API Licensing Terms

API LICENSING TERMS

Developer is on the Fortellis Automotive Commerce Exchange platform (the “Exchange”). CDK desires to provide, and Developer desires to access and use, the API(s) and Data set forth in the Agreement for Developer's use in its applications, services, or systems for certain CDK and/or Developer Clients.

Definitions.As used in this Agreement, the following terms will have the meanings set forth below.
1. “Affiliate” means a business entity (including business entities acquired in the future) that, directly or indirectly, controls, is controlled by, or is under common control with, another business entity. For purposes of this definition only, the term “control” means legal, beneficial, or equitable ownership, directly or indirectly, of more than fifty percent (50%) of the ownership interest (e.g., voting stock for corporations, capital and profits for partnerships and limited liability companies) of the applicable business entity.
2. “Agreement” means the Order and these API Licensing Terms.
3. “API” means an application programming interface licensed by Developer under the Agreement.
4. “CDK” means CDK Global, LLC, a Delaware limited liability company with offices at 1950 Hassell Road, Hoffman Estates, IL 60169, or an affiliate thereof.
5. “CDK Clients” means a user of a CDK System.
6. “CDK Interface Property” means the API(s) and any software and specifications used by CDK to develop, maintain or operate the API(s), together with any associated intellectual property rights therein.
7. “CDK Marks” means the trade names, trademarks, service marks, logos and any variation thereof that are proprietary to CDK.
8. “CDK System” means any application, service, system, or database provided by CDK for use by motor vehicle dealers, motor vehicle original equipment manufacturers (“OEMs”), motor vehicle distributors, or independent software vendors.
9. “Certification” ccurs when the Developer completes all requirements set forth at https://community.fortellis.io/community/forum/app-certification-process/cdk-api-certificatio
10. “Data” means the data accessed, sent, and/or received through the API(s) as set forth in the Order.
11. “Developer” means the party named as “Developer” in the Order.
12. “Developer App” means an application, solution, or service provided by Developer that incorporates, accesses or uses any API. Each Develop App will be identified in the Order.
13. “Developer Client” means a user of the Developer App.
14. “Documentation” means the technical, design and/or functional documentation set forth in the Order or at Fortellis.io for the applicable API.
15. “Enrollment Agreement” means an agreement by a Joint Client that permits CDK to allow Developer access to the CDK System used by such Joint Client via the API.
16. “Exchange Agreement” means the agreement entered into by Developer and CDK setting forth the terms and conditions governing Developer’s participation on the Exchange.
17. “Joint Client” means a CDK Client that is also a Developer Client.
18. “Order” means the document or online agreement entered into by Developer and CDK to license specific API(s) and/or Data. Each Order will describe the API being licensed, the applicable Fees, and will incorporate these API Licensing Terms.
19. “Recertification” occurs when the Developer completes Certification after a change has occurred within either the Developer App or APIs used to support the Developer App.
20. “Third Party” means an entity that is neither: (i) a party hereto, nor (ii) an Affiliate of a party hereto.
21. Singular and Plural Terms. Where the context of these API Licensing Terms requires, singular terms shall be considered plural, and plural terms shall be considered singular.
Use of CDK API(s). The terms in this Section 2 apply to Developer’s access to and use of the API(s) and Data.
1. Except as otherwise agreed to in the Exchange Agreement and Order and the Enrollment Agreement (if applicable), CDK: (i) grants to Developer a limited, revocable, non-exclusive, non-sublicensable, non-transferable, non-assignable license, solely while the Exchange Agreement , this Agreement, Enrollment Agreement (if applicable) and the applicable Order(s) are in effect, to access and use the API(s) and Data solely for the purposes of providing the applicable Developer App(s) as set forth in the Order; and (ii) will use commercially reasonable efforts to make available the API(s) and Data to Developer for use with Developer App(s), as set forth in the Order.
