated with your account.

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23.10 Cumulative Remedies.  All rights and remedies provided in this TOU are cumulative and not exclusive, and the exercise by any party of any right or remedy does not preclude the exercise of any other rights or remedies that may now or subsequently be available at law, in equity, by statute, in any other agreement between the parties, or otherwise. Notwithstanding the above, the parties agree, acknowledge and intend that the remedy set forth in paragraph 9, above, for circumventing the HeadRace Platform in placing a candidate is HeadRace’s exclusive remedy for such circumvention.

23.11  Force Majeure.  (a) No party to these Terms shall be liable or responsible to the other party, or be deemed to have defaulted under or breached these Terms, for any failure or delay in fulfilling or performing any term or condition set forth in the TOU and/or these Terms when and to the extent such failure or delay is caused by or results from unpreventable acts or conditions that are beyond the reasonable control of the impacted party ("Impacted Party"), including, without limitation, the following force majeure events ("Force Majeure Event(s)"): (a) acts of God; (b) flood, fire, earthquake; (c) sudden outbreak of endemic, epidemic or pandemic disease; (d) explosion; (e) war, invasion, hostilities (whether war is declared or not), terrorist threats or acts, riot or other civil unrest; (f) government order, law, or actions; (g) embargoes or blockades in effect on or after the date of this Agreement; (h) national or regional emergency; (i) strikes, labor stoppages or slowdowns, or other industrial disturbances; (j) telecommunication/internet breakdowns, power outages or shortages, inadequate transportation services; (k) the death or incapacity of a person upon whom performance of any term or condition hereunder is dependent and (l) any other unpreventable event that is beyond the reasonable control of the Impacted Party, whether foreseeable or not. For avoidance of doubt, a general downturn in a relevant economic market that makes payment difficult for the Impacted Party is not a Force Majeure Event under this paragraph.

(b)  When a force majeure event occurs, the Impacted Party shall give notice to the other Party, within 5 days of the onset of the Force Majeure Event, stating the period of time the occurrence is expected to continue. The Impacted Party shall use diligent efforts to end the failure or delay and ensure the effects of such Force Majeure Event are minimized. The Impacted Party shall resume the performance of its obligations as soon as reasonably practicable after the removal of the cause. In the event that the Impacted Party's failure or delay remains uncured for a period of 10 consecutive days following written notice given by it under this Section 22.11, the non-impacted party may thereafter terminate these Terms upon 10 days' written notice.