Last updated: March 04, 2022
Darwin Tech, LLC ("Darwin Tech") offers various tools for developers and others who may be integrating Darwin Tech features into their sites, products or services (each, a "Developer" or "you"), including without limitation, APIs, code, software, scripts, buttons, widgets, script libraries, app keys, access tokens, pages, platform and documentation (collectively, "Developer Tools").
Any capitalized terms not defined in these Developer Terms shall have the meanings set forth in our Terms of Service. If there is a conflict between these Developer Terms and any terms in any other agreement between you and Darwin Tech, these Developer Terms will control for that conflicting terms.
If you have any questions about these Developer Terms, please contact us at firstname.lastname@example.org.
Subject to your ongoing compliance with these Developer Terms and any other agreements entered into by the parties, we grant you a limited, non-exclusive, non-transferable, non-sublicensable and revocable license to use the Developer Tools solely to develop, test, and support applications and integrations ("Your App") for your internal use.
The Developer Tools are owned by Darwin Tech and only licensed – not sold – to you. You acknowledge that as between you and Darwin Tech, Darwin Tech retains all worldwide right, title and interest in the Developer Tools, including without limitation all intellectual property rights therein, and, to the maximum extent permitted by applicable law, these Developer Terms do not grant you any rights in any of our services, the Developer Tools, or the content accessed through the Darwin Tech website or such Developer Tools. If you acquire any rights in the Developer Tools, by operation of law or otherwise, you, at no expense to Darwin Tech and to the maximum extent permitted by applicable law, hereby assign all such rights to Darwin Tech. If any rights are not assignable by a matter of law, you hereby grant Darwin Tech an unlimited, perpetual, royalty-free, transferable, sublicensable and irrevocable license to the Developer Tools.
The Developer Tools may be provided in conjunction with other components, including certain third party software ("Third Party Software"), that are provided by their authors under separate license terms (the "Third Party Terms") or that are separately licensed under an open source license ("Open Source Code"). Your use of the Third Party Software and Open Source Code in conjunction with the Developer Tools is subject to the Third-Party Terms or terms of the Open Source Code license, as applicable, and not these Developer Terms.
As between you and Darwin Tech, all Developer Tools and any component thereof, including all intellectual property rights therein and thereto, are the sole and exclusive property of Darwin Tech, its affiliates and/or licensors. Darwin Tech reserves all rights not expressly granted in these Developer Terms. You do not acquire any right, title or interest to the Developer Tools, whether by implication, estoppel, or otherwise, except for the limited rights set forth in these Developer Terms. From time to time, Darwin Tech may place limits on access to the Developer Tools. Further, Darwin Tech may monitor your usage of the Developer Tools and if Darwin Tech believes that your usage is in breach of these Developer Terms or may negatively affect the Developer Tools (or otherwise impose liability on Darwin Tech) Darwin Tech may, in its sole discretion, immediately suspend your access to and/or use of the Developer Tools.
Our Developer Tools are constantly evolving as we refine, add and potentially remove features with the needs of users of our services (each, a "User") and Developers in mind. You acknowledge that any such modifications may have an adverse effect on Your App and you agree that Darwin Tech shall not be liable to you in any way for such adverse effect.
Except as otherwise provided herein, you will retain all intellectual property rights with respect to Your App. You may use Your App for your own use only and may not commercialize Your App or otherwise publicly distribute Your App without securing an additional license from Darwin Tech.
Any use of the Developer Tools must comply with the Darwin Tech policies and requirements set forth in the Terms of Service or other documentation provided by Darwin Tech, which may be modified from time to time in Darwin Tech’s sole discretion.
By accessing or using the Developer Tools, you represent, warrant and covenant that you are a person of the legal age of consent where you are located or an entity engaged in the development of software applications. If you are prohibited under applicable law from using the Developer Tools for any reason, you may not use any Developer Tools. You agree to comply with all applicable laws and regulations (including without limitation laws and regulations related to export controls) in connection with your use of the Developer Tools.
Your use of the Developer Tools and Your App may not, directly or indirectly, do or attempt any of the following:
Darwin Tech sets and enforces limits on your use of the Developer Tools (e.g., limiting the number of API requests that you may make or the number of Users you may serve), in our sole discretion. You may not, and may not attempt to, circumvent such limits.