2. Developer acknowledges, without limiting any other rights CDK may have, that CDK owns all right, title and interest in the CDK Interface Property. Nothing in this Agreement shall transfer any right, title or interest in the CDK Interface Property to Developer or give Developer any right, title or interest in or to the CDK Interface Property, or to any data residing on any CDK Systems.
3. Developer is solely responsible for all aspects of each Developer App. Developer will resolve any dispute related to a Developer App or its use or the use of any API or Data that may arise between or among Developer, any Joint Client or Developer Client, and/or any other Third Party.
4. Use of the API(s) by Developer is limited to accessing, sending, and receiving Data in connection with providing the Developer App(s) to Joint Clients or Developer Clients as provided in the Order. Developer acknowledges and agrees that it must obtain CDK’s prior written approval of any additional uses of the API(s) or Data.
5. To the extent Developer receives data from a Joint Client’s CDK System via API(s), it shall be responsible for obtaining an executed Enrollment Agreement (in a form to be provided by CDK) from each Joint Client prior to Developer’s use of the API(s) with such Joint Client and to obtain the relevant consent and/or license from each Data owner prior to accessing and using such Data. To the extent Developer receives data pursuant to the foregoing sentence, Developer hereby represents and warrants that it (i) has entered into an Exchange Agreement that will remain in effect during the Term of the Agreement; (ii) will only use the API(s) for such Joint Client to the extent allowed under the Enrollment Agreement; and (iii) has obtained consent and/or license from the Data owners (including, if applicable, CDK) prior to accessing any Data as contemplated by the Order and will only use the Data to the extent granted by such consent and/or license. For the avoidance of doubt, no Enrollment Agreement is required to the extent CDK has rights to license applicable Data.
6. Developer shall not (i) sell, resell, license, sublicense, distribute, make available, rent or lease or otherwise commercially exploit to any Third Party the CDK Interface Property; (ii) use any API to store or transmit infringing, libelous, or otherwise unlawful or tortious material, or to store or transmit material in violation of Third Party privacy rights; (iii) use any API to send or store any code, files, scripts, agents or programs intended to do harm, including, for example, viruses, worms, time bombs and Trojan horses; (iv) modify or make derivative works based upon the API(s) or Data; (v) create Internet “links” to any API or “frame” or “mirror” them; (vi) permit direct or indirect access to or use of any CDK Interface Property or Data in a way that circumvents a contractual usage limit; (vii) interfere with or disrupt the integrity of performance of any API or the data contained on CDK Systems; (viii) attempt to gain access to the CDK Systems or data on CDK Systems in a manner not authorized by CDK; or (ix) cause or permit any Third Party to do any of the foregoing.
7. Developer shall complete Certification, at its own cost, prior to consumption of any API. Upon the request of Fortellis, Developer shall Recertify the Developer App. Such requests shall be limited to once per calendar year for each Developer App, except that Fortellis may also make such requests any time integration is added for a Developer App. Reasons Fortellis may request re-certification of a Developer App include, but are not limited to: (i) Developer adding or removing an API from integrating to the Developer App; (ii) Developer’s segmentation of a Developer App; (iii) modification of the integration related to Exchange performance impacts; and (iv) Fortellis’ request for Developer to adopt new technology. During Recertification Fortellis may require Developer to adopt updates at Developer’s sole cost and expense, including, without limitation, Developer Application updates that provide performance improvements or security enhancements or other benefits for Joint Clients.
8. CDK shall be free to use, reproduce, and license any suggestions, comments or other feedback provided by Developer to CDK with respect to the API(s), Data, or CDK Interface Property (collectively, “Feedback”) within the API(s), Data, or CDK Interface Property, without obligation or restriction of any kind.
CDK Responsibilities
1. During the term of the Agreement, the API(s) will materially conform to the Documentation and shall provide the functions and features described in the Documentation. CDK may, in its sole discretion, modify the API(s) and Documentation from time to time. CDK will make reasonable efforts to provide notice to Developer of such changes at least 30 days prior to the changes taking effect.
