TERMS OF USE

Last Updated: 20 Sept 2020

Please read the following terms of use agreement (“Agreement”) carefully before using this website. By accessing this website and/or the services offered by Dark Escapes Publishing via the website, you agree to be bound by all the terms and conditions of this Agreement, as amended from time to time. If you do not agree to these terms and conditions, please do not use this site.

Welcome to the Dark Escapes Publishing website, located at https://darkescapes.com (the “Site”). The following Agreement contains the terms and conditions that govern your use of the Site and the services offered by Dark Escapes Publishing through the Site (collectively, the “Services”).

1. Modification of this Agreement

Dark Escapes Publishing Pty Ltd, along with its licensees, affiliates, and assignees (collectively, “Dark Escapes Publishing”) reserves the right to revise this Agreement in its sole discretion at any time and without prior notice to you other than by posting the revised Agreement on the Site. Any revisions to this Agreement are effective upon posting. It is your responsibility to visit this page periodically to ensure your continued acceptance of this Agreement. Your continued use of the Site and/or Services after a revised version of this Agreement has been posted to the Site constitutes your binding acceptance of such revision and the revised Agreement.

2. Use of the Site and Services

  1. Eligibility: Dark Escapes Publishing will only knowingly provide the Site and Services to parties that can lawfully enter into and form contracts under applicable law. If you are under the age of 18, but at least 13 years of age, you may use the Site and/or Services only under the supervision of a parent or legal guardian who agrees to be bound by this Agreement. The Site and Services are not intended for children under the age of 13.
  1. Compliance with Agreement and Applicable Law. You must comply with all of the terms and conditions of this Agreement, the applicable agreements and policies referred to below, and all applicable laws, regulations, and rules when you use the Site and Services.
  1. License to Use Site and Services. Dark Escapes Publishing grants you a limited, revocable license to access and use the Site and Services for its intended purposes, subject to your compliance with this Agreement. This license does not include the right to collect or use information contained on the Site for purposes prohibited by Dark Escapes Publishing, to create derivative works based on the Site and its contents or any third party content available via the Site, or to download or copy the Site (other than page caching). If you use the Site in a manner that exceeds the scope of this license or breaches this Agreement, Dark Escapes Publishing may revoke the license granted to you. Dark Escapes Publishing and its licensors solely and exclusively own all intellectual property and other right, title, and interest in and to the Site and Services, except as expressly provided for in this Agreement. You will not acquire any right, title, or interest there except as otherwise expressly set forth in this Agreement. Dark Escapes Publishing may modify the Site and/or Services at any time with or without prior notice to you and will incur no liability for doing so.
  1. Third Party Services: Dark Escapes Publishing may use third parties to provide certain services accessible through the Site. Dark Escapes Publishing does not control those third parties or their services, and you agree that Dark Escapes Publishing will not be liable to you in any way for your use of such services. These third parties may have their own terms of use and other policies. You must comply with such terms and policies as well as this Agreement when you use these services. If any such terms or policies conflict with this Agreement or any other agreement or policy of Dark Escapes Publishing, you must comply with this Agreement or the Dark Escapes Publishing agreement or policy, as applicable.
  1. Prohibited Uses: Except as may be expressly permitted by Dark Escapes Publishing, you may not: (i) interfere with the Services and/or Site by using viruses or any other programs or technology designed to disrupt or damage any software or hardware; (ii) modify, create derivative works from, reverse engineer, decompile, or disassemble any technology used to provide the Services and/or Site; (iii) use a robot, spider, or other device or process to monitor the activity on or copy pages from the Site, except in the operation or use of an internet “search engine,” hit counters, or similar technology; (iv) collect email addresses or other information from third parties by using the Services and/or Site; (v) impersonate another person or entity; (vi) use any meta tags, search terms, key terms, or the like that contain Dark Escapes Publishing’s name or trademarks; (vii) engage in any activity that interferes with another user’s ability to use or enjoy the Services and/or Site; or (viii) assist or encourage any third party in engaging in any activity prohibited by this Agreement.
  1. Privacy Policy: By entering into this Agreement, you agree to Dark Escapes Publishing’s collection, use, and disclosure of your personal information in accordance with the Dark Escapes Publishing Privacy Policy.

