This website is owned and operated by MyCastingNet Pty Limited (ACN 143 564 514) ("MyCastingNet", "we", "us", "our").
These Terms and Conditions of Appointment ("Terms") apply to the provision of casting services by MyCastingNet to a production company or television network which registers for a company casting account ("Customer"). These Terms will automatically apply each time the Customer accepts a Quotation from MyCastingNet.
Unless otherwise defined elsewhere, capitalised words used in these Terms have the meaning given to those words in clause 1.1 below.
Unless inconsistent with the context, the following capitalised words shall have the following meanings:
"Active Engagement" means an engagement of MyCastingNet to provide the Services (in respect of a Quotation accepted by the Customer) which is not yet completed by MyCastingNet within the agreed scope of the applicable Quotation;
"Applicant" means an individual who prepares and submits a Casting Application via the Website;
"Business Day" means any day which is not a Saturday, Sunday or a gazetted public holiday in Sydney, Australia;
Casting Application means an application available to be submitted to MyCastingNet and the Customer via the Website by individuals who wish to apply to appear in the relevant television program;
"Casting Data" means any and all data submitted by the Applicant in a Casting Application;
"Commencement Date" means the date on which the Customer confirms acceptance of the relevant Quotation;
"Confidential Information" means all information not intended by MyCastingNet to be in the public domain, however recorded or retained, and whether oral or written or electronically stored, including but not limited to any information about the customers, assets, affairs, business concepts, designs, ideas, trade secrets, systems, practices, procedures, strategies, financial data and general business information of MyCastingNet;
"Corporations Act" means the Corporations Act 2001 (Cth);
"Customer Personnel" means the officers, employees, agents or subcontractors of the Customer, including anyone who purports to act on behalf of the Customer;
"Customer Data" means all data that is uploaded to the Website by or on behalf of the Customer, including information about the Casting Application;
"Fixed Term" means the fixed term (if applicable) set out in a Quotation for which the Service will be available for the Customer;
"Fixed Term Account" means an account in respect of which a Fixed Term has been accepted by the Customer in the relevant Quotation;
"Fixed Term Fee" means the fee (excluding GST) payable by the Customer in accordance with the pricing specified in the Quotation for a Fixed Term Account.;
"Force Majeure" means acts of God, acts of government, strikes, lockouts or other industrial disturbances, blockades, wars, insurrections or riots, epidemics, landslides, fires, storms, floods, explosions or other similar causes beyond the control of a party, provided that such party has not substantially contributed to the occurrence of such acts through its own default or negligence;
"GST" has the meaning given to that term in the GST law and includes any replacement or subsequent similar tax;
"GST law" has the same meaning as is ascribed to that term in the A New Tax System (Goods and Services Tax) Act 1999 (Cth);
"Initial Term" means, for Customers on a Subscription Account, twelve (12) months from the Commencement Date;
"Intellectual Property Rights" includes all intellectual property rights and industrial property rights throughout the world including rights in respect of or in connection with:
whether or not now existing and whether or not registered or registrable and includes any right to apply for the registration of such rights and includes all renewals and extensions;
"Privacy Act" means the Privacy Act 1988 (Cth);
"Privacy Laws" means:
"Personal Information" means all information about a natural person that is collected or otherwise obtained or held by MyCastingNet in connection with the provision of the Service and that is defined as personal information in accordance with the Privacy Act or is personal information to which Privacy Laws apply;
"Quotation" means the quotation provided by MyCastingNet to the Customer setting out the scope of the Services to be provided by MyCastingNet and the applicable Fixed Term Fee or Subscription Fees payable by the Customer;
"Renewal Term" has the meaning given to that term in clause 2.2;
"Service"means the service made available to the Customer through the Website or otherwise as agreed between MyCastingNet and the Customer, including:
"Subscription Account" means an account that provides the Customer with access to the Service for an ongoing period of time as agreed between MyCastingNet and the Customer;
"Subscription Fees" means the yearly fee (excluding GST) payable by the Customer in accordance with the pricing specified in the Quotation supplied by MyCastingNet to the Customer for a Subscription Account;
"Website" means www.mycastingnet.com and go.mycastingnet.com or any other website as agreed by the parties.
