This website is owned by, and content is published by Mycastingnet Pty Limited A. C. N. 143 564 514 (“Mycastingnet”).
1. DEFINITIONS AND INTERPRETATION
Unless inconsistent with the context, the following expressions shall have the following meanings:
“Business Day” means any day which is not a Saturday, Sunday or a gazetted public holiday in Sydney;
“Commencement Date” means the date on which Mycastingnet provides the Customer with access to the Website;
“Confidential Information” means all information, however recorded or retained and whether oral or written or electronically stored about all or any of the following:
- the Website;
- the Content;
- the Software;
- information, ideas and concepts related to Mycastingnet or the business of Mycastingnet;
- ideas or concepts of any employee or consultant of Mycastingnet shared with, or disclosed to the Customer;
- the affairs of Mycastingnet;
- arrangements between Mycastingnet and:
- any person other than the Customer; and
- the Customer;
- trade secrets of Mycastingnet;
- the management, policies, strategies, practices and procedures of Mycastingnet;
- any other information or communication that Mycastingnet notifies the Customer as being confidential;
- the financial position of Mycastingnet;
but does not include information which:
- is or becomes public knowledge other than as a result of any breach by the Customer of this Agreement;
- is in the possession of the Customer without restriction in relation to disclosure before the date of receipt from Mycastingnet;
- has been independently developed or acquired by the Customer without reference to Mycastingnet’s Confidential Information;
“Content” means any information, text, materials, graphics, logos, button icons, images, video and audio clips, trade marks (whether registered or not), advertisements, layout, arrangement, graphical user interface, look and feel, and control features of the Website;
“Corporations Act” means the Corporations Act of Australia.
“Customer” means the person who registers to use the Service, and where the context permits, includes any entity on whose behalf that person registers to use the Service, and any person or organisation that uses the Service with the authorisation of that person or entity;
“Customer Personnel” means the officers, employees, agents or subcontractors of the Customer;
“Data” means all data that is uploaded to the Website by or on behalf of the Customer;
“Force Majeure” mmeans 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;
“Initial Term” means twelve (12) months from the Commencement Date;
- in the case of a natural person, that person becoming an “insolvent under administration” as that term is defined in the Corporations Act;
- in the case of a corporation, that corporation becoming
- an “externally-administered body corporate” as that term is defined in the CorporationsAct
- unable to pay its debts as and when they fall due
- insolvent or deemed to be insolvent under the Corporations Act; or comparable law applicable to Customer;
- subject to any voluntary or involuntary bankruptcy, receivership, or other comparable proceeding under applicable law;
- subject to a scheme of arrangement or official management pursuant to the Corporations Act or comparable law applicable to Customer; or
- in any other case, any event analogous to any of the foregoing;
“Intellectual Property Rights” includes all intellectual property rights and industrial property rights throughout the world including rights in respect of or in connection with:
- arights in any trade secrets or other Confidential Information;
- copyright (including future copyright and rights in the nature of or analogous to copyright);
- right of integrity, rights of attribution and other rights of an analogous nature which may now exist or which may exist in the future (moral rights);
- inventions (including patents);
- trade marks;
- service marks; and
- rights in designs;
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;
“Mycastingnet” means Mycastingnet Pty Limited ACN 143 564 514;
“Privacy Act” means the Privacy Act 1988 (Cth);
“Privacy Laws” means:
- the Privacy Act 1988;
- the National Privacy Principles contained in the schedules to the Privacy Act 1988 and any approved privacy code that applies to any Party;
- all guidelines made by the Privacy Commissioner pursuant to the Privacy Act 1988.
- analogous privacy regulations applicable to Customer, and to Mycastingnet’s use of any Data or Customer’s Personal Information.
“Personal Information” means all information about a person that is collected or otherwise obtained or held by Mycastingnet as a result of this Agreement and that is personal information as defined in the Privacy Laws or is information to which the Privacy Laws apply.
