Employer/Member Terms & Conditions of Use
Better Built Hiring Initiative
Updated: January 25, 2024
Background; the Services.
As a service to it Members, Western Wall & Ceiling Contractors, Inc. (“WWCCA”) has established a website regarding Better Built Hiring Initiative to obtain contact information from individuals who are interested in being contacted by WWCCA Employer/Members for potential hiring and employment. WWCCA is offering its Members access to this contact information through a website portal, provided they agree to the terms set forth in this Agreement. By accessing this information, you (“Member”) agree to the terms and conditions set forth herein as to the services provided by WWCCA under this Agreement (“Services”).
Right to Use; Restrictions and Limitations
Right to Use for End Users.
Subject to the terms and conditions of this Agreement, WWCCA grants to Member, and Employees of Member who have created an account and agreed to the terms and conditions set forth in this Agreement (collectively, “Member”), a limited, nonexclusive, nontransferable and revocable right and license to use and access the Services via the Better Built Hiring Initiative Website.
Use By Members
Member will use commercially reasonable efforts to ensure that Member and its Employees and agents comply with the terms of this Agreement and any terms of use, privacy policies or similar limitations (the “Terms”) that may be set forth on Better Built Hiring Initiative Websites from time to time. When Member accesses Better Built Hiring Initiative Websites for the first time, it will be required to accept and agree to the Terms. WWCCA will use commercially reasonable efforts to bring any changes to the Terms to the attention of Member.
Limitations.
Member will use the Services only for the uses described or referenced in this Agreement. Neither Member nor its Employees or agents will (a) reproduce, download, modify or distribute all or any of a portion of the Services or any intellectual property relating to such services, including without limitation any computer code or (b) reverse engineer, decompile, disassemble, access the computer code relating to the Services. Member shall not remove Better Built Hiring Initiative or WWCCA logos, Terms, trademarks, or similar materials from the Services without WWCCA’s prior written consent. Member may use the Services only for lawful purposes and in a lawful manner consistent in all material respects with all applicable laws, statutes and regulations relating to employment and only for hiring for its own purposes, and shall not sell or transfer Services or information acquired through Services to other employers or entities.
Hire Reporting.
Upon request by WWCCA, Member will report the hiring of successful employment candidates who were identified through the Website.
Content.
Member understands that information regarding Referrals provided through or by means of Websites (“Referral Content”) has not been independently reviewed or verified by WWCCA and that WWCCA will not be responsible for the accuracy or veracity of such information.
Use of Services;
In using the Services and hiring employees through use of the Website, Member will be responsible for adequately describing its open positions and the qualities and characteristics that a Referral should possess in order to qualify for that position. Member will also be responsible for adequately describing the compensation and other benefits associated with such position. Member shall be solely responsible for providing, updating, uploading and maintaining any and all Member information and/or materials provided to prospective employees (“Member Content”). For the avoidance of doubt, the Member Content includes, without limitation, information about jobs, job postings, employees, and applicants. Member assumes sole responsibility for the accuracy of the Member Content, and for ensuring that the Member Content does not infringe or violate any right of any third party or any law, statute or regulation (in each case, in any material respect). Member shall be solely responsible for all hiring decisions and shall comply with all anti-discrimination and other employment laws relating to the hiring and employment of its employees.
Company Representatives.
The Services shall be performed in conjunction with Member personnel, who must each individually create an account and agree to be bound to this Agreement. Member shall appoint its Member Representatives, and shall provide WWCCA with the contact information for such Member Representative(s), including name(s), title(s), email address(es), and telephone number(s).
Availability of Services
Subject to the terms and conditions of this Agreement, WWCCA shall provide the Services on a twenty-four (24) hours a day, seven (7) days a week basis throughout the term of this Agreement. Member acknowledges and agrees that from time to time the Services may be inaccessible or inoperable due to equipment malfunctions, periodic maintenance procedures, repairs or upgrades which WWCCA may undertake from time to time, service malfunctions and causes beyond the reasonable control of WWCCA or which are not reasonably foreseeable by WWCCA, including, without limitation, interruption or failure of telecommunication or digital transmission links, including delays or failures due to Member’s Internet service provider, hostile network attacks, network congestion or other failures. Member agrees that WWCCA may not have control over the stability and throughput speed of the Internet or the availability of Services on a continuous or uninterrupted basis.
Confidentiality; Privacy
Subject to the other terms and conditions of this Agreement, as a result of this Agreement and the ongoing relationship of the parties, each of the parties may have access to or acquire knowledge of confidential and proprietary information concerning the other and the other’s business (the “Confidential Information”), and each agrees to treat the Confidential Information as confidential. All Confidential Information shall remain solely the property of the disclosing party, and the recipient shall maintain and protect the confidentiality of such Confidential Information with the same degree of care used to protect its own confidential information, but in any event, no less than a reasonable degree of care. Each of the parties agrees not to utilize another’s Confidential Information for any purpose other than the performance of this Agreement.
The Member Content, together with information regarding the manner in which Member uses the Services, will not be disclosed by WWCCA except as necessary to carry out the terms and conditions of this Agreement or (a) to comply with law or comply with legal process served upon ERC, (b) to protect and defend WWCCA’s rights or property or those of WWCCA’s members, vendors, and third party providers, or (c) to protect the personal safety of the Website users or the public. By entering this Agreement and using the Services, Member agrees that WWCCA may gather and use in any manner desired information describing the habits, usage patterns or demographics of those persons who use its Websites.