In these terms and conditions, unless the context otherwise indicates:
2.1 These Terms commence on the Commencement Date and continue for the Term, unless terminated earlier in accordance with these Terms.
2.2 For Customers on a Subscription Account, the Term shall automatically renew upon the expiry of the Initial Term for a further twelve (12) month period and for each subsequent consecutive twelve (12) month period (each a "Renewal Term") until either party provides the other with written notification of non-renewal. Such notification must be provided at least thirty (30) days prior to the expiry of the Initial Term or the applicable Renewal Term, as the case may be.
2.3 For Customers on Fixed Term Accounts, the Term may be extended as agreed in writing between the Customer and MyCastingNet.
2.4 Upon expiration of the Term:
3.1 In completing an enquiry form and accepting a Quotation from MyCastingNet, the Customer acknowledges and confirms that:
3.2 MyCastingNet will prepare a Quotation for the use of the Service by the Customer based on the enquiry form submitted to MyCastingNet by the Customer and any correspondence and discussions between MyCastingNet and the Customer.
3.3 The Quotation will set out whether the Customer's use of the Service is based on a Fixed Term Account or a Subscription Account.
3.4 The fees and charges in the Quotation will be based on pricing set out in the rate card published on the Website unless otherwise agreed in a Quotation.
3.5 In the event of an inconsistency between:
3.6 The Customer may accept a Quotation by providing written confirmation to MyCastingNet of its acceptance of the Quotation. A Quotation will be deemed to have been accepted if the Customer provides the content required for the Casting Application for the purposes of MyCastingNet creating the Casting Application.
4.1 The Customer will be responsible for providing MyCastingNet with:
4.2 The Customer acknowledges and agrees that:
5.1 MyCastingNet grants the Customer access to and use of Service during the Term, subject always to the applicable Quotation(s) accepted by the Customer during the Term. This right is non-exclusive, non-transferable and limited by and subject to the Customer's complete and ongoing compliance with these Terms.
5.2 MyCastingNet will make the relevant Casting Applications available for completion by the public on the Website, in accordance with the applicable Quotation, during the Term.
5.3 The Customer acknowledges that MyCastingNet makes no representations or guarantees as to the number and/or quality of Applicants who may prepare and submit Casting Applications during the Term.
5.4 The Customer agrees to comply with all directions from MyCastingNet relating to the access to and use of the Service.
5.6 MyCastingNet may, in its absolute discretion, retain and use for its own benefit, any Casting Data or information concerning the use of the Service by the Customer for the purposes of monitoring and improving the Service. For the avoidance of doubt MyCastingNet may use the Casting Data for the use or benefit of any third party
5.7 The Customer undertakes to ensure that it complies with the provisions of any relevant statutes, regulations, laws and the requirements of any government authority in relation to the use of the Service, including in relation to the collection and use of Customer Data.
5.8 The Customer agrees and confirms that the Customer is responsible and liable for all acts or omissions of the Customer Personnel as if those acts and omissions were the acts and omissions of the Customer.
5.9 Notwithstanding any other provision of these Terms, the Customer acknowledges, agrees and confirms that the use by the Customer of the Service may be subject to certain limitations based upon the Quotation accepted by the Customer, including without limitation to a restriction on monthly transaction volumes. The specifications and limitations of the Service are published on the Website and may be varied from time to time.
5.10 The Customer undertakes not to provide any content for inclusion on the Website which:
5.11 The Customer undertakes to not:
5.12 Notwithstanding any other provision of these Terms, the Customer undertakes to not provide competitors of MyCastingNet (including without limitation directors, shareholders, employees, agents or consultants of any competitors of MyCastingNet) access to the Service.
5.13 If the information of the Customer changes, the Customer is responsible for providing MyCastingNet with up to date information.
5.14 The Customer:
5.15 The Customer acknowledges that MyCastingNet may subcontract the whole, or any part, of the obligations of MyCastingNet under these Terms, without obtaining the prior consent of the Customer.
6.1 MyCastingNet agrees to provide the Services subject to the Customer paying MyCastingNet the applicable Subscription Fees or Fixed Term Fee specified in the applicable Quotation in accordance with clauses 6.3 or 6.4 below (as applicable), time being of the essence.
6.2 MyCastingNet will invoice the Customer for the applicable Subscription Fees or Fixed Term Fee in accordance with the applicable Quotation.