3. Proprietary Rights

The Site and the content, marks, logos, and other materials on the Site (“Site Content”) are protected by copyright, trademark, and other laws of Australia and foreign countries. You acknowledge and agree that the Site and Site Content, including all associated intellectual property rights, are the exclusive property of Dark Escapes Publishing and its licensors. You will not remove, alter, or obscure any copyright, trademark, service mark, or other proprietary rights notices incorporated in or accompanying the Site or Site Content.

All trademarks, service marks, logos, trade names, and any proprietary designations of Dark Escapes Publishing used herein are trademarks or registered trademarks of Dark Escapes Publishing. Any other trademarks, service marks, logos, trade names, and other proprietary designations are the trademarks or registered trademarks of their respective parties.

4. Representations and Warranties

You warrant and represent that: (i) you have the full power and authority to enter into and perform under this Agreement, which is a valid, legal, and binding agreement between the parties; (ii) your use of the Site and/or Services will not infringe the copyright, trademark, patent, trade secret, right of privacy, right of publicity, contractual, or other legal right of any third party and will comply with all applicable laws, rules, and regulations; (iii) there are no claims, demands, or any form of litigation pending or, to the best of your knowledge, threatened with respect to any of your content or materials furnished to Dark Escapes Publishing by you in connection with the Site and/or the Services; (iv) Dark Escapes Publishing will not be required to make any payments to any third party in connection with your use of the Services and/or Site; and (v) the content and materials furnished by you to Dark Escapes Publishing via the Site and/or in connection with the Services do not and will not contain viruses or any other programs or technology designed to disrupt or damage any software or hardware.

5. Indemnification

You agree to indemnify and hold Dark Escapes Publishing and its employees, representatives, agents, affiliates, directors, officers, managers, and shareholders (the “Parties”) harmless from any damage, loss, or expense (including, without limitation, attorneys’ fees and costs) incurred in connection with any third party claim, demand, or action brought against any of the Parties in connection with your breach or alleged breach of this Agreement. If you have to indemnify Dark Escapes Publishing under this section, Dark Escapes Publishing will have the right to control the defense, settlement, and resolution of any claim at your sole expense. You may not settle or otherwise resolve any claim with Dark Escapes Publishing’s express written permission.

6. Disclaimer and Limitations

  1. Disclaimer of Warranties. DARK ESCAPES PUBLISHING PROVIDES THE SITE AND SERVICES ON AN “AS IS” AND “AS AVAILABLE” BASIS. DARK ESCAPES PUBLISHING DOES NOT REPRESENT OR WARRANT THAT THE SITE, SERVICES, OR ITS USE: (I) WILL BE UNINTERRUPTED, (II) WILL BE FREE OF INACCURACIES OR ERRORS, (III) WILL MEET YOUR REQUIREMENTS, OR (IV) WILL OPERATE IN THE CONFIGURATION OR WITH THE HARDWARE OR SOFTWARE THAT YOU USE. DARK ESCAPES PUBLISHING MAKES NO WARRANTIES OTHER THAN THOSE MADE EXPRESSLY IN THIS AGREEMENT AND HEREBY DISCLAIMS ANY AND ALL IMPLIED WARRANTIES, INCLUDING, WITHOUT LIMITATION, WARRANTIES OF FITNESS FOR A PARTICULAR PURPOSE, MERCHANTABILITY, AND NON-INFRINGEMENT.
  1. Exclusion of Damages. DARK ESCAPES PUBLISHING WILL NOT BE LIABLE TO YOU OR ANY THIRD PARTY FOR ANY CONSEQUENTIAL, INCIDENTAL, INDIRECT, PUNITIVE, OR SPECIAL DAMAGES (INCLUDING DAMAGES RELATING TO LOST PROFITS, LOST DATA OR LOSS OF GOODWILL) ARISING OUT OF, RELATING TO, OR CONNECTED WITH THE USE OF THE DARK ESCAPES PUBLISHING SERVICE, BASED ON ANY CAUSE OF ACTION, EVEN IF ADVISED OF THE POSSIBILITY OF SUCH DAMAGES.
  1. Limitation of Liability. IN NO EVENT WILL THE LIABILITY OF DARK ESCAPES PUBLISHING EXCEED THE GREATER OF (I) THE AMOUNT PAID OR PAYABLE BY DARK ESCAPES PUBLISHING TO YOU DURING THE SIX MONTHS IMMEDIATELY PRECEDING THE EVENT THAT GIVES RISE TO SUCH LIABILITY OR (II) $100.