2. During the term of the Agreement, CDK will not intentionally introduce any bugs, errors, or viruses into the API(s) or Data.
3. CDK represents and warrants that, to its knowledge, the API(s) and Data and their use in compliance with the Documentation do not infringe, or constitute an infringement or misappropriation of any patent, copyright, trademark, trade secret or other proprietary rights of any Third Party.
4. Developer’s sole and exclusive remedy for any breach of CDK obligations set forth in this Section 3 shall be for CDK to use its commercially reasonable efforts to remedy such breach or, if CDK cannot remedy such breach consistent with its obligations, a refund of the relevant Fees paid to CDK for Data that was not properly provided through the APIs.
Use of CDK Marks
1. Any rights in the CDK Marks not specifically granted to Developer under this Section are reserved by CDK and Developer may not make any use of the CDK Marks without the prior written consent of CDK. Except as expressly granted in Section 4(b), these API Licensing Terms do not grant Developer any right, title, or interest in or to the CDK Marks and all use by Developer of the CDK Marks (including any goodwill associated therewith) will inure to the benefit of CDK.
2. Subject to the terms and conditions of this Agreement, CDK hereby grants to Developer a revocable, non-exclusive, non-transferable, non-assignable, limited license to use the CDK Marks in the United States and Canada during the term of the Agreement solely to promote the use of the Developer App(s) with the APIs. Developer may include the CDK Marks in a mutually agreed location in its marketing of the use of the Developer App(s) with the API(s). Developer’s trademarks, product or service names, and/or company name shall be the more prominent mark on all materials bearing the CDK Marks and Developer agrees that each use of the CDK Marks is subject to the prior approval by CDK. Except as specifically provided in this Section 4, Developer shall not represent in any way that its App(s) are produced, developed, endorsed or otherwise affiliated with CDK.
3. No party may issue press releases and other communications publicly promoting Developer’s use of the API(s) and/or Data without the written approval of the other party.
Fees; Payment; Exchange as Official System of Record.
1. Developer agrees to pay all fees that are specified in the Order or as otherwise applicable pursuant to Section 5(b) (the “Fees”) within thirty (30) days of the date of an invoice for such Fees. CDK may elect to have the Exchange invoice and collect Fees on behalf of CDK. Fees which are not paid within such period shall bear interest at the rate of eighteen percent (18%) per annum compounded monthly. The Fees are exclusive of sales, use or other applicable taxes (other than taxes based on CDK’s net income), and Developer agrees to pay any such taxes.
2. CDK may modify the Fees by posting the modified Fees at a website link provided to Developer by CDK in advance or require new payment methods (e.g., auto pay via credit cards or debit cards) by providing Developer with written notice of such change at least 60 days prior to such change taking effect. Developer’s continued use of the API(s) after the effective date of such change constitutes Developer’s acceptance of the change.
3. Developer and CDK agree that the Exchange shall be the sole system of record for determining the basis for the Fees owed by Developer to CDK. Developer agrees to submit any disputes regarding any Fees in writing to CDK within 30 days of the invoice for such Fees, and to pay undisputed Fees on a timely basis.
4. If Developer fails to timely pay the full undisputed amount on an invoice then CDK may, in addition to any other remedy, block access to the API(s) until such time as Developer pays such past due amount.
Term and Termination.
1. The initial term (“Initial Term”) of the Agreement shall be for the period set forth in the Order unless otherwise terminated earlier as set forth in this Section 6. After the end of the Initial Term, the Agreement will automatically renew for consecutive one (1) year renewal periods (each a “Renewal Term”) until terminated by either party as set forth in this Section 6.
2. Unless otherwise noted in the Order, either party may terminate the Agreement for any reason with at least thirty (30) days’ prior written notice to the other party.
3. The Agreement shall immediately terminate if the Exchange Agreement between Developer and CDK terminates or expires for any reason.