ANY USE OF THE DEVELOPED TOOLS IN VIOLATION OF THE FOREGOING RESTRICTIONS IS STRICTLY PROHIBITED AND UNLICENSED. If Darwin Tech believes, in our sole discretion, that you have violated or have attempted to violate any term, condition or the spirit of any of these restrictions, your license to and ability to use and access the Developer Tools may be temporarily or permanently revoked, with or without notice.
You agree to follow the registration or credentialing requirements (if any) established by Darwin Tech for access to the Developer Tools. All Developer Tools access keys or credentials are Darwin Tech’s Confidential Information and may not be shared with third parties.
If you send us any feedback, suggestions, bug reports, enhancements, recommendations, comments, ideas or any other response regarding the Developer Tools or our services (collectively, "Feedback"), such Feedback is provided on a non-confidential basis (notwithstanding any notice to the contrary you may include in any accompanying communication), and Darwin Tech shall have the right to use such Feedback at its discretion, including, but not limited to the incorporation of such suggested changes into the Developer Tools or our services. You hereby grant Darwin Tech an unlimited, irrevocable, perpetual, sublicensable (through multiple tiers), transferable, royalty-free license to use and exploit any such feedback or suggestions for any purpose without any restriction, obligation or compensation to you.
You acknowledge and agree that Darwin Tech may be independently creating applications, content, and other products or services that may be similar to or competitive with Your App and its content or features. Nothing in this Agreement will be construed as restricting or preventing Darwin Tech from creating and fully exploiting Your App, content, features and other items, without any obligation to you, or independently creating software, tools or other technology similar to Your App, including any underlying technology therein.
If Darwin Tech believe that there is a violation of these Developer Terms that can simply be remedied by your modification or update of Your App, Darwin Tech will, in most cases, contact you and request direct action rather than intervene. Darwin Tech may use your name, address and other contact details to contact you or provide this contact information to any third party that reasonably, in Darwin Tech's sole determination, claims that you do not possess all of the necessary intellectual property rights. In some instances, Darwin Tech may directly handle and take appropriate action, in its sole discretion, if you are not responsive or if Darwin Tech believe there is a credible risk of harm to Darwin Tech or any third parties.
Darwin Tech reserves the right to audit Your App at any time to ensure they do not violate our terms and policies. You agree that you will cooperate with inquiries related to such an audit and provide us with proof that Your App complies with our terms and policies. If you fail an audit before notifying us of any issues, penalties will be more severe.
We may terminate these Developer Terms, suspend or terminate your Darwin Tech account at any time for any reason. We may add or remove, suspend, stop, delete, discontinue or impose conditions on the Developer Tools or any feature or aspect of the Developer Tools. We will take reasonable steps to notify you of termination by email or at the next time you attempt to access your account or the Developer Tools. You may also terminate these Developer Terms by deactivating your Darwin Tech account at any time.
If these Developer Terms or your Darwin Tech account are terminated or suspended for any reason or no reason: (a) the license and any other rights granted under these Developer Terms and any other applicable terms will end, (b) we may (but have no obligation to) delete your information and account data stored on our servers, and (c) Darwin Tech shall not be liable to you or any third party for compensation, reimbursement, or damages for any termination or suspension of your Developer Tools, or for deletion of your information or account data.
If your Darwin Tech account is terminated or suspended, you agree to: a) continue to be bound by these Developer Terms, b) immediately stop using the Developer Tools; c) immediately stop accessing all Darwin Tech content; and d) delete all Darwin Tech content from your systems. You further agree that Darwin Tech has the right to audit your deletion of all Darwin Tech content, including after your Darwin Tech account has been terminated.
DEVELOPER TOOLS ARE PROVIDED "AS IS" WITHOUT REPRESENTATION OR WARRANTY, WHETHER IT IS EXPRESS, IMPLIED, OR STATUTORY. WITHOUT LIMITING THE FOREGOING, DARWIN TECH SPECIFICALLY DISCLAIMS ANY IMPLIED WARRANTIES OF MERCHANTABILITY, FITNESS FOR A PARTICULAR PURPOSE, OR NON-INFRINGEMENT.