7. Termination

Dark Escapes Publishing may suspend or terminate your use of the Site and/or Services if it believes, in its sole and absolute discretion, that you have breached this Agreement. Sections 4, 5, 6, 8, and 9 of this Agreement shall survive termination.

8. Notices

All notices required or permitted to be given under this Agreement will be in writing and delivered to the other party by any of the following methods: (i) Australian Post, (ii) overnight courier, or (iii) electronic mail. If you give notice to Dark Escapes Publishing, you must use the following addresses: Dark Escapes Publishing Pty Ltd. PO Box 8684 Gold Coast MC, QLD 9726 Australia or support@darkescapespublishing.com. If Dark Escapes Publishing provides notice to you, Dark Escapes Publishing will use the contact information provided by you to Dark Escapes Publishing. All notices will be deemed received as follows: (i) if by delivery by Australian Post, seven (7) business days after dispatch, (ii) if by overnight courier, on the date receipt is confirmed by such courier service, or (iii) if by electronic mail, 24 hours after the message was sent, if no “system error” or other notice of non-delivery is generated. If applicable law requires that a given communication be “in writing,” you agree that email communication will satisfy this requirement.

9. Dispute Resolution

You and Dark Escapes Publishing agree that any dispute, claim, or controversy arising out of or relating to this Agreement or the breach, termination, enforcement, interpretation, or validity thereof, or to the use of the Site and/or Services (collectively, “Disputes”) will be settled by binding arbitration administered by the The Australian Centre for International Commercial Arbitration (ACICA) in accordance with its Commercial Arbitration Rules and the Supplementary Procedures for Consumer Related Disputes (the “Rules”), as modified by this Agreement, except that Dark Escapes Publishing retains the right to seek injunctive or other equitable relief in a court of competent jurisdiction to prevent the actual or threatened infringement, misappropriation, or violation of its copyrights, trademarks, trade secrets, patents, or other intellectual property rights. You acknowledge and agree that you and Dark Escapes Publishing are each waiving the right to a trial by jury or to participate as a plaintiff or class member in any purported class action or representative proceeding. Further, unless both you and Dark Escapes Publishing otherwise agree in writing, the arbitrator may not consolidate more than one person’s claims and may not otherwise preside over any form of any class or representative proceeding. If this specific paragraph is held unenforceable, then the entirety of this “Dispute Resolution” section will be deemed void.

The arbitration shall be conducted in the English language. A single independent and impartial arbitrator shall be appointed pursuant to the Rules, as modified herein. You and Dark Escapes Publishing agree to comply with the following rules, which are intended to streamline the dispute resolution process and reduce costs and burdens on the parties: (i) the arbitration shall be conducted by telephone, online, and/or be solely based on written submissions, the specific manner to be chosen by the party initiating the arbitration; (ii) the arbitration shall not require any personal appearances by the parties or witnesses unless otherwise mutually agreed in writing by the parties; and (iii) any judgment on the award rendered by the arbitrator may be entered in any court of competent jurisdiction.

10. Copyright Infringement Claims

Dark Escapes Publishing respects the intellectual property of others and takes the protection of copyrights and all other intellectual property very seriously and asks that its users do the same. Infringing activity will not be tolerated on or through the Site or Services. Dark Escapes Publishing will promptly remove or disable materials from the Site that Dark Escapes Publishing believes in good faith, following its receipt of notice in accordance with the requirements below, that the materials infringe a third party’s rights. Whether or not Dark Escapes Publishing disables access to or removes materials, Dark Escapes Publishing may attempt to forward the written notification, including the complainant’s contact information, to the user who posted the content and/or take other reasonable steps to notify the user that Dark Escapes Publishing has received notice of an alleged violation of intellectual property rights or other violation. Dark Escapes Publishing may also, in its discretion, terminate the accounts of repeat copyright infringers or of those who post inaccurate or unlawful content.