“Renewal Term” has the meaning given to that term in clause 2(2);
“Service” means any services made available to the Customer through the Website;
“Software” means those modules of the software we make available to you through the Website, as modified from time to time;
“Subscription Fees” means the yearly fee (excluding taxes and duties) payable by the Customer in accordance with the fee schedule set out on the Website. The amount payable will depend on the usage plan selected by the Customer;
“Term” means Initial Term and all Renewal Terms;
“Trial Period” means one (1) month;
“Website” means www.mycastingnet.com or any other website which is operated by Mycastingnet.
In these terms and conditions, unless the context otherwise indicates:
- references to any statute, ordinance or other law shall include all regulations and other instruments thereunder and all consolidations, amendments, re-enactments or replacements thereof;
- words importing the singular shall include the plural and vice versa, words importing a gender shall include other genders and references to a person shall be construed as references to an individual, firm, body corporate, association (whether incorporated or not), government and governmental, semi-governmental and local authority or agency;
- where any word or phrase is given a defined meaning in these terms and conditions, any other part of speech or other grammatical form in respect of such word or phrase shall have a corresponding meaning;
- headings included in these terms and conditions for convenience only and shall be disregarded in the construction of these terms and conditions.
- This Agreement commences of the Commencement Date and continues for the Term, unless terminated earlier in accordance with this Agreement
- After the Initial Term, this Agreement shall automatically renew for a further 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 Renewal Term, as the case may be.
- Upon termination or expiration of this Agreement, the Customer must immediately cease use of the Service, and promptly return to Mycastingnet all Confidential Information, software, data, materials and other property of Mycastingnet held by the Customer.
3. ACCESS TO THE WEBSITE
- Mycastingnet grants the Customer and the Customer Personnel access to and use of the Website, the Software and the Content during the Term. This right is non-exclusive, non-transferable and limited by and subject to this complete and ongoing compliance with the terms and conditions of Agreement.
- The Customer agrees to comply with all directions relating to the access and use of the Website, the Software and the Content.
- Mycastingnet will not provide the Customer with any software or hardware required to assist the Customer or Customer Personnel in gaining access to the Website.
- For the avoidance of doubt, the Customer is responsible:
- for all equipment, software, hardware and other costs associated with access to the Website by the Customer or Customer Personnel, or both, including without limitation any fees in respect of any web browser or internet service provider used by the Customer to gain access to the Website;
- for arranging all connections to the Website.
- Mycastingnet may, in the absolute discretion of Mycastingnet, retain and assess any data or information concerning the use of the Website by the Customer.
- The Customer must ensure compliance with the provisions of any relevant statutes, regulations, by-laws, and the requirements of any governmental authority
- 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 acts and omissions of the Customer.
- Notwithstanding any other provision of this Agreement, the Customer acknowledges, agrees and confirms that the use by the Customer of the Website, the Software and the Content may be subject to certain limitations based upon the usage plan selected by the Customer, including without limitation to a limitation with respect to monthly transaction volumes. Any such limitations will be published on the Website and may be varied from time to time.
- Notwithstanding any other provision of this Agreement, competitors of Mycastingnet (including without limitation directors, shareholders, employees, agents or consultants of any competitors of Mycastingnet) shall not at any time be authorised or permitted to access to or use of the Website, the Software and the Content.
- The Customer:
- acknowledges, agrees and confirms that the Customer must not post any material on the Website which is capable of:
- infringing the intellectual property rights, rights to privacy or any other rights of a person or entity;
- breaching any law;
- appearing to be offensive, threatening, harassing, obscene, pornographic, fetish, false, unreliable or misleading;
- being considered spam or unwanted advertising of products or services;
- represents and warrants that all information provided by the Customer to Mycastingnet or posted on the Website is complete and accurate;
- acknowledges, agrees and confirms that:
- if the information of the Customer changes, the Customer is responsible for providing Mycastingnet with up to date information;
- Mycastingnet shall not be liable to any person for any loss, damage or consequences resulting from inaccurate or incomplete information being submitted by the Customer;
- when the Customer makes the profile of the Customer public or the Customer includes a photograph in the talent directory of the Website, that Mycastingnet will publish the personal information and photos of the Customer on the Website, and allow other users of the Website to contact the Customer;
- the Customer will not use any features or information published on the Website for any purpose other than those directly related to auditions or casting calls.