4. CDK may terminate the Agreement immediately if CDK reasonably determines that Developer has breached these API Licensing Terms.
5. Upon the termination or expiration of the Agreement for any reason, Developer shall immediately stop using the API(s), Data and CDK Marks for any purpose whatsoever and Developer shall remain liable to CDK for all amounts then owed to CDK (and any amounts that become due and payable pursuant to the terms of the Agreement after the applicable termination date).
6. Upon the termination or expiration of the Agreement, each party shall return to the other party or certify to the other party that it has destroyed all materials provided by the other party under the Agreement.
7. All provisions of this Agreement which contemplates its continuing effectiveness, including Sections 1-2 and 7-10 of this Agreement, shall survive the termination of the Agreement.
No Warranty; Indemnification.
1. Except as set forth in this Agreement, the API(s) and Data are provided to Developer on an “AS IS, WHERE IS” basis and CDK makes no warranty whatsoever as to the content, condition of, or usability of the API(s) or Data.
2. Without limiting the foregoing, CDK EXPRESSLY DISCLAIMS THE IMPLIED WARRANTIES OF MERCHANTABILITY, NON-INFRINGEMENT AND FITNESS FOR A PARTICULAR PURPOSE. CDK DOES NOT WARRANT THAT THE API(s) WILL BE AVAILABLE AT ALL TIMES OR IN ALL LOCATIONS, THAT THEY WILL MEET THE REQUIREMENTS OF DEVELOPER OR THAT THEIR OPERATION WILL BE UNINTERRUPTED OR ERROR FREE.
3. Developer shall defend, indemnify and hold CDK and its officers, directors, shareholders, employees, agents, successors and/or assigns harmless from and against all damages, liabilities, costs and expenses (including, without limitation, all reasonable attorneys’ fees and expenses) (“Claims”) incurred by CDK (including, without limitation, as a result of Third Party claims) that arise out of, either directly or indirectly, (i) Developer’s breach of Section 2 of the Agreement, (ii) the Developer App’s or any content provided by Developer infringing any patent, trademark, copyright or any other proprietary right or the Developer’s infringement of any Third Party’s proprietary rights through its use of the API(s), or (iii) any action or other claim by any CDK Client or Developer Client arising out of Developer’s or such CDK Client or Developer Client’s access or use of the Developer App.
4. CDK will give Developer prompt written notice of any Claims; provided, however, that Developer’s obligations under Section 7(c) shall continue even if CDK does not provide Developer with such prompt notice of any Claims to the extent such failure did not materially prejudice Developer. Developer shall have the right to control the defense and negotiation of all Claims set forth in Section 7(c); provided, however, that Developer may not settle any Claim without the prior written consent of CDK if such settlement admits liability on the part of CDK or imposes any liability or obligation upon CDK. CDK may, at its expense, retain counsel to assist and observe Developer’s defense of such Claim. CDK shall cooperate fully with Developer in connection with such Claim at Developer’s expense. All indemnification obligations shall survive the termination of the Agreement.
Limitation of Liability. EXCEPT AS SET FORTH IN THIS SECTION 8, IN NO EVENT SHALL EITHER PARTY BE RESPONSIBLE FOR ANY SPECIAL, INDIRECT, INCIDENTAL OR CONSEQUENTIAL DAMAGES WHICH THE OTHER PARTY OR ANY THIRD PARTY MAY INCUR OR EXPERIENCE ON ACCOUNT OF ENTERING INTO OR RELYING ON THIS AGREEMENT OR USING THE SERVICES PROVIDED HEREIN, EVEN IF SUCH PARTY HAS BEEN ADVISED OF THE POSSIBILITY OF SUCH DAMAGES AND REGARDLESS OF WHETHER SUCH DAMAGE IS BASED ON CONTRACT, TORT OR ANY OTHER THEORY OF LIABILITY. EXCEPT AS SET FORTH IN THIS SECTION 8, IN NO EVENT SHALL THE AGGREGATE LIABILITY OF EITHER PARTY ARISING OUT OF OR RELATED TO THIS AGREEMENT EXCEED THE TOTAL FEES PAID AND/OR PAYABLE TO CDK UNDER THE AGREEMENT DURING THE SIX (6) MONTH PERIOD PRECEDING THE LAST ACT OR OMISSION GIVING RISE TO SUCH LIABILITY. THE LIMITATIONS OF LIABILITY SET FORTH IN THIS SECTION 8 SHALL NOT APPLY WITH RESPECT TO (I) DEVELOPER'S PAYMENT OBLIGATIONS, AND (II) ANY INDEMNIFICATION OBLIGATIONS SET FORTH IN THIS AGREEMENT.