DARWIN TECH DOES NOT WARRANT OR GUARANTEE THAT THE DEVELOPER TOOLS ARE ACCURATE, RELIABLE OR CORRECT; THAT THE DEVELOPER TOOLS WILL MEET YOUR REQUIREMENTS; THAT THE DEVELOPER TOOLS WILL BE AVAILABLE AT ANY PARTICULAR TIME OR LOCATION, UNINTERRUPTED, ERROR-FREE, WITHOUT DEFECT OR SECURE; THAT ANY DEFECTS OR ERRORS WILL BE CORRECTED; OR THAT THE DEVELOPER TOOLS ARE FREE OF VIRUSES OR OTHER HARMFUL COMPONENTS. ANY CONTENT OR DATA DOWNLOADED OR OTHERWISE OBTAINED THROUGH THE USE OF THE DEVELOPER TOOLS ARE DOWNLOADED AT YOUR OWN RISK AND YOU WILL BE SOLELY RESPONSIBLE FOR ANY DAMAGE TO YOUR PROPERTY OR LOSS OF DATA THAT RESULTS FROM SUCH DOWNLOAD.
Darwin Tech does not warrant, endorse, guarantee, or assume responsibility for any product or services advertised or offered by a third party. Darwin Tech does not have control of, or liability for, goods or services that are paid for using the Developer Tools.
TO THE MAXIMUM EXTENT PERMITTED BY APPLICABLE LAW, IN NO EVENT SHALL DARWIN TECH BE LIABLE FOR ANY DIRECT, INDIRECT, PUNITIVE, INCIDENTAL, SPECIAL, CONSEQUENTIAL, OR EXEMPLARY DAMAGES, INCLUDING WITHOUT LIMITATION DAMAGES FOR LOSS OF PROFITS, GOODWILL, USE, DATA, OR OTHER INTANGIBLE LOSSES, THAT RESULT FROM THE USE OF, INABILITY TO USE, OR UNAVAILABILITY OF THE DEVELOPER TOOLS. IN ALL CASES, DARWIN TECH WILL NOT BE LIABLE FOR ANY LOSS OR DAMAGE THAT IS NOT REASONABLY FORESEEABLE.
UNDER NO CIRCUMSTANCES WILL DARWIN TECH BE RESPONSIBLE FOR ANY DAMAGE, LOSS, OR INJURY RESULTING FROM HACKING, TAMPERING, OR OTHER UNAUTHORIZED ACCESS OR USE OF THE DEVELOPER TOOLS OR YOUR DARWIN TECH ACCOUNT, OR THE INFORMATION CONTAINED THEREIN.
TO THE MAXIMUM EXTENT PERMITTED BY APPLICABLE LAW, DARWIN TECH ASSUMES NO LIABILITY OR RESPONSIBILITY FOR ANY (I) ERRORS, MISTAKES, OR INACCURACIES OF THE DEVELOPER TOOLS OR CONTENT; (II) PERSONAL INJURY OR PROPERTY DAMAGE, OF ANY NATURE WHATSOEVER, RESULTING FROM YOUR ACCESS TO OR USE OF THE DEVELOPER TOOLS; (III) ANY UNAUTHORIZED ACCESS TO OR USE OF OUR SECURE SERVERS AND/OR ANY AND ALL PERSONAL INFORMATION STORED THEREIN; (IV) ANY INTERRUPTION OR CESSATION OF TRANSMISSION TO OR FROM THE DEVELOPER TOOLS; (V) ANY BUGS, VIRUSES, TROJAN HORSES, OR THE LIKE THAT MAY BE TRANSMITTED TO OR THROUGH THE DEVELOPER TOOLS BY ANY THIRD PARTY; (VI) ANY ERRORS OR OMISSIONS IN ANY CONTENT OR DATA OR FOR ANY LOSS OR DAMAGE INCURRED AS A RESULT OF THE USE OF ANY CONTENT OR DATA POSTED, EMAILED, TRANSMITTED, OR OTHERWISE MADE AVAILABLE THROUGH THE DEVELOPER TOOLS; AND/OR (VII) YOUR SERVICES.
TO THE MAXIMUM EXTENT PERMITTED BY APPLICABLE LAW, THE TOTAL LIABILITY OF DARWIN TECH IS LIMITED TO US$100.
THIS LIMITATION OF LIABILITY SECTION APPLIES WHETHER THE ALLEGED LIABILITY IS BASED ON CONTRACT, TORT, NEGLIGENCE, STRICT LIABILITY, OR ANY OTHER BASIS, EVEN IF DARWIN TECH HAS BEEN ADVISED OF THE POSSIBILITY OF SUCH DAMAGE. THE FOREGOING LIMITATION OF LIABILITY SHALL APPLY TO THE FULLEST EXTENT PERMITTED BY LAW IN THE APPLICABLE JURISDICTION.