6.3 Where a Customer is on a Subscription Account, subject to clause 15.6, the Subscription Fees will be payable in advance by twelve (12) equal instalments on or before the first day of each calendar month, unless otherwise specified in the applicable Quotation.
6.4 Where a customer is on a Fixed Term Account, subject to clause 15.6, the Fixed Term Fee will be payable in advance on the Commencement Date. The Fixed Term Fee will be non-refundable, regardless of the extent to which the Customer utilises the Services in accordance with the applicable Quotation.
6.5 Certain features of the Service are billed on a metered, one-time, or pay-as-you-go basis, in accordance with MyCastingNet's then current pricing published on the Website, and such payments are due as follows (except as otherwise provided in the applicable Quotation):
6.6 If Customer considers in good faith that an invoice exceeds the amount properly payable as calculated pursuant to the Quotation, the Customer must:
6.7 The Customer acknowledges and confirms that MyCastingNet may change the Subscription Fees with effect from the start of the next Renewal Term by notifying the Customer not less than forty-five (45) days prior to the commencement of such Renewal Term. If the Term is extended for the next Renewal Term, the new Subscription Fees shall apply to that Renewal Term.
MyCastingNet reserves the right to immediately, and without notice to the Customer, terminate the right of the Customer to access to and use of the Service if:
8.1 The Customer acknowledges and confirms that:
9.1 The Customer must treat as confidential all Confidential Information which comes into the possession of the Customer, pursuant to or as a result of its use of the Service and may only disclose such Confidential Information to Customer Personnel who need to know such Confidential Information to enable them to carry out their duties to the Customer for performance of the obligations of the Customer under these Terms.
9.2 The Customer must not, without the prior written permission of MyCastingNet, copy or cause to be copied, disclosed or communicated to the public Confidential Information to a third party, or otherwise use or exploit the Confidential Information.
9.3 The foregoing obligations and commitments not to use and/or disclose Confidential Information shall not apply to:
9.4 The obligations of the Customer under this clause shall survive the expiration or earlier termination of the Term.
10.1 The Customer acknowledges and confirms that, unless otherwise agreed in writing, MyCastingNet shall retain all Intellectual Property Rights associated with the Service other than the Intellectual Property Rights in the Customer Data or Casting Data.
10.2 The Customer acknowledges confirms and agrees that:
10.3 Subject only to clause 10.4 below, each of the Customer and MyCastingNet acknowledge and confirm that data generated in connection with the Customer's use of the Service, including data relating to the Applicants' use of the Website (other than Casting Data itself), shall be owned by MyCastingNet and nothing in these Terms or otherwise confers any rights on the Customer in relation to such data (including without limitation, Intellectual Property Rights or other proprietary rights).
10.4 Each of the Customer and MyCastingNet acknowledge and confirm that, as between MyCastingNet and the Customer, ownership of Customer Data and Casting Data remains with the Customer (including without limitation, Intellectual Property Rights or other proprietary rights).
10.5 The Customer hereby grants MyCastingNet and its affiliates a worldwide, non-exclusive, fully paid-up, royalty-free, perpetual, irrevocable, sublicensable and transferable license to:
10.6 The Customer also agrees to irrevocably waive (and cause to be waived) any claims and assertions of so-called "moral rights" or rights of attribution with respect to the Customer Data and Casting Data.
10.7 MyCastingNet has no obligation to, and does not represent or warrant that it will, publish Customer Data, and reserves the right, in its sole discretion, to refuse to allow any particular Customer Data or Casting Data to be uploaded, transmitted or stored via the Service, or to remove any Customer Data and Casting Data at any time without notice or liability to the Customer.
11.1 The Customer represents and warrants that:
11.2 The Customer acknowledges and agrees that:
11.3 MyCastingNet acknowledges and confirms that, subject to clause 10.3 above, it will only use the Customer Data and Casting Data as is necessary to provide the Services to the Customer in accordance with these Terms.