Laws and Governmental Regulations; Safeguards.
1. Laws and Governmental Regulations. Each party shall be responsible for compliance with all laws and governmental regulations affecting its respective business, and neither CDK nor Developer shall have any responsibility relating to the other party’s responsibility therefor, including, without limitation, advising the other party of its responsibilities in complying with any laws or governmental regulations affecting its business. Developer covenants, represents and warrants to CDK that it will comply with all applicable laws, regulations and policies related to the development, marketing, sale, distribution and use of each Developer App, the API(s), and the Data.
2. Data Safeguards. Each party acknowledges and agrees that the Data may contain Personal Information. “Personal Information” means any data (regardless of format) that (i) identifies or can be used to identify, contact or locate a natural person, or (ii) pertains in any way to an identified natural person. “Personal Information” may include nonpublic personal information, as defined in Gramm-Leach-Bliley Act. Each party represents and warrants that it (and any subcontractor involved in the provision of the Developer App) has implemented and shall maintain, with respect to the access to or storage, disposition, acquisition, extraction, processing, transmission or otherwise receipt of the Data, reasonable administrative, technical and physical measures, to (i) maintain the security and confidentiality of the Data; (ii) protect such data from reasonably foreseeable threats or hazards to its security or integrity; and (iii) protect such data against unauthorized access, use, or modification.
3. Incident Monitoring and Notification. Each party shall continuously monitor all its systems involved in the provision of the Developer App and processing of Data for security breaches, violations and suspicious (questionable) activity. Unless prohibited by law, each party must notify the other as soon as practicable after such party becomes aware of or confirms that there is a reasonable belief that there has been, while in its care, custody or control, unauthorized access to or use of any Personal Information (each, an “Incident”), including, without limitation, access to or use of incorrect data that may have been sent to Developer in error. To the extent not prohibited by regulatory or law enforcement authorities, each party will promptly provide to the other party in writing a description of the Incident, the specific data exposed, the proposed remediation action and plan, each party’s point of contact for the Incident and the contact information for any law enforcement officials who are involved. To the extent not prohibited by regulatory or law enforcement authorities, the discovering party will provide regular and detailed status updates on any investigation of the Incident and will cooperate with the other party in any Incident investigation, remediation (for example, deleting the incorrect data received, obtaining appropriate attestation from the entity or people who may have accessed the data in error), breach notification and communication process.
4. Reporting. Each party shall maintain industry standard security management policies and practices as they apply to the processes and systems required to provide the services hereunder and/or safeguard the Data. CDK shall have the right to conduct an audit or request a report regarding Developer’s compliance with this Section 9 at any time if CDK reasonably believes that any laws and/or any provision of this Section 9 have been violated by Developer.
General.
1. In the event of a conflict between the terms of the Order and these API Licensing Terms, the terms of these API Licensing Terms shall govern. No Order can modify the requirements of these API Licensing Terms without specific reference to this Section 10(a).
2. The parties agree to the use of electronic documents and records in connection with the Agreement and all future documents and records in connection with the subject matter of the Agreement, including this electronic disclosure notice, and that this use satisfies any requirement that the parties must provide these documents and their content in writing.