- acknowledges, agrees and confirms that the Customer must not post any material on the Website which is capable of:
- The Customer agrees to pay the Subscription Fees to Mycastingnet for access to the Website, the Software and the Content.
- Mycastingnet will invoice the Customer for access to the Website, the Software and the Content at the commencement of the Initial Term or a Renewal Term.
- Subject to clause 14(4), the Subscription Fees will be payable by twelve (12) equal installments on or before the first day of the applicable month.
- 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 fees as set forth on the Website. One-time and pay-as-you-go fees are payable in advance upon purchase of the applicable service, while fees for metered services (such as “per-applicant” fees) are calculated and charged at the end of the applicable period.
- In the event that the Customer considers in good faith that an invoice exceeds the amount properly payable, the Customer must:
- notify Mycastingnet of the amount in dispute; and
- pay the balance of the invoice in accordance with clause 4(3).
- The Customer acknowledges and confirms that Mycastingnet may change the Subscription Fees with effect from the start of the next period for which a Subscription Fee is payable or at any other time on thirty (30) days advance written notice.
5. WITHDRAWAL OF ACCESS
- Mycastingnet reserves the right to immediately, and without notice to the Customer, terminate the right of the Customer or the Customer Personnel to access the Website and the Content if:
- the Customer fails to comply with any provision of this Agreement including without limitation in respect of the payment of the Subscription Fees to Mycastingnet when due;
- this Agreement is terminated for any reason;
- the Customer misuses the Website or the Content or fails to comply with the obligations of the Customer as to the use and access of the Website or the Content;
- the Customer or any Customer Personnel do not comply with the Acceptable Use Policy.
6. TEMPORARY UNAVAILABILITY OF WEBSITE
The Customer acknowledges and confirms that:
- the Website or any part of the Website may be temporarily unavailable;
- Mycastingnet makes no representation or guarantee that access to the Website will be secure, uninterrupted or error free;
- Mycastingnet makes no representation or assurances that the Website or the Content will satisfy the requirements of the Customer;
- Mycastingnet makes no representation or assurances that the Website or the Content will comply with any particular laws, regulations, codes or industry standards;
- Mycastingnet is not responsible for the suspension or interruption to the Website or any part of the Website, regardless of the cause of such interruption or suspension;
- Mycastingnet may change the Website or any part of the Website or Service at anytime and without notice or liability to the Customer;
- Mycastingnet may change the Content at any time and without notice or liability to the Customer;
- Mycastingnet may, in its absolute discretion and without notice to the Customer,deny any Customer Personnel access to the Website or any part of the Website at any time and for any period of time.
7. CONFIDENTIAL INFORMATION
- The Customer and Customer Personnel must treat as confidential all Confidential Information which comes into the possession of the Customer or Customer Personnel, pursuant to or as a result of or in the performance of this Agreement, whether such information relates to the business, sales, marketing or technical operations of Mycastingnet, or the Intellectual Property Rights or industrial property rights of Mycastingnet, or otherwise, and may only disclose such details to those employees of the Customer 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 this Agreement.
- The Customer must not, without the prior written permission of Mycastingnet, copy or cause to be copied or disclose Confidential Information to a third party, or otherwise use or exploit the Confidential Information.