Title
Title to any software and hardware now owned by WWCCA and/or its third party providers and used in providing the Services remains exclusively owned by WWCCA and/or its third party providers and is not transferred to Member. As between the parties, Member owns all right, title and interest in and to the Member Content except for the limited rights to the Member Content granted to WWCCA hereunder.
Warranties, Disclaimers
Limited Warranty.
Except as otherwise set forth in this Agreement, WWCCA warrants that it shall provide the Services in a professional manner and that it shall immediately notify the Member of any complaints or filing made through the software. EXCEPT FOR THE EXPRESS LIMITED WARRANTY SET FORTH IN THIS SECTION, THE SERVICES ARE PROVIDED ‘AS IS’ WITHOUT WARRANTY OF ANY KIND, EXPRESS OR IMPLIED, INCLUDING, BUT NOT LIMITED TO, WARRANTIES OF PERFORMANCE, NONINFRINGEMENT, MERCHANTABILITY OR FITNESS FOR A PARTICULAR PURPOSE.
Limitation of Liability.
IN NO EVENT SHALL EITHER PARTY BE LIABLE TO THE OTHER PARTY, END USERS, OR TO ANY THIRD PARTY FOR CONSEQUENTIAL, INCIDENTAL, SPECIAL, INDIRECT OR PUNITIVE DAMAGES ARISING OUT OF OR RELATING TO THIS AGREEMENT OR THE USE OF THE SERVICES, EVEN IF THE OTHER PARTY HAS BEEN ADVISED, KNEW OR SHOULD HAVE KNOWN OF THE POSSIBILITY OF SUCH DAMAGES. Member’s exclusive remedy for breach by WWCCA of its limited warranty shall be to discontinue the Services.
Indemnification.
Member will defend, indemnify and hold harmless WWCCA, its employees, officers, directors, members, agents, and successors and assigns from all damages and liability including, without limitation, reasonable attorneys’ fees, incurred as a result of Member’s violation of its obligations under this Agreement, or the negligent or willful acts of Member. Member’s obligation to indemnify under this provision shall survive termination of this Agreement. WWCCA will defend, indemnify and hold harmless Member, its employees, officers, agents, and successors and assigns from all damages and liability including, without limitation, reasonable attorneys’ fees, incurred as a result of WWCCA’s violation of its obligations under this Agreement, or the negligent or willful acts of WWCCA, its employees, or agents, or violation of any third party intellectual property or privacy rights. WWCCA’s obligation to indemnity under this provision shall survive termination of this Agreement.
General Provisions
Notice.
Any notice or other communication required or permitted by this Agreement shall be in writing and shall be deemed given if delivered personally or by commercial messenger or courier service, or mailed by registered or certified mail (return receipt requested) or sent via email (with acknowledgment of complete transmission) to a party to this Agreement at such party’s known address (or at such other address for a party as may be specified by notice). If by mail, delivery shall be deemed effective three business days after mailing in accordance with this Section and to the addresses noted above.
Independent Contractors.
Each party is an independent contractor and the parties shall not have the authority to bind, represent or commit the other. Nothing in this Agreement shall be deemed or construed to create joint venture, partnership or agency relationship between the parties. The parties agree and acknowledge that no Employee or Agent of Member has or shall have any rights as a third party beneficiary or otherwise arising from or relating to this Agreement.
Arbitration.
Any unresolved claim, dispute, or controversy arising from this Agreement shall be submitted to arbitration under the rules of the American Arbitration Association (the “AAA”) or, by mutual consent, any other recognized arbitration association. The rules of the AAA or other association shall apply and the Agreement shall be construed according to the commercial laws of the State of California, except that this arbitration provision shall be governed by the Federal Arbitration Act. The arbitration shall take place in Orange, California. The decision of the arbitrator(s) shall be binding upon the parties. The costs of any such arbitration, including without limitation, the administrative fee, arbitrator’s fees, attorneys’ fees, fees of expert witnesses and travel expenses shall be borne by the losing party. Judgment upon the award of the arbitrator may be entered in any court having jurisdiction, or application may be made to such court for judicial acceptance of the award or an order of enforcement. The prevailing party in any proceeding to enforce the judgment awarded by the arbitrator shall be entitled to all attorneys’ fees, expert witness fees; travel expenses, court costs; and other litigation expenses.
Waiver / Severability.
The waiver or failure of either party to exercise any right in any respect provided for herein shall not be deemed a waiver of any further right hereunder. If any provision of this Agreement is determined to be invalid or unenforceable under any applicable statute or rule of law, it is to that extent to be deemed omitted, and the balance of the Agreement shall remain enforceable.
If any provision of this Agreement is determined to be invalid or unenforceable under any applicable statute or rule of law, it is to that extent to be deemed omitted, and the balance of the Agreement shall remain enforceable.
Assignment and Transfer.
Either party may assign to a successor in interest without prior consent of the other party, but shall advise the other party of the assignment.
Termination
This Agreement shall remain in full force and effect until and unless terminated by either party by providing at least thirty days written notice to the other party. Services shall be discontinued upon termination of this Agreement.