3. The Agreement sets forth the entire agreement of the parties as to the subject matter thereof and supersedes all existing agreements and all other oral, written or other communications between them concerning its subject matter. There are no warranties, representations or agreements other than those set forth in this Agreement.
4. If any provision of the Agreement is held to be invalid, illegal, or unenforceable, the validity, legality or enforceability of the remaining provisions shall not be affected or impaired thereby.
5. The headings in the Agreement are intended for convenience of reference only and shall not affect its interpretation.
6. The Agreement shall be governed by and interpreted in accordance with the laws of the State of Illinois without reference to its conflict of laws’ principles. All disputes arising out of or relating to the Agreement, including, but not limited to, conduct and representations made during the Agreement’s formation and negotiation, based on any legal theory (including but not limited to contract, warranty, tort and fraud) will be resolved solely through binding and confidential arbitration in Cook County, Illinois, by a single arbitrator, under the International Institute for Conflict Prevention & Resolution Rules for Non-Administered Arbitration then in effect. The arbitrator may issue temporary, preliminary, or permanent injunctive or declaratory relief, but may not award punitive damages. Any issue concerning the extent to which a dispute is subject to arbitration, shall be governed by the Federal Arbitration Act and resolved by the arbitrator. Nothing in this Section will prevent a party from seeking emergency injunctive relief in a judicial proceeding in order to prevent irreparable injury. In the event that such judicial proceedings are instituted, the parties agree that once a court grants or denies a request for emergency injunctive relief, the parties will resolve all remaining disputes arising under this Section in arbitration The parties consent to the jurisdiction of state and federal courts sitting in Cook County, Illinois, in addition to any other court of competent jurisdiction for such judicial injunctive relief, and for enforcement of any judgment or arbitration award. The arbitration decision shall also remain confidential, except to the extent necessary to enforce the award in a judicial action. The parties waive any right to a trial by jury. RESOLUTION OF ALL DISPUTES, WHETHER BY ARBITRATION, LAWSUIT, ACTION OR OTHER LEGAL PROCEEDING, SHALL BE CONDUCTED AND RESOLVED ON AN INDIVIDUAL BASIS ONLY, AND NOT ON A CLASS-WIDE, MULTIPLE PLAINTIFF, MULTIPLE CLAIMANT, CONSOLIDATED OR SIMILAR BASIS. DEVELOPER WAIVES ANY RIGHT TO PARTICIPATE IN ANY WAY IN A CLASS ACTION LAWSUIT AGAINST CDK, OR TO ACT IN ANY ARBITRATION, LAWSUIT, ACTION OR OTHER LEGAL PROCEEDING AGAINST CDK IN THE INTEREST OF THE PUBLIC OR IN ANY PRIVATE ATTORNEY GENERAL CAPACITY.
7. No failure or delay on the part of either party to the Agreement to fully enforce its rights thereunder shall be construed as a waiver by such party of any default thereunder or acquiescence therein, nor shall any failure to exercise such right preclude any future exercise of such right. All rights and remedies under the Agreement shall be cumulative and not exclusive of any other rights or remedies otherwise available.
8. Each of the parties to the Agreement is acting only as an independent contractor and assumes full responsibility for each of its employees and shall be solely responsible for the payment of compensation to its personnel. The Agreement does not constitute either party hereto as the agent or legal representative of the other party and does not create a partnership or joint venture between them.
9. Notices to Developer may be given by any reasonable means, including to the email contact designated by Developer in the relevant Developer account on the Exchange. Notices to CDK shall be addressed to [email protected] ;
10. Developer acknowledges and agrees that any documents provided by CDK to Developer pursuant to the Agreement are confidential, including invoices and amounts thereon. Developer agrees to keep such documents and underlying information confidential and to instruct its employees, consultant and agents who have access to such documents to keep the same confidential.