- The foregoing obligations and commitments not to disclose Confidential Information shall not apply to:
- . Confidential Information which is at the time of disclosure or thereafter becomes part of the public domain through no act or omission by a Party;
- Confidential Information which was otherwise lawfully in the possession of a Party, prior to disclosure, as shown by written records;
- Confidential Information which is after the date of this Agreement lawfully disclosed to a party by a third party which did not acquire the confidential information under an obligation of confidentiality from or through the other party; or
- disclosure is required by law or a regulatory body (including a relevant stock exchange).
- The obligations of the Customer under this clause shall survive the termination of this Agreement.
8. OWNERSHIP OF MATERIALS
- The Customers acknowledge and confirm that, unless otherwise agreed in writing, Mycastingnet shall retain all Intellectual Property Rights associated with the Website or the Content, or both.
- The Customer acknowledges confirms and agrees that:
- all Intellectual Property Rights in the Website or the Content are solely owned by Mycastingnet, and except as expressly set forth herein, no rights or licenses thereto are granted, whether expressly, by implication, estoppel, or otherwise;
- the Customer will not:
- disclose the Content to anyone else;
- remove any information which gives notice of the rights of any person (including Mycastingnet) in the Website or Content, or both;
- allow any act to be done in respect of the Website or the Content which is not expressly permitted by this Agreement.
- Each of the Customer and Mycastingnet acknowledge and confirm that data generated in connection with Customer’s and other users’ use of the Service shall be owned by Mycastingnet and nothing in this Agreement or otherwise confers any rights on the Customer in relation to such data (including without limitation, Intellectual Property Rights or other proprietary rights).
- Each of the Customer and Mycastingnet acknowledge and confirm that, as between Mycastingnet and Customer, ownership of all Data uploaded to the Service by or on behalf of Customer remains with Customer (including without limitation, Intellectual Property Rights or other proprietary rights). By submitting Data to Mycastingnet, you hereby grant Mycastingnet and its affiliates a worldwide, non-exclusive, fully paid-up, royalty-free, perpetual, irrevocable, sublicensable, and transferable license to use, reproduce, distribute, transmit, publicly display, modify, and publicly perform your Data and adaptations thereof, in connection with the development, operation, maintenance, enhancement, and promotion of the Service and the operation of the Mycastingnet business, and to collect, combine, aggregate, and analyze, data related to your Data and derivatives thereof. You also grant to Mycastingnet and its affiliates the right to use any name and/or voice and/or likeness that you submit as a part of or in connection with your Data, without compensation or need for your prior approval. You also agree to irrevocably waive (and cause to be waived) any claims and assertions of so-called “moral rights” or attribution with respect to your Data. Mycastingnet has no obligation to, and does not represent or warrant that it will, publish Customer’s Data, and reserves the right, in its sole discretion, to refuse to allow any particular Data Service, or to remove any Data at any time with or without notice.
- Customer is solely responsible for Customer’s Data and the consequences of posting or publishing such Data, and Customer affirms, represents, and warrants that:
- the Customer owns or has all necessary rights, licenses, consents, and permissions in the Data sufficient to grant the licenses herein;
- the Data, including use of the Data by Mycastingnet in accordance with this Agreement, does not and will not infringe, invade, misappropriate or otherwise violate any Intellectual Property Rights of any third party or violate any applicable law or regulation.
- The Customer warrants that:
- the Customer owns all intellectual property rights in the Data;
- the dealings of Mycastingnet with the Data will not infringe the intellectual property rights if a third party.
- The Customer acknowledges and confirms that:
- the Customer must maintain back-up copies of all Data;
- Mycastingnet does not make any guarantee or warranty of any kind in relation to the Data;
- Mycastingnet will not be responsible for the reinstatement or recovery of data as a consequence of inadequate back-up being maintained by the Customer, or for delivering any Data back to Customer following any expiration or termination of this Agreement; and
- the access of the Customer to the Data is contingent upon the prompt payment of applicable Subscription Fees.
Mycastingnet may subcontract the whole, or any part, of the obligations of Mycastingnet under this Agreement without the prior consent of the Customer.