You will indemnify, defend, and hold us and our processors (and our respective employees, directors, agents, affiliates and representatives) harmless from and against any and all claims, costs, losses, damages, judgments, tax assessments, penalties, interest, and expenses (including without limitation reasonable attorneys’ fees) arising out of any claim, action, audit, investigation, inquiry, or other proceeding instituted by a person or entity that arises out of or relates to: (a) any actual or alleged breach of your representations, warranties, or obligations set forth in these Developer Terms, including without limitation any violation of our policies; (b) your wrongful or improper use of the Developer Tools; (c) your violation of any third-party right, including without limitation any right of privacy, publicity rights or Intellectual Property Rights; (d) your violation of any law, rule or regulation of the United States or any other country; or (e) any other party’s access and/or use of the Developer Tools with your unique name, password or other appropriate security code.
We may amend these Developer Terms and the documentation and guidelines accompanying the applicable Developer Tools, at any time with notice that we deem to be reasonable in the circumstances, by posting the revised version on our website or communicating it to you through your Darwin Tech account (each a "Revised Version"). The Revised Version will be effective as of the time it is posted, but will not apply retroactively. Your continued use of and access to the Developer Tools after the posting of a Revised Version constitutes your acceptance of such Revised Version. Any Dispute (as defined below) that arose before the changes will be governed by the terms of service in place when the Dispute arose.
"Disputes" are defined as any claim, controversy, or dispute between you and Darwin Tech, its processors, suppliers or licensors (or their respective affiliates, agents, directors or employees), whether arising before or during the effective period of these Developer Terms, and including any claim, controversy, or dispute based on any conduct of you or Darwin Tech that occurred before the effective date of these Developer Terms, including any claims relating in any way to these Developer Terms, or any other aspect of our relationship.
You and Darwin Tech agree that any and all Disputes, except those that are resolved informally or brought in a small claims court, will be arbitrated by a neutral arbitrator who has the power to award the same individual damages and individual relief that a court can. ANY ARBITRATION UNDER THESE GENERAL TERMS WILL ONLY BE ON AN INDIVIDUAL BASIS; CLASS ARBITRATIONS, CLASS ACTIONS, REPRESENTATIVE ACTIONS, AND CONSOLIDATION WITH OTHER ARBITRATIONS ARE NOT PERMITTED. YOU WAIVE ANY RIGHT TO HAVE YOUR CASE DECIDED BY A JURY AND YOU WAIVE ANY RIGHT TO PARTICIPATE IN A CLASS ACTION AGAINST DARWIN TECH. If any provision of this arbitration agreement is found unenforceable, the unenforceable provision will be severed, and the remaining arbitration terms will be enforced (but in no case will there be a class or representative arbitration).
Before an arbitration is commenced, you or Darwin Tech agree to attempt to avoid the costs of formal dispute resolution by giving each other a full and fair opportunity to address and resolve a Dispute informally. Both parties recognize that this is an important requirement, and that breach of this requirement would be a material breach of the Terms. To provide this opportunity, before commencing any arbitration or suit, each party agrees to send to the other party a written Notice ("Notice"). Any Notice to Darwin Tech should be sent by mail to Darwin Tech LLC, Attn: Legal, 111 Pacer, Irvine, CA 92618. Any Notice sent to you will be sent to the address on file for your account. The Notice must: (i) include your name and account number; (ii) provide detailed information sufficient to evaluate the merits of the claiming party’s individualized claim and for the other party to determine if an amicable resolution is possible; and (iii) set forth the specific relief sought, including whatever amount of money is demanded and the means by which the demanding party calculated the claimed damages. Both parties agree that they will attempt to resolve a dispute through an informal negotiation within sixty (60) days from the date the Notice is sent. After that sixty (60) day period and not before, either party may commence arbitration. Each party agrees that state courts in the City and County of Los Angeles, California, or federal court for the Central District of California, referenced below, may enter injunctive relief to enforce the pre-filing requirements of this paragraph, including an injunction to stay an arbitration that has been commenced in violation of this paragraph.