Any notice or counter-notice you submit must be truthful and submitted under penalty of perjury. A false notice or counter-notice may give rise to personal liability. You may want to seek the advice of legal counsel before submitting a notice or a counter-notice.

  1. Procedure for Reporting Claimed Infringement

If you believe in good faith that your copyright or other intellectual property rights have been infringed, please provide us with a written notice containing:

i. Your name, telephone number, address, and e-mail address;

ii. A description of the copyrighted work that you claim has been infringed;

iii. A description of the material on the Site that you believe is infringing the copyrighted work and where such material may be found on the Site;

iv. A statement by you that you have a good faith belief that the disputed use is not authorized by the copyright owner, its agent, or the law;

v. A statement by you, made under penalty of perjury, that the information in your notice is accurate and that you are the copyright owner or authorized to act on the copyright owner’s behalf; and

vi. Your electronic or physical signature.

Please submit your notice to Dark Escapes Publishing as follows:

Email: support@darkescapespublishing.com

By Australia Post:

Dark Escapes Publishing Pty Ltd.
Attn: Copyright Infringement Claims
PO Box 8684 Gold Coast MC,
QLD 9726 Australia

You should consult with your own lawyer to confirm your obligations to provide a valid notice of claimed infringement.

  1. Counter-Notice to Restore Removed Content

If you believe that a notice of copyright or other infringement has been improperly submitted against you, you may submit a Counter-Notice, in relation to Telecommunications Act 1997 (Cth) and the Copyright Act 1968 (Cth) by providing Dark Escapes Publishing with a written notice which contains:

i. Your name, telephone number, address, and e-mail address;

ii. Identification of the material removed from the Site or to which access has been disabled;

iii. A statement under penalty of perjury that you have a good faith belief that removal or disablement of the material was a mistake or that the material was misidentified;

iv. A statement that you consent to the jurisdiction of the courts of QLD, Australia (i) in the judicial district where your address is located if the address is in Australia, or (ii) if your address is located outside Australia, any judicial district in which Dark Escapes Publishing may be found and that you will accept service of process from the Complainant submitting the notice or his/her authorized agent; and

v. Your physical or electronic signature.

Please submit your notice to Dark Escapes Publishing as follows:

Email: support@darkescapespublishing.com

By Australia Post:

Dark Escapes Publishing Pty Ltd.
Attn: Copyright Infringement Claims
PO Box 8684 Gold Coast MC,
QLD 9726 Australia

A party submitting a Counter Notification should consult with a lawyer to confirm the party’s obligations to provide a valid counter notification under the Copyright Act 1968 (Cth).

  1. False Notifications of Claimed Infringement or Counter Notifications

Dark Escapes Publishing reserves the right to seek damages from any party that submits a notification of claimed infringement or counter notification in violation of the law.

11. Miscellaneous

This Agreement will be binding upon each party hereto and its successors and permitted assigns and governed by and construed in accordance with the federal laws of Australia without reference to conflict of law principles. Only if the Disputes Resolution clause is deemed to be null and void, then all disputes arising between you and Dark Escapes Publishing under this Agreement shall be subject to the exclusive jurisdiction of the state and courts located in Queensland, Australia, and you and Dark Escapes Publishing hereby submit to the personal jurisdiction and venue of these courts. This Agreement will not be assignable or transferable by you without the prior written consent of Dark Escapes Publishing. Dark Escapes Publishing may freely assign or transfer any rights granted by you to it under this Agreement. This Agreement (including all of the policies and other agreements described in this Agreement, which are hereby incorporated herein by this reference) contain the entire understanding of the parties regarding its subject matter and supersedes all prior and contemporaneous agreements and understandings between the parties regarding its subject matter. No failure or delay by a party in exercising any right, power, or privilege under this Agreement will operate as a waiver thereof. No agency, partnership, joint venture, or employee-employer relationship is intended or created by this Agreement. The invalidity or unenforceability of any provision of this Agreement will not affect the validity or enforceability of any other provision of this Agreement, all of which will remain in full force and effect. The headings used in this Agreement are for convenience only and shall not be deemed to limit or affect any of the provisions hereof.

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