12.1 Where Personal Information is collected by MyCastingNet from the Customer for the purposes of the Customer completing an enquiry form or in the course of the Customer using the Service, MyCastingNet confirms that:
12.2 Where Casting Data is collected, created, stored, held, used, disclosed in connection with the use of the Service by the Customer:
12.3 The Customer agrees to assist and cooperate with MyCastingNet in respect of any obligations arising under Privacy Laws including but not limited to with respect to:
12.4 The Customer must ensure that it has obtained the necessary consents and permissions, in writing where practicable, from any individuals whose Personal Information will be provided to MyCastingNet.
12.5 The parties acknowledge that:
13.1 Subject to clause 13.2, any condition or warranty which would otherwise be implied in this agreement is hereby excluded.
13.2 Where legislation implies in these Terms any condition or warranty, and that legislation avoids or prohibits provisions in a contract excluding or modifying the application of or exercise of or liability under such condition or warranty, the condition or warranty shall be deemed to be included in these Terms. However, to the extent permissible under applicable law, the liability of MyCastingNet for any breach of such condition or warranty shall be limited, at the option of MyCastingNet, to one or more of the following, if the breach relates to services:
14.1 The Customer acknowledges that:
14.2 The Service is provided "as is," and MyCastingNet hereby expressly disclaims any and all warranties and conditions of any kind or nature, whether express, implied, or statutory, including without limitation implied warranties of merchantability and fitness for a particular purpose. MyCastingNet does not warrant or represent that the Service, or both will be free from bugs or that the use of the Website or Service will be uninterrupted or error free, and MyCastingNet does not make any other representations regarding the use, or the results of use, of the Website or Service in terms of accuracy, reliability or otherwise.
14.3 Neither party shall be liable for any loss of use or goodwill, interruption of business, loss or inaccuracy of business information or data, lost profits, cost of procurement of substitute services, or any indirect, special, incidental, exemplary, or consequential damages of any kind regardless of the form of action, whether in contract, tort (including negligence), strict product liability, or otherwise, even if it has been advised of the possibility of such damages.
14.4 MyCastingNet's and its affiliates' and suppliers' maximum aggregate total liability to the Customer arising from or relating to these Terms or the Service, regardless of the form of action (whether in contract, tort, strict product liability, or otherwise), shall be limited in the aggregate to the total of all payments received by MyCastingNet or invoiced to the Customer in the twelve (12) months prior to the event(s) giving rise to such liability.
14.5 To the extent that the applicable law does not allow limitations on implied warranties or conditions, or the exclusion or limitation of liability for consequential or incidental damages, the above limitations will be enforced to the maximum extent permitted under applicable law.
14.6 The Customer hereby indemnifies and undertakes to keep indemnified MyCastingNet and the officers, directors, employees and agents of MyCastingNet from and against any and all loss (including legal costs and expenses on a solicitor and own client basis) or liability incurred or suffered by MyCastingNet and the officers, directors, employees and agents of MyCastingNet arising from any claim, demand, suit, action or proceeding by any person against any of those indemnified where such loss, cost, expense or liability arose out of or in connection with:
14.7 The rights and obligations of each of the parties under this clause 14 will survive expiration or termination of these Terms.
15.1 Without limiting the rights of MyCastingNet under clause 7, MyCastingNet may terminate its obligations under these Terms by notice in writing to the Customer if the Customer:
15.2 Upon expiration of the Term:
15.3 If notice is given to the Customer pursuant to clause 15.1, MyCastingNet may, in addition to terminating these Terms:
15.4 The Customer may terminate the obligations of the Customer under these Terms by notice in writing to MyCastingNet if MyCastingNet becomes Insolvent.
15.5 The Customer may terminate these Terms for convenience by not less than thirty (30) days' prior written notice to MyCastingNet, provided always that any termination of these Terms by the Customer pursuant to this clause 15.5 shall not relieve the Customer of any payment obligations under clause 6 of these Terms and shall not limit MyCastingNet from pursuing any additional or alternative remedies provided at law.
15.6 Any outstanding Subscription Fees or Fixed Term Fees shall become immediately due and payable to MyCastingNet upon termination by the Customer pursuant to clause 15.4.
15.7 MyCastingNet may, at any time upon written notice to the Customer, terminate its obligations under these Terms in whole or in part for convenience, subject to a refund of Fixed Term Fees or Subscription Fees paid by Customer in advance in an amount prorated against the portion of the prepaid Fixed Term or subscription term remaining as of the effective date of termination.