The Customer must not assign any of its rights under this Agreement without the prior written approval of Mycastingnet, whether by operation of law, merger, change of control, or otherwise. The approval of Mycastingnet will not be unreasonably withheld, conditioned, or delayed. Mycastingnet ‘s approval or Customer’s assignment of the Agreement will not relieve the Customer of its obligations under this Agreement.
12. NO IMPLIED TERMS
- SUBJECT TO CLAUSE 12(b), ANY CONDITION OR WARRANTY WHICH WOULD OTHERWISE BE IMPLIED IN THIS AGREEMENT IS HEREBY EXCLUDED.
- Where legislation implies in this Agreement 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 this Agreement. 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:
- the supplying of the services again; or
- the payment of the cost of having the services supplied again.
13. DISCLAIMER, INDEMNITY AND EXCLUSION OF LIABILITY
- The Customer acknowledges that:
- in accessing the Website and the Content that the Customer relied on its own skill and judgment in the selection of the Website and the Content and in determining the use and result, which Customer intends to obtain from the Website or the Content, or both;
- no promise, representation or warranty has been made by Mycastingnet in respect of the profitability, benefits or any other consequence in the use of the Website or the Consent, or both, or in respect of the suitability of the Website or the Consent, or both to the operations and business of the Customer.
- THE WEBSITE, SOFTWARE, AND CONTENT ARE 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 WEBSITE, SOFTWARE OR CONTENT, OR BOTH WILL BE FREE FROM BUGS OR THAT THE USE OF THE WEBSITE, SOFTWARE, OR CONTENT, OR BOTH, 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, SOFTWARE, OR CONTENT, OR BOTH, IN TERMS OF ACCURACY, RELIABILITY, OR OTHERWISE.
- 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.
- MYCASTINGNET’S AND ITS AFFILIATES’ AND SUPPLIERS’ MAXIMUM AGGREGATE TOTAL LIABILITY TO CUSTOMER ARISING FROM OR RELATING TO THIS AGREEMENT, 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 EVENTS GIVING RISE TO LIABILITY.
- CERTAIN JURISDICTIONS DO NOT ALLOW LIMITATIONS ON IMPLIED WARRANTIES OR CONDITIONS, OR THE EXCLUSION OR LIMITATION OF LIABILITY FOR CONSEQUENTIAL OR INCIDENTAL DAMAGES, SO THE ABOVE LIMITATIONS MAY NOT APPLY TO YOU. IN SUCH AN EVENT THE ABOVE LIMITATIONS WILL BE ENFORCED TO THE MAXIMUM EXTENT PERMITTED UNDER APPLICABLE LAW.
- The Customer shall at all times indemnify and hold harmless Mycastingnet and the officers, directors, employees and agents of Mycastingnet from and against any 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:
- a breach by the Customer of the representations, warranties, or obligations of the Customer under this Agreement;
- any willful, unlawful or negligent act or omission of the Customer; or
- Customer’s Data, including without limitation any claims that Customer’s Data violates or infringes any rights (including Intellectual Property Rights, rights of privacy and publicity, or any other proprietary right) of any third party.
- The rights and obligations of each of the parties under this clause will survive expiration or termination of this Agreement.
- Without limiting the rights of Mycastingnet under clause 5, Mycastingnet may terminate the obligations of Mycastingnet under this Agreement by notice in writing to the Customer if the Customer:
- commits a breach of this Agreement where:
- the breach can be remedied and the Customer fails to remedy such breach within ten (10) Business Days after receipt of a notice from Mycastingnet specifying the breach and requiring the Customer to remedy such breach, provided that Mycastingnet may, in its discretion, suspend any applicable Services during such cure period; or
- the breach cannot be remedied; or
- becomes Insolvent.
- commits a breach of this Agreement where:
- If notice is given to the Customer pursuant to clause 14(a), Mycastingnet may, in addition to terminating this Agreement:
- retain any monies paid in relation to this Agreement;
- be regarded as discharged from any further obligations under this Agreement;
- pursue any additional or alternative remedies provided by law.