If we are not able to resolve the Dispute by informal negotiation or, as provided below, in a small claims court, all Disputes will be resolved finally and exclusively by binding individual arbitration with a single arbitrator (the "Arbitrator") administered by the American Arbitration Association (https://www.adr.org) according to these Developer Terms and the Commercial Arbitration Rules for that forum, except you and Darwin Tech will have the right to file early or summary dispositive motions and to request that the AAA’s Expedited Procedures apply regardless of the claim amount. Except as set forth above, the Arbitrator shall be responsible for determining all threshold arbitrability issues, including issues relating to whether the Terms of Service, Developer Terms and/or any aspect thereof are enforceable, unconscionable or illusory and any defense to arbitration, including waiver, delay, laches, or estoppel.
Subject to applicable jurisdictional requirements, either party may elect to pursue a Dispute in a local small-claims court rather than through arbitration so long as the matter remains in small claims court and proceeds only on an individual basis. If a party has already submitted an arbitration demand to the AAA, the other party may, in its sole discretion, inform the AAA that it chooses to have the Dispute heard in small claims court. At that time, the AAA will close the arbitration and the Dispute will be heard in the appropriate small claims court, with no fees due from the arbitration respondent.
The Federal Arbitration Act, 9 U.S.C. §§ 1-16, including its procedural provisions, fully applies. Any arbitration hearing will occur in Los Angeles, California, at another mutually agreeable location or, if both parties agree, by telephone or videoconference. The Arbitrator’s award will be binding on the parties and may be entered as a judgment in any court of competent jurisdiction. Darwin Tech values your privacy, particularly with respect to your financial transactions and data. Each of the parties shall maintain the confidential nature of the arbitration and shall not (without the prior written consent of the other party) disclose to any third party the fact, existence, content, award, or other result of the arbitration, except as may be necessary to enforce, enter, or challenge such award in a court of competent jurisdiction or as otherwise required by applicable law. While an arbitrator may award declaratory or injunctive relief, the Arbitrator may do so only with respect to the individual party seeking relief and only to the extent necessary to provide relief warranted by the individual party’s claim. The Arbitrator’s decision and judgment thereon will not have a precedential or collateral estoppel effect.
In accordance with the AAA Rules, the party initiating the arbitration (either you or us) is responsible for paying the applicable filing fee. For purposes of this arbitration provision, references to you and Darwin Tech also include respective subsidiaries, affiliates, agents, employees, predecessors, successors and assigns as well as authorized users or beneficiaries of the Developer Tools and our services.
You may reject this provision, in which case only a court may be used to resolve any Dispute. To reject this provision, you must send us an opt-out notice (the "Opt Out") within thirty (30) days after you create a Darwin Tech account or we first provide you with the right to reject this provision. Opting out will not affect any other aspect of the Terms of Service, Developer Terms, or any other or future agreements you may reach to arbitrate with us.
Subject to and without waiver of the arbitration provisions above, you agree that any judicial proceedings (other than small claims actions as discussed above) will be brought in and you hereby consent to the exclusive jurisdiction and venue in the state courts in the City and County of Los Angeles, California, or federal court for the Central District of California.
These Developer Terms and any Dispute will be governed by the Federal Arbitration Act, as set forth above, and by California law and/or applicable federal law, without regard to its choice of law or conflicts of law principles.
Any action or proceeding by you relating to any Dispute must commence within one (1) year after the cause of action accrues.
The Developer Tools and documentation are intended for use by businesses and organizations and not for consumer purposes. To the maximum extent permitted by law, you hereby acknowledge and agree that consumer laws do not apply. If, however, any consumer laws do apply and cannot otherwise be lawfully excluded, nothing in these Developer Terms will restrict, exclude or modify any statutory warranties, guarantees, rights or remedies you have, and our liability is limited (at our option) to the replacement or repair of the Developer Tools.
These Developer Terms and any rights and licenses granted hereunder may not be transferred or assigned by you and any attempted transfer or assignment will be null and void.
These Developer Terms and any other applicable terms or policies are a complete statement of the agreement between you and Darwin Tech regarding the Developer Tools. If any provision of these Developer Terms is invalid or unenforceable under applicable law, then it will be changed and interpreted to accomplish the objectives of such provision to the greatest extent possible under applicable law, and the remaining provisions will continue in full force and effect. These Developer Terms do not limit any rights that Darwin Tech may have under trade secret, copyright, patent, or other laws. No waiver of any term of these Developer Terms shall be deemed a further or continuing waiver of such term or any other term.
The rights and obligations of either party that by their nature would continue beyond the expiration or termination of these Developer Terms will survive expiration or termination of these Developer Terms, including without limitation, prohibited actions, warranty disclaimers, indemnities, limitations of liability, and general provisions.