16.1 Neither party is liable to the other party in respect of the results of any delay or failure to perform its obligations pursuant to these Terms if such delay or failure is caused by an event of Force Majeure.
16.2 The performance of the obligations of a party will be suspended for the period of an event of Force Majeure.
16.3 If a delay or failure of the Customer to perform the obligations of the Customer under these Terms due to an event of Force Majeure exceeds forty-five (45) Business Days, MyCastingNet may immediately terminate these Terms on providing notice in writing to the Customer.
17.1 Despite any other provision in these Terms, if a party ("Supplier") makes a supply under or in connection with these Terms on which GST is imposed (not being a supply the consideration for which is stated to be GST inclusive):
17.2 The Recipient need not make a payment due under this clause 17 in respect of a taxable supply until the Supplier has given the Recipient a tax invoice for the supply to which the payment relates.
These Terms constitute the entire agreement between the parties and supersede all prior representations, agreements, statements an understanding, whether verbal or in writing.
19.1 In the event of a dispute, controversy or claim arising in relation to the Service (including these Terms) (a "Dispute"), the party raising the Dispute must notify the other party in writing of the existence and nature of the Dispute including detailed particulars of the dispute ("Notice of Dispute") and the parties shall use their best endeavours to resolve the Dispute in good faith. MyCastingNet's address for Notice is:
MyCastingNet, Pty Ltd
Level 2, 341 Barrenjoey Road,
Newport Beach, New South Wales 2106, Australia.
19.2 The Customer acknowledges that MyCastingNet must be allowed a reasonable opportunity to consider and address the Dispute and respond to the Customer and MyCastingNet will respond to the Notice of Dispute within ten (10) Business Days of receipt.
19.3 The parties agree to use good faith efforts to resolve the Dispute, but If the parties do not reach an agreement to do so within twenty (20) Business Days after the Notice of Dispute is received, the Customer or MyCastingNet may appoint a mediator in accordance with clause 19.4.
19.4 The parties will agree upon the identity of a mediator within 5 (five) Business Days of a Notice of Dispute being properly given and, failing agreement, the mediator will be nominated by the chief executive of the Australian Disputes Centre Limited (ADCL) on the request of any party. When choosing a mediator, the parties (or ADCL as the case may be) must have regard to the nature of the dispute and the relevant expertise of the mediator in respect of the nature of the Dispute.
19.5 The parties must, within five (5) Business Days of the appointment of the mediator, confer in the presence of the mediator, either in person or by telephone conference, to:
19.6 The parties both agree that this clause 19 does not apply in relation to
20.1 These Terms are governed by the laws of New South Wales, Australia.
20.2 To the extent that any action in court of law is permitted hereunder, each party irrevocably and unconditionally submits to the non-exclusive jurisdiction of the courts of New South Wales and courts of appeal from them. Each party waives any right it has to object to an action being brought in those courts, to claim that the action has been brought in an inconvenient forum or to claim that those courts do not have jurisdiction.
20.3 Without preventing any other mode of service, any document in an action including, without limitation, any writ of summons or other originating process or any third or other party notice may be served on a party by being delivered to or left for that party with respect to:
20.4 A notice, approval, consent or other communication in connection with these Terms:
20.5 Unless a later time is specified in it a notice, approval, consent or other communication takes effect from the time it is received.
20.6 A letter is taken to be received on the third day after posting.
20.7 Any present or future legislation which operates to vary an obligation or right, power or remedy of a person in connection with these Terms is excluded except to the extent that its exclusion is prohibited or rendered ineffective by law.
20.8 In the event that any provision of these Terms is held to be invalid or unenforceable, then:
20.9 The Customer may not assign these Terms, whether directly or indirectly, expressly or by operation of law, including in connection with a merger or change of control, without the prior written consent of MyCastingNet, and any such attempted assignment shall be void and of no effect. MyCastingNet may assign these Terms without restriction. Subject to the foregoing, these Terms shall be binding on the parties and their respective successors and permitted assigns.
20.10 The failure to exercise, or delay in exercising, a right, power or remedy provided in these Terms or by law shall not constitute a waiver of that right, power or remedy. MyCastingNet's waiver of any obligation or breach of these Terms shall not operate as a waiver of any other obligation or subsequent breach of these Terms.