- The Customer may terminate the obligation of the Customer under this Agreement by notice in writing to Mycastingnet if Mycastingnet becomes Insolvent.
- The Customer may terminate the Agreement for convenience by not less than thirty (30) days prior written notice to Mycastingnet, provided always that any termination of this Agreement by the Customer pursuant to this clause 14(d) shall not relieve the Customer of any payment obligations under clause 4 of this Agreement and shall not limit Mycastingnet from pursuing any additional or alternative remedies provided at law. Any outstanding Subscription Fees shall become immediately due and owing to Mycastingnet upon termination by the Customer pursuant to this clause 14(d).
- Mycastingnet may, at any time upon written notice, terminate the obligations of Mycastingnet under this Agreement in whole or in part for convenience, subject to a refund of Subscription Fees paid by Customer in advance in an amount prorated against the portion of the prepaid subscription term remaining as of the effective date of termination.
- Each of the Customer and Mycastingnet confirm and agree that the Customer may evaluate the Website during the Trial Period with no obligation to continue to use the Website, subject at all times to any trial usage conditions which may be defined by Mycastingnet from time to time. In the event that the Customer continues to use the Website after the Trial Period, then the Subscription Fees will commence on the day immediately following the expiry of the Trial Period
15. FORCE MAJEURE
- Neither Party is liable to the other Party in respect of the results of any delay or failure to perform its obligations pursuant to this Agreement if such delay or failure is caused by an event of Force Majeure.
- The performance of the obligations of a Party will be suspended for the period of an event of Force Majeure.
- If a delay or failure of the Customer to perform the obligations of the Customer under this Agreement due to an event of Force Majeure exceeds forty five (45) Business Days, Mycastingnet may immediately terminate this Agreement on providing notice in writing to the Customer.
- Despite any other provision in this Agreement, if a party (“Supplier”) makes a supply under or in connection with this Agreement on which GST is imposed (not being a supply the consideration for which is stated to be GST inclusive):
- the consideration otherwise payable or to be provided for that supply is increased by, and the recipient of the supply (“Recipient”) must also pay to the Supplier, an amount equal to the GST payable by the Supplier on that supply; and
- the Recipient must pay that amount, without set off or deduction, at the same time as it must pay or provide the consideration for that supply.
- The Recipient need not make a payment due under this clause 16 in respect of a taxable supply until the Supplier has given the Recipient a tax invoice for the supply to which the payment relates.
17. ENTIRE AGREEMENT
This Agreement constitutes the entire agreement between the parties and supersedes all prior representations, agreements, statements an understanding, whether verbal or in writing.
18. DISPUTE RESOLUTION
- Generally. In the interest of resolving disputes between you and Mycastingnet in the most expedient and cost effective manner, Customer and Mycastingnet agree that any and all disputes arising in connection with this Agreement that cannot be resolved informally shall be resolved by binding arbitration. Arbitration is more informal than a lawsuit in court. Arbitration uses a neutral arbitrator instead of a judge or jury, may allow for more limited discovery than in court, and can be subject to very limited review by courts. Arbitrators can award the same damages and relief that a court can award. Our agreement to arbitrate disputes includes, but is not limited to all claims arising out of or relating to any aspect of this Agreement, whether based in contract, tort, statute, fraud, misrepresentation or any other legal theory, and regardless of whether the claims arise during or after the termination of this Agreement. You understand and agree that, by entering into this Agreement, you and Mycastingnet are each waiving the right to a trial by jury or to participate in a class action.
- Exceptions. Notwithstanding subsection (a), we both agree that nothing herein shall be deemed to waive, preclude, or otherwise limit either of our right to (i) bring an individual action in small claims court, (ii) pursue enforcement actions through applicable federal, state, or local agencies where such actions are available, (iii) seek injunctive relief in a court of law, or (iv) to file suit in a court of law to address intellectual property infringement claims.
- Arbitrator. Any arbitration between Customer and Mycastingnet will be governed by the Commercial Dispute Resolution Procedures and the Supplementary Procedures for Consumer Related Disputes (collectively, “Rules”) of the American Arbitration Association (“AAA”), as modified by this Agreement, and will be administered by the AAA. The Rules and filing forms are available online at www.adr.org, by calling the AAA at 1-800-778-7879, or by contacting Mycastingnet.
- Notice; Process. Prior to initiating formal dispute resolution proceedings under this provision, each party agrees to contact the other party and use to resolve the dispute without commencing a formal proceeding. A party who, failing informal resolution of a dispute, intends to seek arbitration must first send a written notice of the dispute to the other, by certified mail or Federal Express (signature required), or in the event that Mycastingnet does not have a physical address on file for Customer, by electronic mail (“Notice”). Mycastingnet’s address for Notice is: Mycastingnet, Inc., Level 2, 341 Barrenjoey Road, Newport Beach, New South Wales, Australia 2106. The Notice must (a) describe the nature and basis of the claim or dispute; and (b) set forth the specific relief sought (“Demand”). We each agree to use good faith efforts to resolve the claim directly, but If we do not reach an agreement to do so within 30 days after the Notice is received, Customer or Mycastingnet may commence an arbitration proceeding. During the arbitration, the amount of any settlement offer made by Customer or Mycastingnet shall not be disclosed to the arbitrator until after the arbitrator makes a final decision and award, if any; provided that if our dispute is finally resolved through arbitration in Customer’s favor, Mycastingnet shall pay you the greater of (i) the amount awarded by the arbitrator, if any, and (ii) the greatest amount offered by Mycastingnet in settlement of the dispute prior to the arbitrator’s award.
- Fees. In the event that Customer commence arbitration in accordance with this Agreement, Mycastingnet will reimburse Customer for payment of the filing fee, unless Customer’s claim is for greater than $10,000, in which case the payment of any fees shall be decided by the Rules. Any arbitration hearings will take place at a location to be agreed upon in New South Wales, provided that if the claim is for $10,000 or less, Customer may choose whether the arbitration will be conducted solely on the basis of documents submitted to the arbitrator, through a non-appearance based telephonic hearing, or by an in-person hearing as established by the Rules. If the arbitrator finds that either the substance of Customer’s claim or the relief sought in the Demand is frivolous or brought for an improper purpose (as measured by the standards set forth in Federal Rule of Civil Procedure 11(b)), then the payment of all fees will be governed by the Rules. In such case, Customer agrees to reimburse Mycastingnet for all monies previously disbursed by it that are otherwise your obligation to pay under the Rules. Regardless of the manner in which the arbitration is conducted, the arbitrator shall issue a reasoned written decision sufficient to explain the essential findings and conclusions on which the decision and award, if any, are based. The arbitrator may make rulings and resolve disputes as to the payment and reimbursement of fees or expenses at any time during the proceeding and upon request from either party made within 14 days of the arbitrator’s ruling on the merits.
- No class actions. CUSTOMER AND MYCASTINGNET AGREE THAT EACH MAY BRING CLAIMS AGAINST THE OTHER ONLY IN ITS INDIVIDUAL CAPACITY, AND NOT AS A PLAINTIFF OR CLASS MEMBER IN ANY PURPORTED CLASS OR REPRESENTATIVE PROCEEDING. Further, unless both Customer and Mycastingnet agree otherwise, the arbitrator may not consolidate more than one person’s claims, and may not otherwise preside over any form of a representative or class proceeding.
- Modifications. In the event that Mycastingnet makes any future change to this arbitration provision (other than a change to the Mycastingnet’s address for Notice), Customer may reject any such change by sending us written notice within 30 days of the change to Mycastingnet’s address for Notice, in which case your account with Mycastingnet shall be immediately terminated (and Mycastingnet will issue Customer a refund for any remaining portion of fees paid in advance for subscription term not yet passed) and this arbitration provision, as in effect immediately prior to the amendments Customer rejects shall survive.
- Enforceability. If only Subsection (f) of this Section 18 or the entirety of this Section 18 is found to be unenforceable, then the entirety of this Section 18 shall be null and void and, in such case, the parties agree that the exclusive jurisdiction and venue described in Section 20.b shall govern any action arising out of or related to this Agreement.
19.DIGITAL MILLENIUM COPYRIGHT ACT
Mycastingnet respects the intellectual property of others, and we ask our users to do the same. Mycastingnet reserves the right to disable and/or terminate the accounts of users who we determine to be repeat infringers. If you are a copyright holder and believe that any content available through the Service infringes your rights, or your intellectual property rights have been otherwise violated, you may submit a notification pursuant to the Digital Millennium Copyright Act (“DMCA”) by providing our Designated Copyright Agent with the following information in writing (see 17 U.S.C § 512(c)(3) for further detail):
- A physical or electronic signature of a person authorized to act on behalf of the owner of an exclusive right that is allegedly infringed.
- Identification of the copyrighted work claimed to have been infringed, or, if multiple copyrighted works at a single online site are covered by a single notification, a representative list of such works at that site.
- Identification of the material that is claimed to be infringing or to be the subject of infringing activity and that is to be removed or access to which is to be disabled, and information reasonably sufficient to permit the service provider to locate the material.
- Information reasonably sufficient to permit the service provider to contact the complaining party, such as an address, telephone number, and, if available, an electronic mail address at which the complaining party may be contacted.
- A statement that the complaining party has a good faith belief that use of the material in the manner complained of is not authorized by the copyright owner, its agent, or the law.
- A statement that the information in the notification is accurate, and under penalty of perjury, that the complaining party is authorized to act on behalf of the owner of an exclusive right that is allegedly infringed.
Mycastingnet’s Agent for Notice of claims of copyright or other intellectual property infringement can be reached as follows:
By email: copyright@Mycastingnet.com
- Agent for Notice of Claimed Infringement
- Level 2, 341 Barrenjoey Road,
- Newport Beach, New South Wales
- Australia 2106
- This deed is governed by the law in force in New South Wales without regard to conflict of law provisions.
- 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, or, if Customer is domiciled in North America, the courts located in Santa Clara County, California 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.
- 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 regarding to Mycastingnet, at Level 2, 341 Barrenjoey Road, Newport Beach, New South Wales, Australia 2106, and with respect to Customer, at the address you provided in connection with your registration.
- A notice, approval, consent or other communication in connection with this deed:
- must be in writing unless expressly specified otherwise; and
- must be left at or sent by prepaid ordinary post to the address of the addressee which is specified on page 1 of this deed in the case of the parties to this deed.
- Unless a later time is specified in it a notice, approval, consent or other communication takes effect from the time it is received.
- A letter is taken to be received on the third day after posting.
- Any present or future legislation which operates to vary an obligation or right, power or remedy of a person in connection with this deed is excluded except to the extent that its exclusion is prohibited or rendered ineffective by law.
- In the event that any provision of this Agreement is held to be invalid or unenforceable, then: (i) such provision shall be deemed reformed to the extent strictly necessary to render such provision valid and enforceable, or if not capable of such reformation shall be deemed severed from this Agreement; and (ii) the validity and enforceability of all of the other provisions hereof, shall in no way be affected or impaired thereby.
- Customer may not assign this Agreement, 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 this Agreement without restriction. Subject to the foregoing, this Agreement shall be binding on the parties and their respective successors and permitted assigns.
- The failure to exercise, or delay in exercising, a right, power or remedy provided in this Agreement or by law shall not constitute a waiver of that right, power or remedy. Mycastingnet’s waiver of any obligation or breach of this Agreement shall not operate as a waiver of any other obligation or subsequent breach of this Agreement.